Annual Review of New Criminal Justice Legislation

Annual Review of New Criminal Justice Legislation

12.1.2019

By Barry Kamins

No legislative session in recent memory produced as many significant changes in the criminal justice system as the session that ended in June. For the first time in a half century, New York has approved a set of sweeping reforms to the State’s criminal justice system that will limit the setting of monetary bail, expand discovery in criminal cases, and enhance the right to a statutory speedy trial.¹ In addition, the Legislature enacted a number of other important changes to the Penal Law and Criminal Procedure Law. It is recommended that the reader review the new legislation for specific details as the following discussion will primarily highlight key provisions of the new laws. In some instances, as of this writing, legislation enacted by both houses has not yet been sent to the Governor for his signature.

The new bail bill drastically reduces the use of monetary bail and, according to a statement made by Governor Andrew Cuomo, under the new statute, approximately 90% of people who are arrested will be subject to mandatory release. Under the new law, unless a person is charged with a “qualifying offense” (see below) a court has no authority to set monetary bail, and must release the person on his or her own recognizance.²

If a defendant is not charged with a qualifying offense but, in the opinion of the judge, poses a flight risk, the court still cannot set monetary bail but can select the least restrictive non-monetary alternative conditions to ROR that will reasonably assure the defendant’s return to court.³ These conditions include supervision by a pretrial services agency, reasonable restrictions on association or travel or, as a last resort, electronic monitoring.

Electronic monitoring can only be imposed, however, if the defendant is charged with a felony, and certain specified misdemeanors and no other non-monetary condition will suffice to assure reasonably a defendant’s return to court.⁴ A court can impose this condition for a maximum of 60 days with the option of continuing only upon a de novo review before a court. Finally, a person released on electronic monitoring is deemed to be “in custody” for purposes of release for an untimely conversion to a misdemeanor information (CPL § 170.70), or an untimely felony hearing (CPL § 180.80).⁵

Monetary bail can still be set by a court when a defendant is charged with a “qualifying offense.” That term is defined as a “violent felony” under Penal Law § 70.02 (except for robbery in the second degree (aiding another) and burglary in the second degree (in a dwelling) although an attempt to commit these crimes would still appear to constitute a “qualifying offense”; any Class A (non-drug felony) except Penal Law § 220.77 (operating as a major trafficker); any felony sex offense (Penal Law § 70.80) or misdemeanor sex offense (Article 130); and about a dozen other specified crimes.⁶ When the qualifying offense is a felony, a court can also remand the defendant.

When bail is set for these offenses, a court must set three forms of bail, one of which must be either an unsecured or partially secured surety bond.⁷ In determining the appropriate amount of bail, the new law eliminates certain criteria that a court previously had to consider, and enumerates certain new criteria. For example, instead of a defendant’s reputation, employment, family ties, and length of residence in any community, a court must now take into account a defendant’s “activities and history.” Instead of a defendant’s “criminal history,” a court must now consider the defendant’s “criminal conviction record.” While a court can still consider the defendant’s record of flight to avoid prosecution, it can no longer consider a defendant’s record “in responding to court appearances when required to.” And a court must now consider a defendant’s individual financial circumstances including his ability to post bail without it being “a hardship.”⁸

New procedures have also been adopted for desk appearance tickets (DAT) to divert people from the formal arrest process (and the police precinct). In the past, the issuance of a DAT for certain offenses was discretionary. Under the new law, a police officer must issue a DAT when a defendant is charged with an E felony (with the exception of certain escape-related offenses and sex offenses), or a misdemeanor unless one of eight exceptions apply. For example, a police officer is not obligated to issue a DAT when the defendant has an outstanding bench warrant; has failed to appear in court in the last two years; cannot provide a verifiable method of identity, including a driver’s license, passport, or public benefit card; has been charged with a domestic violence crime, sex offense or a crime for which a court can revoke or suspend a driver’s license; or appears to need medical or mental health care.⁹

Although the issuance of a DAT is not permitted if the above exceptions exist, a police officer will later, under certain circumstances, have the discretion to issue a DAT. Thus, for example, if one of the exceptions mentioned above precludes the issuance of a DAT at the scene, a police officer must detain the defendant and take him to the stationhouse; while there, however, the officer may resolve the disqualifying factor by, for example, obtaining sufficient identification of the defendant. Although this procedure requires the initial warrantless arrest of the defendant, it does permit the issuance of a DAT at the stationhouse in lieu of bringing the defendant through the court system to appear at arraignment.

