More Changes to New York’s Discovery Laws

May 3, 2022

By Jill K. Sanders, Esq.

As we discussed in our blog last week, New York’s 2022-2023 budget included some criminal legal reforms. In addition to changes to bail, there have been some changes to laws on discovery (the evidence a prosecution has that can be used against a criminal defendant). On May 9, 2022, the new discovery laws go into effect.


Discovery Basics

In New York, the Criminal Procedure Law requires that the prosecution provide discovery to the defendant as soon as practicable. Otherwise, it must be provided no later than 20 days if the client is in jail, or 35 days if the client is out.

If the prosecution doesn’t abide by these timelines, the prosecution is not ready for trial. If they’re not ready for trial, the speedy trial clock continues to tick. When the prosecution is not ready for trial in a certain period of time, the whole case can be dismissed.

To prove they’re ready for trial, the prosecution must file a certificate of discovery compliance. This is also called a “COC” or “CODC.” Additionally, there are limited exceptions where the prosecution can announce ready for trial without having yet provided all evidence to the defense.


Changes to Rules on Discovery Compliance

In cases where prosecutors share additional evidence after stating ready, the prosecution must now explain why. Now, the supplemental COC must detail the basis for the delayed disclosure.

Additionally, anything possessed by law enforcement is considered to be in the custody and control of the prosecutor. For those items not in their custody and control, the prosecutor must make a good faith effort to obtain them.


Discovery Challenges & Sanctions

If there is a challenge to the COC, it must be raised as soon as possible. In these cases, a defense attorney must notify the prosecutor of an alleged missing piece of evidence. Where the defense attorney intends to claim the prosecution is not actually ready for trial, a motion must be made.

Where a party has been prejudiced by the failure to disclose evidence, discretionary sanctions can be applied. In some cases, a judge can sanction the prosecution for failing to provide evidence. If the sanction is a dismissal of a charge, the prosecutor can appeal that sanction.


Additional Changes

As part of the 2022-2023 budget, prosecutors were allocated $40 million for discovery compliance. Specifically, prosecutors have tagged these funds for new software and hiring of more prosecutors and support staff.

Regarding traffic tickets, prosecutors no longer have to provide discovery automatically. To receive such discovery, a defense attorney must file a motion. Additionally, a defense attorney must file a motion where a person is charged with municipal code violations. However, this rule does not apply if the defendant is charged with any crime or offense.



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