2020 heralds significant and welcome changes in state criminal practice in New York. On April 1, 2019, New York State legislators passed sweeping criminal justice reform legislation altering the landscape for defendants accused of a crime in New York. Of the reforms which went into effect in the new year, the most significant for the white-collar practitioner are changes to the discovery requirements compelling the government to share information with an accused well in advance of trial. Lessening restrictions imposed on suspects waiting for trial, also will have an impact on defendants charged with non-violent white-collar crimes.

Discovery Reform

New York’s former law on evidence sharing, colloquially known as the “blindfold law” because those accused of a crime largely were kept in the dark about the evidence against them, has been replaced with a new statute set forth in Article 245 of the Criminal Procedure Law. The new law creates a “presumption of openness” and requires a significant increase in manpower and resources for state district attorney offices. In New York City alone, Mayor Bill de Blasio added $75 million dollars to the City’s budget to support compliance with the criminal justice reforms.

As a first step, the law institutes “automatic” discovery requirements on prosecutors, eliminating the need for defense attorneys to formally demand access to evidence. Rather, the prosecution must allow the defendant to “discover, inspect, copy, photograph, and test” all materials relating to the subject matter of the case. Further, the law establishes clear timeframes for the production of discoverable materials, where the prior law contained no such deadlines for some materials and more lenient deadlines for others.

Prosecutors are required to make a good faith effort to determine if the discoverable materials exist and, if they do, obtain them if they are not already in the prosecutor’s possession. Material in the possession of law enforcement is deemed to be in the possession of the prosecutor. Further, prosecutors must produce the materials to the defendant as soon as practicable, but no later than 15 days after arraignment. An additional 30 days may be permitted where the materials are voluminous or the government is not reasonably able to obtain the materials.

Article 245 enumerates 21 different kinds of materials that prosecutors are compelled to give to the defense, including name and contact information for any person with information relevant to the case, all statements by such persons, electronic recordings and electronically created or stored information, Brady materials favorable to the defense, search warrants and related materials, and details regarding rewards, promises, or inducements offered to any prosecution witnesses.

The new law also sets unique timelines in connection with the pre-indictment and pretrial stages of a criminal case. First, where a defendant wishes to exercise the right to testify before a grand jury, the prosecution must provide the defense with any statements made to law enforcement by the defendant or a co-defendants 48 hours prior to the defendant’s scheduled appearance before the grand jury.

Second, if the government makes a plea offer before indictment, prosecutors must turn over discoverable materials at least three calendar days prior to the expiration of the offer. When an offer is made after indictment, discoverable materials must be produced seven calendar days prior to the expiration of the plea offer. These obligations are separate from the 15-day deadline for all discoverable materials and reduce the pressure defendants may face in determining whether to accept a plea offer without full knowledge of the evidence against them. Significantly, where the government fails to comply with these timelines, the court must preclude the use of the non-disclosed evidence at trial if the defendant asserts a violation of the discovery law, the court finds that the prosecution’s failure had an impact on the defendant’s decision to refuse the plea, and the prosecution refuses to reinstate the plea offer.

After complying with its discovery obligations, the government must now issue a “certificate of compliance.” In response, the defense must provide discoverable materials in its possession to the government within 30 days. Where the government fails to comply with its discovery obligation, the court can issue a range of remedies or sanction including a continuance, precluding or striking testimony, excluding evidence, ordering a mistrial, or dismissing all or some of the charges. The court has broad discretion to fashion a remedy that is just under the circumstances.

Concerns Expressed by Prosecutors

New York State prosecutors have warned that compliance with the new discovery obligations without additional resources from the State will be difficult. The president of the District Attorneys Association of New York, Orange County DA David Hoovler complained that many district attorney offices feel that no one in the state government is listening to calls for additional funding. He stated, “The ultimate success of these laws depends on prosecutors being able to comply with them. We are asking for help.” In October 2019, a representative from the New York Attorney General’s Office echoed these concerns, testifying before state lawmakers that her office would need more than $10 million in new funding to comply with the laws. New York County District Attorney Cyrus R. Vance, Jr. observed that an increase not only in personnel but also technology resources would be required to create an efficient e-discovery platform to make materials promptly available to the defense. One article on the legislation described a new content management system called the Digital Evidence Management System (DEMS) that allows for the easy transfer of digital information and evidence between prosecutors, law enforcement, and, eventually, defense counsel. The program has been piloted in some districts throughout the state and should assist government attorneys in complying with their discovery obligations

Cy Vance also has noted the obligation to balance the laws’ more open disclosure requirements with witness safety and the need for witness cooperation. He states, “Having to hand defendants a roster of who has spoken out against them just 15 days after their first appearance, absent a protective order, is a seismic change that undoubtedly will dissuade witnesses who live in all neighborhoods from reporting crime.” This concern has been articulated by district attorneys from all five boroughs of New York City, who argue that in protecting defendants, the law went too far.