A DAT must now be returnable no later than 20 days from the date it is issued.¹⁰ If the return date is more than 72 hours after its issuance, a court must have “appearance reminders” sent to any defendant who gave his contact information to the police officer. The court can delegate a pretrial services agency to issue these reminders.¹¹ The problem, however, is that there is no legislative mandate that counties have such agencies in place and no funding is provided in the State budget to support their establishment. In addition, the court is given the responsibility of notifying a defendant of any future court appearance by “text message, telephone call, electronic or first-class mail”; the defendant has the option of selecting the method of notification.¹² Each year there are approximately four million appearances by defendants in criminal cases; the burden placed on the court to notify defendants may well be unmanageable.

The new discovery law is even more sweeping. The current discovery statute is one of the most regressive in the nation, and it has now been repealed – a new CPL Article 245 will supersede it. Initially, the obligation to disclose information is no longer timed to the date of trial – it is timed to the date of arraignment. Thus, the prosecutor’s “initial discovery obligations” must be performed within 15 calendar days of a defendant’s arraignment date. If the discoverable material is “exceptionally voluminous,” the prosecutor can take an additional 30 calendar day period to disclose. The prosecution must also disclose any statements made by the defendant no later than 48 hours before the defendant testifies in the Grand Jury.¹³

In general, the prosecutor has a duty to make a “diligent good faith effort to ascertain the existence” of discoverable material, and any discoverable material in the possession of law enforcement, is “deemed to be in possession” of the prosecution for disclosure purposes (a codification of case law).¹⁴ Although the Court of Appeals had previously held that New York courts lack inherent authority to compel pretrial discovery (People v. Colavito, 87 N.Y.2d 423), the new statute overrules that doctrine. Upon the defendant’s application that he or she cannot obtain certain discovery “without undue hardship,” a court may order the prosecution to disclose certain material.¹⁵

The initial discovery obligation consists of approximately 21 categories of information, including material that the prosecution had not previously been required to disclose automatically. This includes the Grand Jury testimony of the victim, and the defendant; police reports; the names of witnesses (other than confidential informants) and “adequate contact information,” although “physical addresses” do not have to be disclosed; search warrants and affidavits in support of the warrants; a record of the defendant’s convictions and prosecution witnesses; the existence of any pending criminal action against prosecution witnesses; and electronically stored information from computers, cell phones, social media accounts seized by or obtained on behalf of law enforcement.¹⁶

The prosecution is now required to disclose Rosario material as part of the “initial discovery obligation.”¹⁷ This new and earlier deadline for Rosario material dramatically changes the timeline for disclosure by timing it to the arraignment instead of the date of trial. The failure of the prosecutor, however, to disclose the information shall not constitute grounds to set aside or reverse a conviction unless the defendant can establish that there is “reasonable possibility that the non-disclosure materially contributed to the result of the trial.”¹⁸

The prosecution also has a “supplemental discovery obligation” to disclose, no later than 15 calendar days before trial, the defendant’s prior bad acts that will be offered under either Molineux or Sandoval.¹⁹

The prosecution has two other new disclosure deadlines. When a defendant is charged with a felony, and the prosecution makes a pre-indictment plea offer to a crime (not a violation), the prosecutor must disclose all discoverable items not less than three calendar days prior to the expiration date of any plea offer or any deadline imposed by the court for acceptance of the plea offer. This shorter period is designed to accommodate CPL § 180.80 deadlines. If a prosecutor does not comply with this requirement, the defendant can file a motion alleging a violation of this requirement. If the court finds that the violation “materially affected” the defendant’s decision not to plead guilty, the court can order the prosecution to reinstate the lapsed or withdrawn plea offer. If the prosecution refuses, the court must preclude the admission at trial of any evidence disclosed.²⁰ A guilty plea offer may not be conditioned on a defendant’s waiver of these rights.

