November 12, 2019 - Mayor's Column
New legislation passed by the most recent state legislature will make sweeping and dramatic changes to New York’s law on discovery, bail and the right to a speedy trial. The substance of these laws will directly impact our residents and the “costs” associated.
Prior to the passage of the new legislation, which takes effect on January 1, New York had a reputation as one of the most restrictive states in these areas as the last law revision was made in 1979. Though most agree some revision was needed, many, including associations of police officers and districts attorneys, believe the pendulum has swung much too far, particularly in the area of discovery law changes. Discovery is the process through which prosecutors turn over evidence so someone accused of a crime can mount a capable defense. In an unprecedented short timeframe, the new law mandates the prosecution to reveal all its evidence within 15 days of arraignment. Currently, discovery is required before a trial starts which only happens in approximately 3% of all cases. A positive result of this procedural change is that defendants will now be equipped with the information assembled against them before deciding whether to take a plea bargain. However most law enforcement agencies agree that they cannot possibly comply with this tight timeframe without greatly expanded personnel and technological support. As example, all of the State’s crime labs are backed up beyond two weeks.
The DA of small Oswego County estimates it will cost his office 1/2 million dollars to comply and Bronx DA Gonzalez estimates his office will need $15 million more in funding to comply. Our police chief is currently reviewing needs on the local level as is the Westchester County DA’s office. Statewide, one hundred million dollars of additional funding is needed to execute the new regulations. The governor announced just last week that there will be no additional state funds to alleviate local costs. This is quite possibly one of the most significant unfunded mandates passed into law -another case of reforms without resources.
Though the financial costs are staggering and will appear as increases in your village and county tax bills, most law-enforcement officers are rightly concerned about the human ramifications. According to the Brooklyn DA, one of the primary reasons why witnesses are hesitant to cooperate with investigations is confidentiality .He said the first question always asked is, “Will that defendant know who I am and where I live?” Prosecutors will now no longer be able to assure witnesses that their identity will be protected even in cases of grand jury testimony, which the new law now requires to be disclosed.
While there is a provision to ask a judge for a protective order to shield a name, that request can only come after police and prosecutors have already talked to witnesses in order to make an arrest and build a case. Manhattan DA Cyrus Vance put it this way, “having to hand defendants a roster of who has spoken out against them just 15 days after their first appearance is a seismic change that will undoubtedly dissuade witnesses who live in all neighborhoods from reporting crimes. “
To add to the equation, the new law increases the likelihood of defendants being granted access to the locations - stores, bank vaults, and bedrooms -where they are accused of committing crimes. In a section entitled, “Order to Access the Premises”, the law stipulates that the defendant may apply, “for access to an area or place relevant to the case in order to inspect, photograph or measures same.” Queens DA John Ryan asks, “How do we tell a burglary complainant that the defendant may have the right to come into their home with an investigator to take pictures?” Beyond taking pictures, the new law seems to permit the defendant to also inspect the premises to undertake his or her own investigation of the crime scene, resulting in a scenario that a suspected rapist or a home invader could be permitted to poke around the same room where he or she committed the crime.
The recent penal revisions also end cash bail for all misdemeanors and non-violent felony charges thus significantly reducing the number of pre-trial prisoners in the state jail system. Those in favor of the change believe it corrects a system that was disproportionately harmful to low income defendants and incarceration due to poverty is counterintuitive to keeping an individual out in his community to work and be gainfully employed.
The other side of the coin is that a judge will have no discretion as to their belief the defendant is a flight risk or harmful to society given their past history to which the judge is privy. Instead of a bail requirement, individuals who have been charged with such crimes as second-degree manslaughter, aggravated vehicular homicide, criminally negligent homicide and criminal possession of a weapon on school grounds will now be issued an appearance ticket. Should someone choose not to appear, the cost of extradition from another state varies from $3500-$5000, causing many municipalities to cancel the recapture purely on monetary grounds.
Other potentially dangerous scenarios resulting from the “no bail “provision include the release of a habitual drunk driver now automatically free to go out and perhaps drive drunk again or a domestic violence perpetrator released even though it is well documented that the phase between an offender’s arrest and sentencing is the most dangerous for a victim of abuse.
The speedy trial provision has been changed with a goal of more oversight and accountability of the prosecution. Per law, the speedy trial clock, which determines the defendant’s timely rights, can be stopped if the prosecutor states that they are ready for trial but the defense is not. Going forward the standards for “trail ready “by the prosecution will require greater oversight and verification.
I will continue to keep you apprised of the ramifications of the new laws in the areas of community safety, personnel and technological needs and financial costs that will be required to execute these changes.