Working with the New Bail Statutes by Leah R. Nowotarski
In the midst of an historic pandemic, the Legislature enacted changes to sweeping legislation it had passed last year: limitations on monetary bail; expansion of discovery in criminal cases and the enhancement of the right to a statutory speedy trial. Last year’s landmark amendments to the criminal procedure law became effective on January 1st of this year and advocates and prosecutors waged a fierce battle over modifying the 2019 legislation. Both sides came away with some measure of achievement. The amendment to the bail statute is effective July 2nd while the amendment to the discovery legislation became effective on May 3rd (L. 2020, Ch. 56).
This article will discuss the changes made to the discovery law. One amendment eases the timeline that was imposed on prosecutors in the original legislation; under that provision, a prosecutor had fifteen calendar days from the defendant’s arraignment date to provide discovery (with some exceptions). Under the amendment, if a defendant is in custody, the prosecution has 20 calendar days to perform its initial discovery obligations. If a defendant is not in custody, the deadline is 35 calendar days. If a defendant is initially in custody but released before the 20-day deadline, does the prosecutor then get 35 days to provide discovery? The statute is silent on that point.
The original legislation gave prosecutors an additional, automatic thirty days, without the need for a motion, to provide discovery when the discoverable materials are “exceptionally voluminous”. The amendment attempts to clarify the definition of “exceptionally voluminous” by giving examples of material that may fit that definition: video footage from body worn cameras, surveillance cameras or dashboard cameras. In addition, it also permits prosecutors to extend the thirty-day period by making a motion pursuant to CPL 245.70).
The amendment expands the right of the prosecution to withhold certain pieces of information as part of its initial discovery obligation, without having to obtain a protective order. Thus, in addition to withholding the identity of a confidential informant, a prosecutor can now withhold the identity of a 911 caller, a victim or witness in sex offenses and sex trafficking cases and a victim or witness of a crime where the defendant has a substantial affiliation with a “criminal enterprise” as that term is defined under the Enterprise Corruption Act (CPL 245.20).
The prosecutor must notify the defense that information is being withhold under this section and the defense can then move for disclosure of this information (CPL 245.10). In ruling on the motion, a court can also order that a transcript of the 911 recording be disclosed in lieu of the recording itself (CPL 245.70). Although the prosecution can withhold the identify of a 911 caller, if he intends to call such person as a witness at hearing or trial, the prosecution must disclose the name and contact information no later than 15 days before a hearing or trial. In addition, although the prosecutor can now withhold the identity of a 911 caller, the defense would still be entitled to any statements of potential witnesses under CPL 240.20[e]). Thus, an argument can be made that the statement of a 911 caller must still be turned over provided the statement is redacted to prevent the disclosure of the caller’s identity.
The original legislation addressed the possibility that a defendant may wish to waive discovery; the amendment seeks to clarify that issue. Prior to accepting a waiver, which must be signed by counsel, a court must now inquire of the defendant, on the record, to ensure that the defendant understands his or her right to discovery. On the other hand, a court cannot require, as a condition of a plea, that counsel advise his or her client about the right to waive discovery. Finally, when a conviction is vacated on agreement between the parties pursuant to CPL 440.10, a waiver of discovery can be a condition of a new guilty plea (CPL 245.75).
The procedure for a protective order has been changed. Under the original legislation, unless a defendant consents to the prosecution’s request for a protective order, a court must conduct a hearing within three business days to determine whether good cause has been shown. Under the amendment, a prosecutor can now request that certain hearings be conducted in camera and outside the presence of the defendant (CPL 245.70).
Thus, when a defendant is charged with a violent felony or any class A felony (other than a class A drug felony), a court can conduct a hearing as outlined above if the prosecutor establishes “good cause”. The statute is silent on a number of points. Can defense counsel be present at the hearing? In determining “good cause”, what factors must a court consider?
As the initial legislation made clear, the prosecution’s burden to comply with discovery and to file a certificate of compliance, is driven by the sanctions under the speedy trial statute. Thus, certain amendments to the discovery statute will have an impact on the prosecution’s speedy trial obligations.
For example, the trial readiness standard has been lessened to some extent. Under the original legislation, a prosecutor can be deemed ready for trial even if he has not filed a certificate of compliance if a court finds that “exceptional circumstances” exist. Under the amendment, a court need only find “special circumstances” although the difference between “exceptional” and “special” seems ambiguous. (CPL 245.50).
The amendment makes clear that any challenges to a certificate of compliance must be “addressed by a motion” (CPL 245.50). The statute is silent on whether the motion must be in writing. If the motion is made orally, it would seem wise, for appellate purposes, to incorporate the grounds for the oral motion in any written motion made pursuant to CPL 30.30 (CPL 245.50).
In addition, a prosecutor will now be able to file a certificate of compliance when discoverable material is lost or destroyed provided that (1) there are diligent and good faith efforts to locate the material; and (2) the efforts to locate the material are reasonable under the circumstances (CPL 245.50).
The Honorable Barry Kamins is a retired Supreme Court Judge. Before his retirement he was Administrative Judge of the Criminal Court of New York City, Administrative Judge for Criminal Matters for the Second Judicial District and Chief of Policy and Planning for the New York Court System. Judge Kamins is a prolific author on criminal law and procedure matters, including his work on Search and Seizure, and lectures extensively on criminal law for the Office of Court Administration and to prosecutors and defense attorneys.
Leah R. Nowotarski is an Assistant Public Defender in Wyoming County, Secretary of the Criminal Justice Section, Delegate, House Of Delegates,Co-Chair, Correctional System,Co-Chair, Town And Village Justice Court,Section Caucus Delegate