After a defendant has been indicted, and a plea offer has been made to a crime (not a violation), the prosecution must disclose all discoverable information not less than seven calendar days prior to the expiration date of any plea offer or any deadline by the court for acceptance of the guilty plea offer. A violation of this requirement can result in the sanctions for discovery violations relating to pre-indictment guilty pleas.²¹

After the filing of an accusatory instrument under the new statute, a prosecutor can now make a motion for a defendant to provide certain non-testimonial evidence, e.g., requiring the defendant to appear in a lineup, be fingerprinted, provide samples of blood, hair, etc. This section comports with In re Abe A.²²

After the People have complied with their discovery obligations, the prosecutor must file a certificate of compliance upon the defendant and the court. The certificate must contain a statement that the prosecutor has exercised due diligence, and made reasonable inquiries to “ascertain the existence of material and information subject to discovery”. The certificate must also identify the items that were disclosed to defense counsel. The court cannot sanction a prosecutor for filing a certificate in good faith when the certificate is inaccurate. The court, however, can impose certain sanctions, including the ordering of a mistrial; dismissal of charges; excluding evidence or giving an adverse inference instruction.²³ The People shall not be deemed ready for trial for purposes of CPL § 30.30, until a proper certificate of compliance has been filed.

Under a reciprocal discovery doctrine, the defendant is required to disclose certain information (previously required under the prior discovery statute) within 30 calendar days after service of the People’s certificate of compliance. In addition, the defense must now also disclose the name, address and birthdate of witnesses the defense intends to call, including any prior witness’ statements. The defendant is not required, however, to disclose the name and address of a witness being called solely to impeach a prosecution witness until after the People’s witness has testified at trial. When disclosure is complete, the defense must file a certificate of compliance upon the prosecution and court.²⁴

The new law also addresses the “flow of information” between the prosecutor handling a case and the police agency generating the arrest. Absent a court order, the police must make a complete copy of its file available for the prosecution. The arresting officer or assigned detective shall notify the prosecution in writing of the existence of all known 911 call recordings or video or audio recordings from a police body-worn camera; the prosecution shall then take steps to preserve these recordings. If a defendant makes a specific request regarding a recording, the prosecutor must take reasonable steps to ensure that it is preserved.²⁵

Over the years, prosecutors had opposed discovery reform because of concerns that witnesses, and victims, would not cooperate if their identities were disclosed at early stages of the proceedings; concerns were raised that witnesses would be intimidated or harmed to prevent them from cooperating. The new discovery law provides broad authority for a court to issue a protective order to address these concerns. Thus, prosecutors can request a protective order to deny the disclosure of any information provided under the new discovery law. A court must conduct a hearing within three business days to determine whether “good cause” has been established to issue the order.²⁶

In determining whether good cause has been shown, a court may consider, among other factors, the risk of physical harm or intimidation to any person; the danger to any witness stemming from factors such as an affiliation with a criminal enterprise; and whether the defendant has a history of witness intimidation. In the event a court rules adversely to the prosecutor, an appeal of the ruling must be sought within two business days of the ruling by filing an order to show cause at the Appellate Division. This type of interlocutory appeal is a rarity in criminal cases and the statute is silent on the procedures that will be followed at the appellate level – the return date for the motion, the timing of the decision, etc.

