On January 1^st, new criminal justice reform laws went into effect in New York – bringing some major changes to the New York State criminal justice system, and provoking mixed reactions to these new laws (which are some of the most significant changes to the criminal justice system in decades). Two of the biggest changes now in effect are the elimination of cash bail for most misdemeanors and nonviolent crimes, and changes in discovery laws – where the new law now requires prosecutors to turn over discovery information to defendants within 15 days after an arraignment.

As conversations continue about the impact of New York’s new criminal justice reform laws, CGMB founding partner Marc Gann, a criminal defense attorney since 1990 and former Nassau County Assistant District Attorney, recently offered a closer look into discovery reform and the new discovery law in New York – providing an important overview of the changes now in effect throughout New York State that will impact anyone involved in the criminal justice system. Following is an article Marc Gann co-wrote in a recent Nassau Lawyer, the journal of the Nassau County Bar Association, which outlines the important changes to discovery reform in New York and what both attorneys and clients need to know as the amended law goes into effect.

We are continuing to monitor developments with, and the impact of, these new criminal justice reform laws and will provide any updates. If you have any questions about any of these new changes in criminal law, or would like further information about how these new criminal justice reform laws may impact you or someone you know, call us anytime at 516-294-0300, or email Marc Gann at mgann@cgmbesq.com.

NASSAU LAWYER

The Journal of the Nassau County Bar Association

Reprinted with permission by the Nassau County Bar Association

New York Reforms Discovery in Criminal Prosecutions By Marc C. Gann and Nicole Johnson

Albany recently passed several criminal procedure reforms which will result in significant changes as to how discovery is handled in the State of New York. Criminal Procedure Law Article 245, which repeals Article 240, will be effective January 1, 2020.¹ The differences from the now-existing laws are notable and will lead to lawyers having to quickly adapt to the new rules. Discovery has been greatly expanded for both the prosecution and defense.

Timing of Discovery

Under the new CPL § 245.10 (1)(a), the prosecution must perform its discovery duties as soon as reasonably practicable, but no more than fifteen days after arraignment. However, if discovery is particularly voluminous, then discovery may be stayed up to an additional thirty days without motion to the court.² In such cases, full discovery is required within forty-five days of first appearance.³ This provision impacts the Speedy Trial rule under CPL § 30.30 because it precludes the District Attorney (“DA”) from stating the prosecution’s readiness unless a “certificate of compliance,” which affirms that discovery obligations are complete, is filed.⁴

Additionally, CPL § 245.10 invalidates the partial-conversion doctrine, a tool used by prosecutors to stop the “speedy trial clock” on certain charges when multiple counts are contained in one criminal complaint, and prevents the DA from stating its readiness on some misdemeanor counts without certifying that all other counts have been either converted or dismissed. DA’s can no longer stop the clock by simply stating “ready.” Not only is a certificate of compliance required, but the judge must make an inquiry as to the actual readiness of the DA when a ready statement is made.⁵

Certain types of evidence—such as grand jury minutes, expert witness information, and electronically stored information—warrant automatic timing extensions due to the difficulty in producing them, according to the timeline set forth in CPL § 245.10. Grand jury minutes are automatically provided an extra thirty days for discovery if the minutes are not available timely due to limited court resources.⁶

Additionally, special rules were created for circumstances such as when defendants make statements to law enforcement. All statements made to law enforcement must be presented to the defense no less than forty-eight hours prior to the time that the defendant is set to testify before the grand jury.⁷ Prior to the enactment of CPL § 245, statements made to law enforcement were only discoverable if made by the defendant or co-defendant, and many prosecutors took the position that disclosure of statements was not required until an arraignment on felony charges.

The new rule broadens the scope of discovery by no longer limiting discoverable statements to only those made by jointly tried defendants.⁸

The defense has thirty days upon receipt of full discovery and a certificate of completion from the prosecution to provide its discovery to the DA, with the exceptions of the same automatic extensions provided to the prosecution.⁹

What’s Included

The DA’s discovery requirements now include the names and adequate contact information for all persons, not just testifying witnesses, whom the DA believes to have information relevant to any charged offense or possible defense.¹⁰ Additionally, all written or recorded statements that the DA believes to contain relevant information or a potential defense must be turned over.¹¹