Bail Changes Benefit the Non-Violent and the Poor

Reforms to the bail law were prompted in large part by well-founded concerns that the law resulted in inequities in the criminal justice system that punished poor defendants, especially those of color. Rather than serve the recognized purpose of bail – to incentivize court attendance by exposing defendants to the potential loss of money if they fail to appear – the bail amounts set by courts had become so high that the practice had the effect of detaining thousands of defendants pretrial. In 2018, for example, only 15% of criminal defendants in New York City were able to post the set bail at arraignment. Although the primary purpose of the bail reform sought to address this inequity, the impact of the law on non-violent felonies also will provide benefits to many white-collar defendants.

Following the lead of other jurisdictions like New Jersey, California, and Washington, D.C., New York’s new law drastically curtails the use of cash bail. As of January 1, judges are required to consider the least restrictive conditions necessary to ensure a defendant returns for trial. These decisions must be made on the record or in writing. First, judges are encouraged to release defendants on their own recognizance pending trial unless they pose “a risk of flight.” These decisions cannot be based on “perceived future dangerousness or risk to public safety.”

Money bail and pretrial detention have been eliminated in misdemeanor and nonviolent felony cases – which means that almost all white-collar defendants will avoid pretrial incarceration and the need to post significant bail bonds. The law contains nine cases in which money bail and pretrial remand remain permissible in felony cases: violent felony offenses, nonviolent felony witness intimidation, nonviolent witness tampering, Class A felonies (not including Class A drug felonies), sex offenses, conspiracy to commit murder, terrorism related offenses, felony criminal contempt with an underlying allegation of domestic violence, and select offenses against children.

Where bail is appropriate, the new law contains requirements intended to ensure that defendants can pay bail when it is set. Judges are required to provide less onerous bail options, including partially secured or unsecured bonds. In addition, judges must consider each defendant’s: 1) individual financial circumstances; 2) ability to post bail without posing undue hardship; and 3) ability to obtain a secured, unsecured, or partially secured bond. The new law also describes several non-monetary release conditions. These conditions include supervised release, additional court date reminders, travel restrictions, and limitations on firearms or weapons possession.

Money bail, pretrial detention, and electronic monitoring remain options available to the court where a defendant fails to comply with pretrial conditions. In cases where a defendant was charged with a felony and the court “finds reasonable cause to believe the defendant committed” a new Class A felony, violent felony, or witness intimidation, the court may revoke the prior release order and either set money bail or detain the defendant. The new statute further contemplates that in certain other cases – such as persistent and willful failure to appear, the violation of an order of protection, or allegations of felony witness intimidation or tampering during the pretrial period – the court may set money bail, even if it was not previously allowed at arraignment. The court, however, is not permitted to remand the defendant. In each case, the court must hold a hearing and permit the defendant an opportunity to present evidence and cross-examine witnesses.

The new law also significantly alters pre-arraignment detention in New York, allowing for the issuance of a Desk Appearance Ticket in all misdemeanor and Class E felony cases which results in the immediate release of the defendant with an order to return to court on a preset arraignment date within 20 days of the arrest.

Analysis by the Center for Court Innovation suggests that the bail reform changes will reduce the pretrial jail population drastically. Taking a snapshot of the 4,996 defendants held pretrial in New York City on April 1, 2019, the day the law was passed, statistics reveal that 2,138 or 43% of those defendants would be released if the law already was in effect. These numbers likely will be higher in jurisdictions outside of New York City.

Conclusion

The criminal justice reforms bring positive and long-overdue changes that reflect the unfairness of the prior state criminal process. Debate will continue about the efficacy of the changes while district attorney offices and courts adapt to the new expectations; defense lawyers should press for compliance to ensure that the intended changes become a reality.