In order to address the concerns of the prosecution, a court also has the discretion to impose conditions upon the disclosure of information by the prosecution. For example, the court can order that material be disclosed only to counsel for the defendant (in which case the defendant must be so advised on the record). In addition, a court may order that counsel cannot disclose physical copies of documents to the defendant but that the defendant can inspect redacted copies of the documents at a prosecutor’s office.²⁷

Finally, there has been a change in the procedure for obtaining a subpoena duces tecum on government agencies. The new law dispenses with the requirement of a 24 hour notice on the agency as well as any requirement of service on the prosecutor. The agency will have three days to produce the documents, but a court can dispense with the three day period in cases of an emergency.²⁸ Upon a motion to quash, a defendant need only show that the item sought is “reasonably likely to be relevant and material to the proceedings.” Previously, defense counsel had to establish that the material was likely to be “relevant and exculpatory.” See People v. Kozlowski, 11 N.Y.3d 223 (2008).²⁹

The speedy trial statute has been amended significantly. Initially, when the People state that they are ready for trial under the new law, a court must make an inquiry on the record as to the prosecution’s actual readiness. If the court finds the statement to be illusory, the court can reject it. Any statement of readiness must be accompanied or preceded by a certificate of compliance with the discovery requirement, described above. Finally, in misdemeanor cases, a prosecutor can no longer state that he is ready on only some of the charges. In addition, a statement of readiness is only valid if the prosecutor certifies that all charges have been converted, or he dismisses those charges that have not been converted.³⁰

The speedy trial statute will now apply to Vehicle and Traffic Law infractions although the new law does not set a time period by which the People must be ready. Thus, this amendment will address cases in which certain VTL infractions have remained after charges of VTL §§ 1192 or 509 were dismissed.³¹

In the past, a dismissal motion pursuant to the speedy trial statute could not be appealed after a plea of guilty. Under the new law, the denial can now be appealed, unless there has been a valid waiver of appeal.³²

Finally, when a defendant seeks his release pursuant to CPL § 30.30(2), the motion can now be made orally without prior notice to the prosecutor.³³ Although the statute requires a court to “promptly conduct a hearing” when periods of readiness are in dispute, the statute is silent on certain procedural issues, e.g., whether the People’s response can be oral, and whether the People must be given, or are entitled, to an adjournment to respond to a motion for which they received no notice. In addition, oral motions will be difficult to track for purposes of establishing an orderly record for appeal. The lack of sworn allegations to support the motion will undermine the reliability of the record.

There is no question that the new legislation, described above, will make sweeping and dramatic changes to New York’s law on discovery, bail and the right to a speedy trial. At the same time, certain provisions do not provide sufficient procedural guidelines while others create burdens for the court that seem difficult if not impossible to manage. It is hoped that the Legislature can address these issues by the end of this legislative session.

Beyond the above legislation, the Legislature enacted numerous substantive and procedural changes to the Penal Law and Criminal Procedure Law.

As in the past, the Legislature enacted several new crimes. One new crime addresses what has been referred to as “revenge porn.” Individuals in intimate relationships frequently share sexually explicit photographs and, on occasion after the relationship is over, the recipient of the images disseminates the images on the Internet. A new crime, Unlawful Dissemination of Publication of an Intimate Image, a class A misdemeanor, criminalizes the publication of these images.³⁴ New York joins 45 other states in outlawing this behavior, but is the first state to allow victims to seek a court-ordered injunction to require websites to remove the offending image.

Under the new law, prosecutors must establish that the defendant intended to cause harm to the emotional, financial or physical welfare of another person and displayed the image without the other person’s consent. In addition, prosecutors will have to prove that the defendant knew or reasonably should have known that the victim wanted the image to remain private. The new law also gives the victim the right to sue the defendant for damages for up to three years after the image is shared, or one year after the victim discovers or should have discovered the dissemination of the image. A victim can choose to proceed under the criminal law, civilly, or in both forums.

