Barry Kamins

This is the second part of a review of new criminal justice legislation (For the prior article, see “New Criminal Justice Legislation: Part One,” NYLJ Oct. 6, 2017). In some instances, where indicated, legislation enacted by both houses is awaiting the Governor’s signature and of course, the reader must check to determine whether a bill is ultimately signed or vetoed by the Governor.

Each year, the legislature has amended the definition of certain crimes and increased penalties of others, and this year was no exception. For the second year in a row, the legislature has amended the definition of a gravity knife—last year’s bill was vetoed by Gov. Andrew Cuomo. Over the past 14 years, over 65,000 New Yorkers have been arrested for possession of a gravity knife, making this one of the most prosecuted crimes.

A gravity knife is “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” (PL §260.00(5)). The knife was originally designed for use by paratroopers in World War II who needed to cut themselves free from a parachute that had become tangled in a tree or other obstruction. The knife could be opened by using one hand; the user pointed the knife downward and the blade became free from the force of gravity and the flick of the wrist.

The law has been criticized as being too broad in that it has been enforced against large groups of individuals who use these knives every day as part of their trade. Law enforcement officials, however, caution that these knives present a threat to safety and that there are many alternative instruments that can be used by trades people including the widely used utility knife with a half-inch blade and the standard folding knife.

The Governor vetoed last year’s bill because, in his opinion, the bill would have potentially legalized all folding knives and placed a burden on law enforcement to determine the design attributes of each knife. This year’s amendment is designed to overcome the Governor’s concerns, and to clarify the legislature’s intent not to ban all pocket knives but to ban only switchblade knifes and gravity knives, two very specific weapons with specific characteristic mechanisms (S. 4769, awaiting the Governor’s signature).

The legislature has responded to an increase of bomb threats against Jewish community centers, by adding “community center” to the definition of “public place”. As a result, a person who makes a bomb threat against a community center, can now be convicted of the felonies of Placing a False Bomb and Falsely Reporting an Incident. (L. 2017, Ch. 167, eff. Nov. 12, 2017). In addition, the legislature closed a loophole that had existed in enforcing the crime of Obstructing a Firefighting Operation. The law has been expanded to protect a firefighter who is performing emergency medical care on a sick or injured person. (L. 2017, Ch. 124, eff. Nov. 1, 2017).

In another amendment, the legislature has eliminated the inconsistent regulation of “sparkling devices” throughout New York state. A new law authorizes the sale of “sparkling devices” outside of cities with a population of one million or more, exempting them from the definition of “fireworks” and “dangerous fireworks.” (S. 724, awaiting the Governor’s signature.) Finally, illegal deer poaching is now a misdemeanor, punishable by up to a year in jail. (S. 387, awaiting the Governor’s signature.)

As part of the budget bill, New York state will reimburse all counties for improvements in indigent defense services. This builds upon a 2014 settlement in which the state agreed to settle a class action lawsuit (Hurrell-Harring v. New York, 15 N.Y.3d 8 (2010)) that accused the state of failing to provide adequate representation to indigent defendants in five counties (Suffolk, Washington, Ontario, Onondaga and Schuyler). The settlement committed the state to pay for improved services to indigent defense systems in those counties, but did not address New York’s other 57 counties.

Under the new legislation, the Office of Indigent Legal Services must provide a statewide plan to provide for the following: ensuring that defendants are represented by counsel at arraignment; reducing caseloads for public defenders; and improving the resources available to attorneys representing indigent defendants. In addition, the state will provide up to $250 million over six years to pay for the implementation of these reforms. (L. 2017, Ch. 59).

A number of procedural changes were enacted in the last legislative session. In 2016, the legislature enacted a bill establishing requirements for law enforcement agencies with respect to sexual offense evidence kits. This year the legislature has enacted several amendments that clarify last year’s bill.

First, it was clarified that the requirements apply to police and prosecutorial offices. Second, agencies are required to develop a DNA profile when the biological evidence obtained is eligible for comparison to the federal CODIS database. The agencies are also required to take an inventory of the kits and submit the inventory to the New York State Division of Criminal Justice Services. The agencies will also have less time to submit these kits for analysis; the time has been shortened from 180 days to 30 days. The failure of the agencies to comply with the time frames for submission and testing, however, will not be grounds for suppression of evidence under Criminal Procedure Law §710.20. Finally, the effective date of most of these changes was extended to one year after it becomes law. (S. 980, awaiting the Governor’s signature).

Under current law, a pre-sentence investigation report may be waived by the parties when a sentence of felony probation is to be imposed. A new law now also permits a waiver of the report when a conditional discharge is to be imposed. (L. 2017, Ch. 194, eff. Aug. 21, 2017). Another new law would require police officers investigating a vehicular accident to request that all operators of the motor vehicles involved in the accident submit to a field sobriety test where a person was seriously injured or killed as a result of the accident. The request must be made if the police officer has reasonable grounds to believe that the operator committed a “serious traffic violation,” defined as operating a vehicle in violation of enumerated sections of the Vehicle and Traffic Law. These violations include driving with a suspended license, leaving the scene of an accident, speeding, and reckless driving. A motorist who refuses to take the test would be subject to a suspension of his or her license. (S. 5562, awaiting the Governor’s signature.)

