Barry Kamins in his office at the New York City Bar Association. Barry Kamins. Photo by Rick Kopstein

For the first time in a half century, New York has approved a set of sweeping reforms to the state’s criminal justice system that will limit the setting of monetary bail, expand discovery in criminal cases, and enhance the right to a statutory speedy trial (L. 2019, Chapters 55, and 59). These reforms will be effective on Jan. 1, 2020. This column will review the most significant aspects of this legislation and the reader is advised to read it in full in order to appreciate its scope and breadth.

Bail

The new bail bill drastically reduces the use of monetary bail and, according to a statement made by Gov. Andrew Cuomo, under the new statute, approximately 90 percent of people who are arrested will be subject to mandatory release. Under the new law, unless a person is charged with a “qualifying offense” (see below), a court has no authority to set monetary bail, and must release the person on his or her own recognizance (ROR) (CPL 510.10(1)).

If a defendant is not charged with a qualifying offense but, in the opinion of the judge, poses a flight risk, the court still cannot set monetary bail but can select the least restrictive non-monetary alternative conditions to ROR that will reasonably assure the defendant’s return to court. (CPL 500.10(3-a)). These conditions include supervision by a pretrial services agency, reasonable restrictions on association or travel or, as a last resort, electronic monitoring.

Electronic monitoring can only be imposed, however, if the defendant is charged with a felony, and certain specified misdemeanors and no other non-monetary condition will suffice to assure reasonably a defendant’s return to court. (CPL 510.40(4)). When a court imposes this condition, it can be imposed for a maximum of 60 days with the option of continuing only upon a de novo review before a court. Finally, a person released on electronic monitoring is deemed to be “in custody” for purposes of release for an untimely conversion to a misdemeanor information (CPL 170.70), or an untimely felony hearing (CPL 180.80). (CPL 510.40(4)).

Monetary bail can still be set by a court when a defendant is charged with a “qualifying offense.” That term is defined as a “violent felony” under Penal Law 70.02 (except for robbery in the second degree (aiding another) and burglary in the second degree (in a dwelling) although an attempt to commit these crimes would still appear to constitute a “qualifying offense”; any Class A (non-drug felony) except Penal Law 220.77 (operating as a major trafficker); any felony sex offense (PL 70.80) or misdemeanor sex offense (Article 130); and about a dozen other specified crimes (CPL 510.10). When the qualifying offense is a felony, a court can also remand the defendant.

When bail is set for these offenses, a court must set three forms of bail, one of which must be either an unsecured or partially secured surety bond (CPL 520.10). In determining the appropriate amount of bail, the new law eliminates certain criteria that a court previously had to consider, and enumerates certain new criteria. For example, instead of a defendant’s reputation, employment, family ties, and length of residence in any community, a court must now take into account a defendant’s “activities and history.” Instead of a defendant’s “criminal history,” a court must now consider the defendant’s “criminal conviction record.” While a court can still consider the defendant’s record of flight to avoid prosecution, it can no longer consider a defendant’s record “in responding to court appearances when required to.” And a court must now consider a defendant’s individual financial circumstances including his ability to post bail without it being “a hardship” (CPL 510.30).

Desk Appearance Tickets

New procedures have also been adopted for desk appearance tickets (DAT) to divert people from the formal arrest process (and the police precinct). In the past, the issuance of a DAT for certain offenses was discretionary. Under the new law, a police officer must issue a DAT when a defendant is charged with an E felony (with the exception of certain escape-related offenses and sex offenses), or a misdemeanor unless one of eight exceptions apply. For example, a police officer is not obligated to issue a DAT when the defendant has an outstanding bench warrant; has failed to appear in court in the last two years; cannot provide a verifiable method of identity, including a driver’s license, passport, or public benefit card; has been charged with a domestic violence crime, sex offense or a crime for which a court can revoke or suspend a driver’s license; or appears to need medical or mental health care (CPL 150.20).

Although the issuance of a DAT is not permitted if the above exceptions exist, a police officer will later, under certain circumstances, have the discretion to issue a DAT. Thus, for example, if one of the exceptions mentioned above precludes the issuance of a DAT at the scene, a police officer must detain the defendant and take him to the stationhouse; while there, however, the officer may resolve the disqualifying factor by, for example, obtaining sufficient identification of the defendant. Although this procedure requires the initial warrantless arrest of the defendant, it does permit the issuance of a DAT at the stationhouse in lieu of bringing the defendant through the court system to appear at arraignment.

A DAT must now be returnable no later than 20 days from the date it is issued (CPL 150.40). If the return date is more than 72 hours after its issuance, a court must have “appearance reminders” sent to any defendant who gave his contact information to the police officer. The court can delegate a pretrial services agency to issue these reminders (CPL 150.80). The problem, however, is that there is no legislative mandate that counties have such agencies in place and no funding is provided in the state budget to support their establishment. In addition, the court is given the responsibility of notifying a defendant of any future court appearance by “text message, telephone call, electronic or first-class mail”; the defendant has the option of selecting the method of notification (CPL 510.43). Each year there are approximately four million appearances by defendants in criminal cases; the burden placed on the court to notify defendants may well be unmanageable.