Another new crime, Staging a Motor Vehicle Accident, addresses the practice engaged in by criminals who intentionally cause a vehicular collision and then file fraudulent insurance claims to fleece insurance companies and their policy holders.³⁵ The new crime is a class E felony and, if serious physical injury or death is caused to another person, it is elevated to a class D felony.

The Legislature enacted several new laws to increase protection for tenants who are being harassed by their landlords. First, a new law provides statewide protection that had previously been afforded to New York City tenants under the Administrative Code. Under a new class A misdemeanor, Unlawful Eviction, a landlord can be prosecuted for engaging in various acts designed to force or induce a tenant of more than 30 consecutive days to vacate the dwelling.³⁶

A second new law increases protection for rent regulated tenants. The drafters of the bill noted that, under the existing statute, Harassment of a Rent Regulated Tenant, no landlord has ever been convicted because prosecutors were faced with a difficult burden of proof. They needed to prove not only that the offending landlord intended to cause the tenant to vacate his or her home, but that the tenant sustained physical injury as a result of the landlord’s actions and that the landlord intended to cause the injury.

As a result, a new class A misdemeanor, Harassment of a Rent Regulated Tenant in the Second Degree was enacted.³⁷ The prosecutor must establish that the landlord engaged in various acts designed to evict the tenant but is not obligated to prove the infliction of physical injury. The former crime is now elevated to an E felony and, in addition to its current provisions, i.e., causing physical injury, it is expanded to include landlords who engage in a “systemic ongoing course of conduct” against two or more rent regulated tenants.

The Legislature has also decriminalized certain conduct. Gravity knives are no longer “per se” criminal weapons and the mere possession of a gravity knife is now lawful.³⁸ In approving the bill, Governor Cuomo noted that the state ban on gravity knives was held to be unconstitutional in the federal court (Cracco v. Vance, 376 F. Supp 304 (2019)). The court reasoned that the existing ban on gravity knives could result in arbitrary and discriminatory enforcement.

The Legislature has also decriminalized the possession of marijuana and reduced the penalties for possession of small amounts of marijuana.³⁹ The crime of Criminal Possession of Marijuana in the Fifth Degree (a class B misdemeanor) has been downgraded to Unlawful Possession of Marijuana in the First Degree (a violation). This would apply to amounts of one or two ounces of marijuana. It should be noted that the current class B misdemeanor crime for smoking marijuana in public has been eliminated. Similarly, Unlawful Possession of Marijuana (a violation) is now Unlawful Possession of Marijuana in the Second Degree (also a violation) but only carries a fine of up to $50.00. This would apply to amounts of less than an ounce of marijuana.

As part of the bill, individuals who had previously been convicted of the above marijuana crimes and other marijuana-related offenses under Article 220 of the Penal Law, can now move to vacate their convictions under Article 440 of the Criminal Procedure Law. In addition, the records of those cases can now be “expunged,” a term that has now been added to the Criminal Procedure Law. If a record has been “expunged,” the individual is not “required to divulge information pertaining to the arrest, prosecution and/or disposition of such a matter” (CPL § 1.20(45)). Over the next year, the Office of Court Administration will work with the Division of Criminal Justice Services to erase these records manually. The records will be expunged automatically although, it has been argued, a motion by defense counsel will help to speed the process.

Finally, the Legislature has removed “abortion” from sections of the Penal Law and Criminal Procedure Law to conform with state and federal cases upholding a woman’s right to safe, legal abortions.⁴⁰

The Legislature has also expanded the definition of certain crimes. For example, “gender identity or expression” has been added as a protected class under the crimes of Aggravated Harassment in the First and Second Degree and Hate Crimes. The term includes, but is not limited, to the status of being transgender.⁴¹ In addition, a person can now be charged with Unlawfully Dealing with a Child in the Second Degree if he or she sells cigarettes to a person less than 21 years of age; previously the limit was 18 years of age.⁴²

As in past sessions, the Legislature has enacted a number of significant procedural changes. One group of bills relates to changes in statutory deadlines. To address the societal issue of sexual abuse against minors, the Legislature enacted the Child Victims Act.⁴³ The new law expands opportunities for child victims of sexual abuse to bring civil claims. On the criminal side, the law changes the point at which the statute of limitations begins to run for crimes committed against minors.

