As discussed in our recent blog, the New York legislature was considering revisions to the state’s discovery laws. Many of these reforms have passed, and effective January 1, 2020, the laws on bail and discovery will be drastically different.
Below is a summary of some of the reforms that will soon go in effect. There are many other important changes, but here are the highlights.
There has already been a cultural shift in how bail is set in criminal cases. Yet now, most persons charged with misdemeanors and non-violent felonies will be released without monetary conditions. This is unless the person poses a risk of flight. Those charged with second-degree robbery or burglary will also be similarly released. However, persons charged with sex offenses and domestic violence offenses may still have to post bail.
In terms of when bail is set, a court will now set three forms. A person may post cash bail, an unsecured bond, or a secured or partially-secured bond. A court will also have to consider the individual’s financial situation in determining the bail amount. And a court may also use electronic monitoring in certain cases.
Additional bail reforms are being considered during the current legislative session, which ends in June. Many are pushing to end cash bail entirely, although there are many who oppose this reform.
Replacing Criminal Procedure Law Article 240, legislators have created Article 245. Now, discovery being provided to a criminal defendant is presumed, rather than the defendant making demands and waiting for trial to see the evidence.
The District Attorney (“DA”) must provide discovery within 15 calendar days of the defendant’s arraignment. However, this may be expanded an additional 30 days by motion of the DA. And a DA can seek modification of the time period in any case on a showing of “good cause.” Full discovery must be completed prior to a withdrawal of a plea offer by the DA.
Discovery must include the following:
- Statements of the defendant, co-defendant(s), and witnesses
- Grand jury transcripts
- Electronic recordings
- Expert opinion evidence and reports of tests/examinations
- Brady (exculpatory) evidence
- Property, photos, and drawings
- Contact information for witnesses
- DWI records
A certificate of compliance must be filed by the DA, showing that discovery has been provided to the defense. The defense also must provide reciprocal discovery within 30 days of arraignment and file a certificate as well.
Other Criminal Justice Measures Passed
The right to a speedy trial is guaranteed in our federal constitution and state law. Now, DAs must actually be ready for trial when they announce “ready.” Otherwise, the clock is ticking against them. Prior to stating readiness, the DA must file a certificate of compliance with the new discovery rules. And where the DA announces ready, the judge must make an on-the-record inquiry of actual readiness. Further, speedy trial motions may now be made orally rather than in writing.
Another reform is that a desk appearance ticket (“DAT”) must now be issued in most cases. This means when arrested, a person will be assigned a court date and released. As such, they won’t be detained and waiting in custody for an arraignment. This won’t apply to those arrested for higher-level felonies, sex offenses, bail jumping, or escape.
Finally, pre-trial services will also be provided so that persons will be reminded of their court date. These services will include notifications by text message, phone call, email, or regular mail. If a person fails to appear, the court will provide 48 hours notice to the person or his/her attorney before issuing a bench warrant.
- Dan M. Clark, “Lawmakers Reshape NY Criminal Justice System, With Varied Reactions From DAs, Defenders,” New York Law Journal (Apr. 1, 2019). Available at: https://www.law.com/newyorklawjournal/2019/04/01/lawmakers-reshape-ny-criminal-justice-system-with-varied-reactions-from-das-defenders/ (last accessed Apr. 4, 2019).
- New York State Governor, “Social Justice, Advancing Criminal Justice for All, Criminal Justice Reform,” Governor Cuomo Announces Highlights of FY 2020 Budget. Available at: https://www.governor.ny.gov/news/governor-cuomo-announces-highlights-fy-2020-budget (last accessed April 4, 2019).
- Beth Schwartzapfel, “‘Blindfold’ Off: New York Overhauls Pretrial Evidence Rules,” The Marshall Project (Apr. 1, 2019). Available at: https://www.themarshallproject.org/2019/04/01/blindfold-off-new-york-overhauls-pretrial-evidence-rules (last accessed Apr. 4, 2019).