Buffalo News: Things to know about changes to New York State laws on discovery and bail

Things to know about changes to New York State laws on discovery and bail

Nov 21, 2019

 

Supporters of the sweeping changes to state criminal justice laws regarding discovery rules and the bail system describe the moves as reforms aimed at helping to curb mass incarceration and reducing the strategic advantage held by prosecutors.

As part of this year’s state budget, lawmakers and Gov. Andrew M. Cuomo approved the changes that are slated to go into effect Jan. 1.

Today, law enforcement officials across the state are calling for a delay in implementation.

The Center for Court Innovation, an independent research and development arm of the state Unified Court System, issued reports earlier this year about the changes to the bail system and discovery rules. Here are some of the key changes, based on the center’s analyses.

What is the biggest change to the bail system?

With some exceptions, judges will not be permitted to set monetary bail for those charged with most misdemeanors and nonviolent felonies.

Some examples of common misdemeanor charges where bail will no longer be allowed are second-degree reckless endangerment, third-degree assault, fourth-degree criminal mischief and petit larceny.

 

What are the exceptions?

There are two misdemeanor charges where a judge may set monetary bail: sex offenses and misdemeanor criminal contempt when there is an underlying allegation of domestic violence.

In terms of felony charges, there are nine criteria judges will use to determine whether monetary bail or remand are possible. Nearly all violent felony charges would permit bail or remand and nearly all nonviolent felonies would not allow judges to impose bail or remand on defendants.
Violent felonies where bail is prohibited include cases where a charge of second-degree burglary is levied under one specific subsection of the law. Bail is also prohibited for charges levied under a subsection of second-degree robbery, but most cases with that charge do not involve the exempted subsection.
Other nonviolent felony charges where bail may be set include witness intimidation and witness tampering, sex offenses, conspiracy to commit murder, terrorism-related offenses, criminal contempt with an underlying allegation of domestic violence and three offenses against children.
Only one Class A drug felony remains eligible for bail or pretrial detention: operating as a major drug trafficker. Other Class A drug felonies do not permit monetary bail or remand.

Can a defendant still be held overnight after an arrest?

There will still be a few exceptions where law enforcement can hold someone overnight in jail on a misdemeanor or nonviolent felony, explained Rebecca Town, a public defender. They include cases in which a defendant's identity can't be confirmed or if there's an order of protection against the person. In those situations, the defendant can be held overnight in jail but at arraignment, if the person isn't charged with a violent felony or other charge that qualifies for bail, they would have to be released without bail, Town said.

How does the new law aim to ensure defendants can pay bail when it is set?

There are technically nine types of bail judges in New York State can set, according to the Katal Center for Health, Equity and Justice. But judges typically use only a few types.

Judges will be required to set at least three types of bail, an increase from at least two. One of the types must be what are considered the least onerous forms – a partially secured bond or an unsecured bond. A partially secured bond allows a defendant or their family/friends to pay 10% or less of the total bail up front, with the balance only paid if the defendant fails to return to court. An unsecured bond requires no up-front payment, but otherwise works in the same fashion.

Judges must also consider each defendant's "individual financial circumstances," "ability to post bail without posing undue hardship" and "ability to obtain a secured, unsecured or partially secured bond."

 

What else must a judge consider?

The law requires judges to release defendants on their own recognizance unless they are determined to pose "a risk of flight." When making a decision on whether to release a defendant, judges may not consider potential future danger posed by the defendant or risk to public safety.

Judges may also use information from formal "release assessment" tools used to help predict a person's likelihood of returning to court.

What other conditions may judges impose that don't involve monetary bail?

If a judge finds a risk of flight, he or she may set nonmonetary conditions, including supervised release, additional court date reminders, travel restrictions and limitations on gun or weapons possession. The law says jurisdictions must create more types of nonmonetary conditions than supervised release alone.

Electronic monitoring may be imposed for 60 days, with the ability to be renewed, in the following circumstances: where there are felony charges, in misdemeanor domestic violence cases, misdemeanor sex charges or misdemeanors where a defendant has been convicted of a felony within the last five years.

 

What's the "accelerated" timeline that's part of changes to discovery rules?

Prosecutors will have to turn over all "discoverable" materials no later than 15 days after a defendant's arraignment or indictment. Under current state law, prosecutors are not required to share such material until the morning of jury selection, Erie County District Attorney John J. Flynn said. The District Attorney's Office stopped that practice when he took office, Flynn said. "Discoverable" items include everything from police reports to body-worn camera footage.

Prosecutors will get an additional 30 days if the records are considered voluminous or the materials are not yet in prosecutors' possession despite making earnest efforts to obtain them.

"In effect, the prosecutor has 45 days to turn over initial discovery, with a few exceptions for specific kinds of discovery," according to the Center for Court Innovation report.

 

What will change regarding the timing of plea offers?

If prosecutors offer a plea deal before grand jury proceedings for felony charges, they must turn over materials to the defense at least three days before the offer expires. In other stages of the case, discovery materials must be turned over seven days prior to the offer's expiration.

 

What are some of the other changes to discovery rules?

  • Defense attorneys will no longer be required to file papers in court in order to obtain and review evidence.
  • The new law spells out 21 types of materials that are "discoverable," including names and adequate contact information for any person who has relevant information regarding a case; names and work affiliations of all police and law enforcement personnel with evidence or relevant information on the case; the statements of anyone with relevant information, regardless of whether the person will be called to testify at trial, as well as witnesses in pretrial hearings; electronic recordings, including 911 calls; materials considered to be favorable to the defense; search warrants and related materials and electronically created or stored information if obtained from the defendant or a source besides the defendant if the material is related to the subject matter of the case.
  • Parties may ask a judge to issue a protective order that allows some information to be withheld. Some typical valid reasons for withholding information may relate to the safety of witnesses or preserving a defendant's constitutional rights.

 

Read the full article online at this link.