Prior to the new law, class B felony sex offenses had no statute of limitations and for other sex crime felonies, a five-year statute of limitations began to run when the victim turned 18. For misdemeanors, there was a two-year statute of limitations that also began to run when the victim turned 18. The new law applies to all sex crimes (felonies and misdemeanors) which have a statute of limitations and the statute now begins to run when the victim reaches 23, instead of 18 years of age.

Another new law extends the statute of limitations for certain sexual offenses that fall below a B felony (there is no statute of limitations for a class B sexual felony). The bill would extend the statute of limitations to 20 years for rape in the second degree and criminal sexual assault in the second degree and to 10 years for rape in the third degree and criminal sexual act in the third degree. It would eliminate any statute of limitations for incest in the first degree.⁴⁴

A third bill addresses the time constraints on a trial judge when suspending jury deliberations. Under the prior law, a court could only suspend jury deliberations for a “reasonable period of time”, not to exceed 24 hours (excluding weekends and holidays). The new law allows the court to suspend jury deliberations and separate the jury until the close of business on the second day following such recess or, for “good cause” shown, until the close of business on the third day following the recess (excluding weekends and holidays). This will allow courts to deal with emergencies that arise from time to time. Requiring “good cause” for any suspension longer than two business days, ensures that lengthy suspensions of jury deliberations will not become a routine matter.⁴⁵

A new law allows women to postpone jury duty for up to two years if they present a note from a physician that they are breastfeeding.⁴⁶

In a major revision of civil forfeiture procedures, the Legislature has curtailed a prosecutor’s authority to seize a defendant’s assets. For example, the new law eliminates a prosecutor’s ability to obtain a pre-trial money judgment. Money judgments are still available but only after trial and only if a prosecutor secures a judgment against specific property proven to be tainted. In addition, untainted property may no longer be restrained before trial. A prosecutor can only restrain property prior to trial if he can satisfy a court that there is a substantial probability that he will be able to demonstrate at trial that the property is traceable to criminal activity. Finally, when a defense counsel seeks the release of restrained funds to pay his or her legal fees or the defendant’s living expenses, a prosecutor can no longer object on the grounds that the funds should not be released because they were illegally obtained.⁴⁷

Some new laws will be of great interest to defense counsel. The Legislature has eliminated an affirmative defense to murder; a defendant can no longer claim that he suffered from extreme emotional distress in committing murder when he discovered the victim’s sexual orientation, sex or gender.⁴⁸ This defense, known as the “gay panic” defense, was eliminated because it was recognized to be homophobic (see N.Y.L.J., Aug. 5, 2019). Another bill authorizes counsel, who are assigned by the court to perfect an appeal, to assist clients more effectively by also handling any post-conviction collateral attacks.⁴⁹ Assigned lawyers in New York, unlike their counterparts in at least eight other states, have not been statutorily entitled to be compensated to investigate and pursue collateral motions, including claims of ineffective assistance of counsel. The new law addresses that issue.

Finally, a new law will provide public defense counsel (public defenders, legal aid societies and assigned counsel administrators) with direct access to criminal history reports of their clients from the Division of Criminal Justice Services.⁵⁰ Previously, public defense providers had to rely on prosecutors and judges for access to these reports.

