Andrew Cuomo New York Gov. Andrew Cuomo. Photo: Evan Agostini/Invision/AP

Gov. Andrew Cuomo and state lawmakers are still trying to decide whether judges in New York will be able to assess a defendant’s alleged dangerousness, or threat to public safety, as a factor for detaining that person before their trial date as discussions on ending cash bail continue in the state Capitol.

That remains one of several sticking points on criminal justice reform, which is also expected to include changes to the state’s laws on criminal discovery and the right to a speedy trial.

The two latter issues are all but resolved, Cuomo confirmed to reporters on Tuesday, but bail reform has been the most problematic for Democrats to come to an agreement, he said. During three-way discussions between his office, the state Senate, and Assembly, they’ve been trying to decide how pretrial detention is decided without cash bail, Cuomo said.

“Discovery is close, speedy trial is close. Bail is the most complicated issue,” Cuomo said. “I think everybody would say fine, no cash bail, but then what are the grounds for preventive detention. And that’s where the district attorneys are anxious and concerned.”

State Sen. Michael Gianaris, D-Queens, has been directly involved in negotiations on ending cash bail, and sponsors legislation in his chamber to do so. He said on Tuesday that a key sticking point among lawmakers is whether the state’s judges should be able to consider a defendant’s so-called dangerousness, or threat to public safety, in determining someone’s eligibility for pretrial detention.

“It’s one of the sticking points we’re trying to work through and we’re meeting every day with both the Assembly and representatives from the governor’s office trying to hash that out,” Gianaris said.

When asked where he stood on including dangerousness in a final proposal, Cuomo did not commit to a position. He said he understood where Democrats on both sides of the issue we’re coming from, and that he expected them to resolve their differences in the final bill.

“I understand both points of view and I believe we can come to a consensus to get it passed, and that’s what we’re working on,” Cuomo said.

Alphonso David, counsel to Cuomo, followed up on that statement by noting that every other state in the country uses public safety as a factor in determining pretrial detention, suggesting that it wouldn’t be unusual for a final agreement in New York to include the same provision.

“Forty-nine states in this country have safety as a mechanism for determining pretrial detention, including the federal government,” David said. “New York is the only state that has not included. So, if we eliminate cash bail, we need a mechanism for pretrial detention and that’s really what we’re talking about.”

The District Attorneys Association of the State of New York, which represents the state’s prosecutors, is opposed to any bail reform proposal that would exclude dangerousness as a factor for pretrial detention. Albany County District Attorney David Soares, the current president of DAASNY, said any bill put forth by Democrats should allow judges to consider a defendant’s alleged threat to public safety when deciding if they should be detained pretrial.

“I don’t see how in any state you can have bail reform without either considering dangerousness or being able to have some device that a judge can use in making that very important decision,” Soares said.

Soares said judges, when making that decision, would be able to pull from several different sources in determining if that person should remain in custody ahead of his trial, including the current facts of the case and that person’s history with law enforcement.

“You borrow from a whole host of sources,” Soares said. “You are listening to your law enforcement representatives that have been involved in the investigation. They have proof that establishes probable cause. They are aware of a person’s criminal history, you’ve spoken to victims.”

The timing of when those reforms will be announced is about as clear as what will be included in them when they finally do make it to the floor for a vote. The Legislature won’t pass any bills this week to reform the state’s criminal justice system, giving them only next week to come to a deal until the state budget is due.

State law requires new bills to age for three full days before they come up for a floor vote, and final legislation to enact those reforms hasn’t been introduced. Lawmakers are scheduled to leave Albany for the week later Wednesday.

Two other scenarios are the most likely, Democrats in the Legislature said. Those reforms could be introduced later this week or early next week and passed as soon as possible after. They could also end up in the state budget, which is often used as a vessel for the policy priorities of Cuomo and state lawmakers during the first three months of the year.

Cuomo said on Tuesday he expects the latter scenario to play out as he continues to meet with the leaders from each chamber to go over what will be included in the final $175 billion spending plan.

“There are no new facts to learn. There’s no study to read. Make a decision,” Cuomo said. “We need a decision by the budget because there are no new facts and I believe we can reach a middle ground.”

Democrats in both the Senate and Assembly have said they could reach an agreement on those reforms before the budget and pass them as stand-alone bills, leaving them out of the omnibus spending legislation completely. Senate Majority Leader Andrea Stewart-Cousins, D-Westchester, said if they have bills ready before the budget’s due, they’ll be passed.

“I think that we understand that sometimes it really is a matter of time,” Stewart-Cousins said. “If we can find a space and come together and it’s all ready to go, then we go. It’s just that simple, frankly.”

Pressure on Democrats to come to a deal on the reforms continued to build this week, though not all of it focused on bail. A group of more than 100 former prosecutors, mostly from New York, issued an open letter on Tuesday supporting legislation by Sen. Jamaal Bailey, D-Bronx, that would significantly shorten the amount of time prosecutors can wait before exchanging material with the defense that they intend to use at trial.

“The practice of producing discovery materials months or years after the arrest—and usually not at all in the vast majority of cases that are resolved through plea bargaining—has had a deleterious effect on the entire criminal justice process,” the letter said. “We are certain that the criminal legal system would be more just and efficient with updated open discovery laws.”

Cuomo has said, and repeated on Tuesday, that he will not approve a state budget without criminal justice reform included. That spending plan is due at the end of March, meaning Democrats will have to come to a deal on those reforms by the end of next week or risk a late state budget.


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