Discovery

The new discovery law is even more sweeping. The current discovery statute is one of the most regressive in the nation, and it has now been repealed—a new CPL Article 245 will supersede it. Initially, the obligation to disclose information is no longer timed to the date of trial—it is timed to the date of arraignment. Thus, the prosecutor’s “initial discovery obligations” must be performed within fifteen calendar days of a defendant’s arraignment date. If the discoverable material is “exceptionally voluminous,” the prosecutor can take an additional thirty calendar day period to disclose. The prosecution must also disclose any statements made by the defendant no later than 48 hours before the defendant testifies in the Grand Jury (CPL 245.10).

In general, the prosecutor has a duty to make a “diligent good faith effort to ascertain the existence” of discoverable material, and any discoverable material in the possession of law enforcement, is “deemed to be in possession” of the prosecution for disclosure purposes (a codification of case law) (CPL 245.20(2). Although the Court of Appeals had previously held that New York courts lack inherent authority to compel pretrial discovery (People v. Colavito, 87 N.Y.2d 423), the new statute overrules that doctrine. Upon the defendant’s application that he or she cannot obtain certain discovery “without undue hardship,” a court may order the prosecution to disclose certain material CPL 245.30(3)).

The initial discovery obligation consists of approximately twenty-one categories of information, including material that the prosecution had not previously been required to disclose automatically. This includes the Grand Jury testimony of the victim, and the defendant; police reports; the names of witnesses (other than confidential informants) and “adequate contact information,” although “physical addresses” do not have to be disclosed; search warrants and affidavits in support of the warrants; a record of the defendant’s convictions and prosecution witnesses; the existence of any pending criminal action against prosecution witnesses; and electronically stored information from computers, cell phones, social media accounts seized by or obtained on behalf of law enforcement (CPL 245.20).

The prosecution is now required to disclose Rosario material as part of the “initial discovery obligation” (CPL 245.10(e)). This new and earlier deadline for Rosario material dramatically changes the timeline for disclosure by timing it to the arraignment instead of the date of trial. The failure of the prosecutor, however, to disclose the information shall not constitute grounds to set aside or reverse a conviction unless the defendant can establish that there is “reasonable possibility that the non-disclosure materially contributed to the result of the trial” (CPL 245.80(3)).

The prosecution also has a “supplemental discovery obligation” to disclose, no later than fifteen calendar days before trial, the defendant’s prior bad acts that will be offered under either Molineux or Sandoval (CPL 245.20(3)).

The prosecution has two other new disclosure deadlines. When a defendant is charged with a felony, and the prosecution makes a pre-indictment plea offer to a crime (not a violation), the prosecutor must disclose all discoverable items not less than three calendar days prior to the expiration date of any plea offer or any deadline imposed by the court for acceptance of the plea offer. This shorter period is designed to accommodate CPL 180.80 deadlines. If a prosecutor does not comply with this requirement, the defendant can file a motion alleging a violation of this requirement. If the court finds that the violation “materially affected” the defendant’s decision to accept or reject a plea offer, the court can order the prosecution to reinstate the lapsed or withdrawn plea offer. If the prosecution refuses, the court must preclude the admission at trial of any evidence disclosed (CPL 245.25). A guilty plea offer may not be conditioned on a defendant’s waiver of these rights.

After a defendant has been indicted, and a plea offer has been made to a crime (not a violation), the prosecution must disclose all discoverable information not less than seven calendar days prior to the expiration date of any plea offer or any deadline by the court for acceptance of the guilty plea offer. A violation of this requirement can result in the sanctions for discovery violations relating to pre-indictment guilty pleas (CPL 245.25).

After the filing of an accusatory instrument under the new statute, a prosecutor can now make a motion for a defendant to provide certain non-testimonial evidence, e.g., requiring the defendant to appear in a lineup, be fingerprinted, provide samples of blood, hair, etc. This section comports with Matter of Abe A., 56 N.Y.2d 288 (1982) (CPL 245.40).

After the People have complied with their discovery obligations, the prosecutor must file a certificate of compliance upon the defendant and the court. The certificate must contain a statement that the prosecutor has exercised due diligence, and made reasonable inquiries to “ascertain the existence of material and information subject to discovery.” The certificate must also identify the items that were disclosed to defense counsel. The court cannot sanction a prosecutor for filing a certificate in good faith when the certificate is inaccurate. The court, however, can impose certain sanctions, including the ordering of a mistrial; dismissal of charges; excluding evidence or giving an adverse inference instruction (CPL 245.50). The People shall not be deemed ready for trial for purposes of CPL 30.30, until a proper certificate of compliance has been filed.