A number of new laws will impact on court programs. For example, under current law, a defendant in a substance abuse treatment program, supervised by a drug court, is eligible to receive a two year period of interim probation, between the date of a guilty plea and the date of sentencing. That two-year period is now also available to defendants in other types of treatment courts, e.g., mental health court or veterans court.⁵¹ Another bill allows any county outside of a city with a population of one million or more to transfer a case in a local criminal court to a “problem solving” court.⁵²

Finally, an accessible magistrate, sitting in an arraignment courtroom during off-hours, now has the authority to remove the case of a juvenile offender or adolescent offender to Family Court, with the consent of the prosecutor.⁵³

Other procedural changes were made in the last legislative session. A new law closes a loophole in the double jeopardy statute and ensures that state prosecutors will be able to prosecute an individual who has received a pardon, reprieve or other form of clemency from the President of the United States pursuant to Act II, § 2 of the Federal Constitution.⁵⁴

Another bill clarifies an issue related to the sealing statute; all cases that result in only a conviction for a petty offense will now be sealed, regardless of the original arrest charge. In the past, law enforcement agencies sealed files where the arrest charge was a misdemeanor or felony, and the defendant was later convicted only of a traffic infraction or violation. The agencies, however, would not routinely seal cases in which the accused was only arrested for a violation or traffic infraction. That distinction has now been eliminated.⁵⁵

The Legislature also clarified a conflict that had arisen in appellate decisions dealing with parking tickets. Some courts had held that, while a parking ticket is the functional equivalent of an appearance ticket, it is not an accusatory instrument and its filing does not confer jurisdiction over a defendant.⁵⁶ The Criminal Procedure Law has now been amended to define an appearance ticket issued for a parking infraction, as an “accusatory instrument.” ⁵⁷

Finally, a new law expands the ability of charitable bail organizations to offer assistance to an increased number of indigent defendants. The law raises the monetary amount that such organizations may provide, from $2,000 to $10,000; allows organizations to post bail in any county; and reduces the certification fee from $1,000 to $500.⁵⁸

During the last session the Legislature enacted an unusual number of bills to address issues relating to the unlawful possession and use of weapons. The most notable bill is the Red Flag bill, which has also been called the extreme risk protection order bill.⁵⁹ New York joins 17 other states which have approved laws of this nature and which authorize courts to issue special orders, allowing the police to temporarily confiscate firearms from people who are found by a judge to be a danger to themselves or others. It should be noted that, under the new law, New York became the first state to permit school officials to apply for court intervention under these circumstances.

Under the new law, a petitioner can first apply for a temporary order to prohibit an individual (respondent) from possessing a weapon upon a finding that there is probable cause to believe that the respondent is likely to cause harm to himself or others. A hearing must be scheduled within three to six days although more time can be requested by the respondent.

Upon serving the temporary order, law enforcement officials can take possession of all weapons that are in “plain sight” and may conduct a search for weapons consistent with the search warrant provisions of the Criminal Procedure Law.

Within three to six days after service of the temporary order, a hearing will be held to determine whether a final order should be issued. If no temporary order is issued, the hearing will be held within ten business days after service of the initial application. The respondent can request additional time to prepare for the hearing.

At the hearing, the petitioner has the burden, by clear and convincing evidence, to establish that the respondent is likely to engage in conduct that would result in serious harm to himself or others. A final order, which can last up to one year, can prohibit the respondent from purchasing or possessing any firearms and can require the respondent to surrender any other firearms in his possession. Upon service of the order, law enforcement officials can seize any firearms in “plain sight” and can conduct a search consistent with the search warrant provisions of the Criminal Procedure Law.

During the effective period of the final order, the respondent can request a hearing to set aside the provisions of the order, based upon a change of circumstances; the burden is upon the respondent to establish any change by clear and convincing evidence.

Other weapon-related laws were enacted as well. It is now a class A misdemeanor to possess an “undetectable knife” with the intent to use it unlawfully against another.⁶⁰ An undetectable knife is one which does not utilize components that are detectible by a metal detector. It is also a class A misdemeanor to possess a “rapid-fire modification device” that can accelerate the firing rate of a semi-automatic weapon, rifle or shotgun.⁶¹ It is now a class E felony to possess an “undetectable firearm, rifle or shotgun”; these weapons are not detectable by a magnetometer.⁶²