Another procedural change is designed to facilitate the appeal from a court that is not designated a court of record. These courts do not utilize stenographers to make records of the proceedings. As a result, an appeal is heard on a record pieced together by means of (1) “an affidavit of errors” prepared by the appellant and (2) a summary of the facts made by the judge. A decade ago the Office of Court Administration installed electronic recording devices in these courts. Nonetheless, the Court of Appeals recently held that a transcript derived from an electronic recording of the proceedings is not an acceptable substitute for the filing of an affidavit of errors. (People v. Smith, 27 N.Y.3d 643 (2016)). In order to provide an appellant sufficient time to obtain the transcript of the electronic recording, an amendment extends the time to file a Notice of Appeal from 30 to 60 days (L. 2017, Ch. 195, eff. Oct. 20, 2017).

Finally, the legislature has concluded that the felony of animal fighting is a heinous crime that remains largely undetectable. As a result, it has added this crime to the list of designated crimes eligible for an application for an eavesdropping or video surveillance warrant. (A. 2806, awaiting the Governor’s signature.)

Several new laws will affect sex offenders. First, a “transportation network company,” e.g. Uber, Lyft, etc., cannot employ an individual who is a registered sex offender. (L. 2017, Ch. 60, eff. July 1, 2017). Second, the Division of Criminal Justice Services must notify the appropriate law enforcement agency within two business days (rather than 48 hours) if a registered sex offender changes residence or enrolls in an institution of higher learning. (L. 2017, Ch 17, eff. Jan. 27, 2017).

Victims of crimes will benefit from several new laws. Initially, the court system will make available translation services to all Family and Supreme Courts to assist in the translation of Orders of Protection where the person protected by the Order has limited English proficiency or has a limited ability to read English. (L. 2017, Ch. 55, eff. July 19, 2017). In addition, victims of domestic violence can now make an application in County and Family Court, in addition to Supreme Court for an order separating their voter registration records and any other records from records available to the public. (S. 6749, awaiting the Governor’s signature.)

Under a new law, prosecutors must provide the Board of Parole with a copy of the written notice it provides crime victims regarding the disposition of a criminal case and the victim’s right to be heard by the Board. This will enable the Board to contact crime victims about the status of a parolee’s hearing. (L. 2017, Ch. 193, eff. Aug. 21, 2017). Finally, crime victims will now be compensated for transportation costs associated with any appearance in a criminal case from an arraignment through post-trial hearings. (S. 338, awaiting the Governor’s signature.) In addition, reimbursement for crime scene cleanup expenses will now be paid to additional members of a victim’s family. (L. 2017, Ch. 117, eff. Jan. 21, 2018).

Several new laws will impact prisoners. Recognizing that inmates are routinely transferred from one facility to another for a variety of reasons, the legislature has enacted a new law that permits an inmate to call his or her family within 24 hours of arriving at a new facility. (L. 2017, Ch. 254, eff. Sept. 21, 2017). The Parole Board will now be required to post its administrative appeal decisions online within 60 days of its determination. (S. 3982, awaiting the Governor’s signature.) Finally, last year a new law authorized the use of a qualified interpreter to be used at parole hearings where an inmate does not speak English as a second language. This year, an amendment requires the interpreter to be appointed by the New York State Office of General Services (L. 2017, Ch. 9, eff. March 8, 2017).

A number of laws, scheduled to sunset this year, have been extended. For example, Kendra’s Law was extended until June 20, 2022; it established a statutory framework for court-ordered assisted out-patient treatment of individuals with mental illness. (L. 2017, Ch. 67). A number of laws had their expiration dates extended from Sept. 1, 2017 to Sept. 1, 2019: numerous sentencing laws as well as laws relating to inmate work release programs, electronic court appearances in designated counties, and the use of closed-circuit television for certain child witnesses (L. 2017, Ch. 55; L. 2017, Ch. 59). Finally, certain sections of the Arts and Cultural Law, relating to the resale of tickets to places of entertainment, have been extended until June 20, 2018. (L. 2017, Ch. 68).

The New York City Council has enacted a number of local laws designed to facilitate the posting of bail and the release of inmates. First, in any case where less than $10,000 bail is set, the New York City Department of Corrections may delay the transportation of the defendant to a correctional facility for four to 12 hours to permit the inmate to have bail posted, if the delay is requested by a pretrial services agency. (Local Law 1541, eff. Sept. 20, 2017).

Second, the Department of Corrections will begin accepting cash bail payments online, beginning on April 1, 2018 and once cash bail is posted an inmate must be released within five hours (beginning on Oct. 1, 2017); 4 hours (beginning on April 1, 2018); and 3 hours (beginning on Oct. 1, 2018) (Local Law 1531, eff. Oct. 1, 2017).

Finally, where a defendant is held on bail, the Department of Corrections shall ensure that a “bail facilitator” meets with an inmate within 48 hours of admission to a facility. The facilitator must explain to the inmate how to post bail or bond, the fees that may be collected by bail bond companies and must assist the inmate with any reasonable measures related to the posting of bail. (Local Law 1561, eff. Jan. 18, 2018).

Barry Kamins, a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis 2017) is a former New York Supreme Court Judge.