Under a reciprocal discovery doctrine, the defendant is required to disclose certain information (previously required under the prior discovery statute) within 30 calendar days after service of the People’s certificate of compliance. In addition, the defense must now also disclose the name, address and birthdate of witnesses the defense intends to call, including any prior witness’ statements. The defendant is not required, however, to disclose the name and address of a witness being called solely to impeach a prosecution witness until after the People’s witness has testified at trial. When disclosure is complete, the defense must file a certificate of compliance upon the prosecution and court (CPL 245.10).

Flow of Information

The new law also addresses the “flow of information” between the prosecutor handling a case and the police agency generating the arrest. Absent a court order, the police must make a complete copy of its file available for the prosecution. The arresting officer or assigned detective shall notify the prosecution in writing of the existence of all known 911 call recordings or video or audio recordings from a police body-worn camera; the prosecution shall then take steps to preserve these recordings. If a defendant makes a specific request regarding a recording, the prosecutor must take reasonable steps to ensure that it is preserved (CPL 245.55).

Over the years, prosecutors had opposed discovery reform because of concerns that witnesses, and victims, would not cooperate if their identities were disclosed at early stages of the proceedings; concerns were raised that witnesses would be intimidated or harmed to prevent them from cooperating. The new discovery law provides broad authority for a court to issue a protective order to address these concerns. Thus, prosecutors can request a protective order to deny the disclosure of any information provided under the new discovery law. A court must conduct a hearing within three business days to determine whether “good cause” has been established to issue the order.

In determining whether good cause has been shown, a court may consider, among other factors, the risk of physical harm or intimidation to any person; the danger to any witness stemming from factors such as an affiliation with a criminal enterprise; and whether the defendant has a history of witness intimidation. Either party may appeal an adverse ruling; an appeal must be sought within two business days of the ruling by filing an order to show cause at the Appellate Division. This type of interlocutory appeal is a rarity in criminal cases and the statute is silent on the procedures that will be followed at the appellate level—the return date for the motion, the timing of the decision, etc.

In order to address the concerns of the prosecution, a court also has the discretion to impose conditions upon the disclosure of information by the prosecution. For example, the court can order that material be disclosed only to counsel for the defendant (in which case the defendant must be so advised on the record). In addition, a court may order that counsel cannot disclose physical copies of documents to the defendant but that the defendant can inspect redacted copies of the documents at a prosecutor’s office (CPL 245.70).

Subpoena Duces Tecum

Finally, there has been a change in the procedure for obtaining a subpoena duces tecum on government agencies. The new law dispenses with the requirement of a 24 hour notice on the agency as well as any requirement of service on the prosecutor. The agency will have three days to produce the documents, but a court can dispense with the three day period in cases of an emergency. Upon a motion to quash, a defendant need only show that the item sought is “reasonably likely to be relevant and material to the proceedings.” Previously, defense counsel had to establish that the material was likely to be “relevant and exculpatory.” See People v. Kozlowski, 11 N.Y.3d 223 (2008).

Speedy Trial

The speedy trial statute has been amended significantly. Initially, when the People state that they are ready for trial under the new law, a court must make an inquiry on the record as to the prosecution’s actual readiness. If the court finds the statement to be illusory, the court can reject it. Any statement of readiness must be accompanied or preceded by a certificate of compliance with the discovery requirement, described above. Finally, in misdemeanor cases, a prosecutor can no longer state that he is ready on only some of the charges. In addition, a statement of readiness is only valid if the prosecutor certifies that all charges have been converted, or he dismisses those charges that have not been converted (CPL 30.30(5).

The speedy trial statute will now apply to Vehicle and Traffic Law infractions although the new law does not set a time period by which the People must be ready. Thus, this amendment will address cases in which certain VTL infractions have remained after charges of VTL 1192 or VTL 509 were dismissed (CPL 30.30(1)).

In the past, a dismissal motion pursuant to the speedy trial statute could not be appealed after a plea of guilty. Under the new law, the denial can now be appealed, unless there has been a valid waiver of appeal (CPL 30.30(5).

Finally, when a defendant seeks his release pursuant to CPL 30.30(2), the motion can now be made orally without prior notice to the prosecutor. Although the statute requires a court to “promptly conduct a hearing” when periods of readiness are in dispute, the statute is silent on certain procedural issues, e.g., whether the People’s response can be oral, and whether the People must be given, or are entitled, to an adjournment to respond to a motion for which they received no notice. In addition, oral motions will be difficult to track for purposes of establishing an orderly record for appeal. The lack of sworn allegations to support the motion will undermine the reliability of the record.

Conclusion

There is no question that the new legislation, described above, will make sweeping and dramatic changes to New York’s law on discovery, bail and the right to a speedy trial. At the same time, certain provisions do not provide sufficient procedural guidelines while others create burdens for the court that seem difficult if not impossible to manage. It is hoped that the Legislature can address these issues by the end of this legislative session.

Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis 2019); he is a former state Supreme Court Judge.