In response to the tragic deaths of children who had access to guns owned by their parents, New York joins three other states in imposing criminal liability on a gun owner for failure to store a gun safely when a child may gain access to it. The Legislature created two new offenses: Failure to Safely Store Rifles, Shotguns and Firearms in the First and Second Degree.⁶³ It is a class A misdemeanor to fail to lock a weapon securely in an appropriate storage depository, where the gun owner resides with an individual under the age of 16. An amendment to the bill would permit a person who is under 16 years of age to have access to the weapon if he or she has a hunting license and is supervised by a parent or guardian.⁶⁴

Other weapon-related laws will create an extension of up to 30 calendar days for a national background check;⁶⁵ require an investigation of the mental health records of another state where the applicant is domiciled there;⁶⁶ and permit law enforcement access to application information of firearm licenses.⁶⁷ Finally, schools are now prohibited from issuing written authorization to carry a firearm to anyone who is not primarily employed as a security guard, peace officer or police officer; this will ensure that teachers are not permitted to be armed while in school.⁶⁸

Several new laws will impact on sentencing. The most notable is the Domestic Violence Survivors Justice Act,⁶⁹ which will serve to reduce sentences of both male and female survivors of domestic violence who are punished for acts taken to protect themselves from an abuser’s violence.

The bill provides relief for two categories of defendants. First, a court can grant a reduced sentence if, after a hearing, the court determines that the defendant was a victim of domestic violence; the abuse was a significant contributing factor to the defendant’s criminal behavior; and a sentence of imprisonment would be unduly harsh. Defendants serving a sentence can also apply for resentencing pursuant to this statute. The reader should consult the statute for specific alternate sentences available to first time felony offenders, second felony offenders, and class A felony drug offenders.

Under another new law, the maximum sentence for a class A misdemeanor has been changed from one year to 364 days.⁷⁰ It has been argued that this change could prevent federal immigration authorities from pursuing deportation proceedings because the sentence is no longer a “sentence of one year.” The law permits an individual who has previously been sentenced to a definite sentence of one year to move to vacate the conviction; upon a vacatur of the conviction, the defendant can re-plead and be sentenced to a term of 364 days.

Other sentencing laws permit a judge to order shock incarceration for defendants convicted of burglary and robbery in the second degree⁷¹ and allow state prison inmates entering solitary confinement in special housing units to make a telephone call upon admission to the unit, and at least once a week thereafter.⁷²

Each year the Legislature enacts bill designed to protect crime victims. One new law authorizes a domestic violence victim to make a complaint to any local law enforcement agency in the state regardless of where the crime took place.⁷³ Other bills allow domestic partners of homicide victims to be eligible for compensation for out-of-pocket losses⁷⁴ and simplify the language in the notice given to domestic violence victims, which informs them of their legal rights and remedies.⁷⁵

Finally, when a defendant has been convicted of offering a false instrument for filing, in connection with a written instrument that transferred title to property, e.g., a deed, the prosecutor may now file a motion on behalf of the victim to void the instrument that was the subject of the defendant’s conviction.⁷⁶

In an effort to remove certain barriers to reentry by those who have been convicted of crimes, the Legislature has enacted certain measures. In the area of employment, the Legislature has removed certain restrictions for those with felony convictions to obtain licenses to become real estate brokers, check cashiers, insurance adjustors, etc. In addition, it is now unlawful for any person to act adversely to an individual whose criminal action resulted in an adjournment in contemplation of dismissal. The Legislature has also repealed the mandatory suspension of a driver’s license for certain speeding convictions and adjudications as a youthful and juvenile offender.⁷⁷

Finally, the Legislature has enacted new laws to address the regulation of electric bicycles, electric scooters and stretch limousines. It is now a class B misdemeanor to leave the Scene of an Accident Involving an Electric Scooter if the operator is aware that serious physical injury has been caused.⁷⁸ A person who operates a stretch limousine after the vehicle has failed an inspection, shall now be guilty of an A misdemeanor.⁷⁹

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