Also to be disclosed by the DA are: expert opinion evidence;¹² all electronic recordings (including 911 calls);¹³ all photos and drawings which the prosecution intends to introduce at trial;¹⁴ all reports of scientific tests;¹⁵ all favorable evidence and information known to the DA¹⁶ (required within fifteen days of first appearance); a list of all potentially suppressible tangible objects recovered from the defendant;¹⁷ search warrants;¹⁸ all tangible property including exhibits that the DA intends to introduce at trial;¹⁹ a complete record of judgments and convictions for all intended DA witnesses;²⁰ and a copy of all electronically stored information belonging to the defendant that was seized by law enforcement.²¹

Clearly, the new law drastically modifies the discovery requirements and schedule in criminal cases. Much of the information referred to herein was not required to be provided until immediately prior to a hearing or trial. The change results in a heightened burden on the prosecutor to collect and disclose all of this information within a very short period of time.

Automatic Discovery

Perhaps the most notable change in discovery laws falls under CPL § 245.20, which makes discovery automatic and eliminates all procedures that require the defense to file a motion or request discovery. The presumption is now in favor of disclosure.²²

All required discovery pursuant to CPL § 245.20 (1) (a)-(u) must be sent by the prosecution to the defense within the specified time frames set forth in CPL § 245.10. If at any time during the course of litigation the prosecution or defense learns of any material that is considered discoverable pursuant to any of the provisions of Article 245, it must be turned over immediately.²³

Plea Agreements

Full discovery is also required before plea offers made by the DA can be withdrawn.²⁴ This will allow defendants to make informed decisions before accepting plea deals.

In addition, all discovery must be turned over no less than three days prior to the plea deadline for felony complaints and seven days for misdemeanors, and cannot be waived by the defendant.²⁵ The DA cannot condition a plea offer on a waiver of discovery rights.²⁶ If the DA fails to disclose evidence that would have “materially affected” the defendant’s decision to accept or deny a plea offer, the court may preclude the omitted evidence at trial.²⁷

Additionally, the court may take other appropriate sanctions as necessary to rectify the violation.²⁸ However, a defendant can waive discovery from the prosecution if done so in a context not related to a plea offer and if done prior to receiving any discovery from the prosecution.²⁹

Discovery from Defense

With the exception of certain types of evidence such as expert witness information and exhibits,³⁰ the defense must provide discovery within thirty days of receiving the DA’s certificate of compliance. Obligations of the defense now require that the names of all witnesses and statements made be disclosed within the thirty-day time period. However, if the defense intends to call a witness, it does not have to disclose the names of those witnesses until after the DA’s witness has testified.

What defense counsel is actually required to turn over is limited to only eight types of evidence:

(1) the names and addresses of witnesses the defense intends to call at trial or at a hearing; (2) recorded and written statements taken by the defense for witnesses it intends to call at trial or at a hearing; (3) expert opinion evidence (including credentials and written reports); (4) recordings;

(5) photos/drawings; (6) tangible property; (7) scientific testing reports; and (8) a summary of promises made to intended defense witnesses .³¹

Upon completion of discovery, the defense must also file a certificate of compliance attesting to due diligence.³² Although the defense is limited as to the types of discovery it is required to turn over, the defense has the ability to move for a court order to request from the DA any relevant items not covered by the statute. The defense may also move for a court order that grants access to a relevant location in order to inspect and photograph the area.³³

Obligations of Law Enforcement

The new discovery law also requires law enforcement agencies to make adjustments to their typical practices. Going forward, every law enforcement agency in New York will have to supply a complete copy of its records and files on a case to the DA upon request.³⁴

Additionally, arresting officers must notify the DA about all 911 calls, police video and audio footage, and body camera recordings made or received in connection to a criminal investigation.³⁵

Sanctions

Pursuant to CPL § 245.80, when material is discoverable but sent late, the court will impose sanctions if it can be shown that the delay in discovery prejudiced the entitled party.³⁶ If discoverable material is lost or destroyed, then sanctions may be imposed if the material was relevant to a contested issue.³⁷ The court can impose sanctions such as striking a witness’s testimony, excluding otherwise admissible evidence at trial, ordering a mistrial, or even dismissing all charges.³⁸ Failure to conform to the new discovery rules are likely to result in any number of the above sanctions.

This new legislation manifestly changes the way in which criminal cases will be prosecuted and defended. Burdens on prosecutors to comply with the timing and scope of discovery will impact the resolution of criminal cases by providing for informed decisions by defendants before their cases can be adjudicated.

Marc C. Gann is the founding partner of Collins Gann McCloskey & Barry PLLC, past president of the NCBA, a former prosecutor, and has been a criminal defense lawyer since 1990.