In the midst of a historic pandemic, the legislature enacted changes in two critical areas of the criminal justice system. It enacted changes to the bail and discovery laws it passed last year and, in addition, it passed an expansive package of police reform bills. At the same time, the New York City Council enacted a series of new laws that will have a significant impact on members of the New York City Police Department.
Bail and Discovery
In 2019, the legislature enacted sweeping changes in the areas of bail and discovery. After those changes became effective on January 1 of this year, advocates and prosecutors waged a fierce battle over amending last year’s legislation and both sides came away with some measure of achievement. The amendment to the bail statute was effective July 2 while the amendment to the discovery legislation became effective on May 3.
With respect to bail, the legislature neither eliminated cash bail altogether nor added a provision authorizing judges to assess a defendant’s “dangerousness.” It did, however, expand the number of “qualifying offenses” for which monetary bail may be set and the number of non-monetary conditions of release that judges can impose.
The legislature did not add any additional violent felony crimes to the list of qualifying offenses, although it designated strangulation in the second degree – already bail-eligible as a violent felony under the original legislation – explicitly bail-eligible if committed as a domestic violence crime.
In the original legislation, burglary in the second degree, a violent felony, was classified as a non-qualifying offense when a defendant was charged under subsection (2), i.e., entering a “dwelling” with the intent to commit a crime. The amendment makes clear that the crime becomes a qualifying offense when an individual enters the “living area of the dwelling.” The term “living area” is not defined in the Penal Law and entering the “living area” is not an element of the crime. As a result, prosecutors will need to inform the court at arraignments as to any facts that support a request for bail.
It would appear that in multiple-unit buildings, bail cannot be set when a defendant enters a non-living area such as a vestibule, roof, or lobby. In a one-family house, a porch or basement may constitute a “non-living area.” In People v. McCray, the Court of Appeals held that a burglary committed in the non-residential part of a building used partly for residential purposes should not be treated as the burglary of a dwelling.
The legislature also added approximately 20 non-violent felonies to the list of qualifying offenses. A number of prosecutors and law enforcement officials had publicly expressed criticism that many of these felonies were not included in the original legislation as bail-eligible. Under the amendment, for example, the following non-violent felonies are bail-eligible: all A-1 drug felonies; certain financial crimes (grand larceny in the first degree and certain money laundering charges); all subsections of sex trafficking that were not bail-eligible under the original legislation; and certain hate crimes (assault in the third degree and arson in the third degree if committed as a hate crime).
In addition, bail can now be set for “any crime that is alleged to have caused the death of another person.” This would include all offenses under Article 125 of the Penal Law, a number of which are non-violent offenses, e.g., criminally negligent homicide, manslaughter, etc.
The amendment also permits judges to set bail on certain repeat offenders. For example, bail can now be set for an individual who is charged with a felony offense while serving a sentence of probation or while released to post-release supervision. In addition, any felony becomes bail-eligible when the defendant “qualifies for sentencing on such charge as a persistent felony offender.”
In addition, bail can now be set when an individual is charged with two sequential crimes (either a felony or Class A misdemeanor) “involving harm to an identifiable person or property.” Before a judge can set bail, however, the prosecutor must establish probable cause to believe that the defendant committed both the instant and underlying crimes.
Courts will need to define “harm” as the statute does not provide any guidance. It remains to be seen whether courts will limit the definition to physical harm or whether they will apply a more expansive interpretation and include financial or emotional harm.
Certain misdemeanors have been added to the list of qualifying offenses and, not surprisingly, relate to a defendant’s failure to appear in court, e.g., escape from custody and bail jumping. While these misdemeanors and others specified in the amendment are bail-eligible, none are subject to remand. Defendants charged with qualifying offenses that are felonies, however, are subject to bail or remand.
Finally, although an offense may not be bail-eligible, once a defendant pleads guilty to that offense or is found guilty of that offense after trial, a court can now set bail or remand the defendant between the conviction and sentencing date.
The legislature also expanded the number of non-monetary conditions a judge can impose when releasing a defendant. The amendment makes clear that this is not an exclusive list and that a defendant shall not be required to pay for any part of the cost of any non-monetary condition, e.g., electronic monitoring.
The new conditions are broad in scope. For example, as a condition of release, a defendant may have to agree not to associate with individuals “connected [to] the instant charge including victims, witnesses or co-defendants.”. A court can also now require a defendant to attend mandatory treatment programs as determined by a pretrial services agency, e.g., counseling, drug treatment and violence intervention programs.
In addition, a court may, where applicable, direct a defendant to be removed to a hospital pursuant to Mental Hygiene Law § 9.43 which provides for at least a 72-hour period of emergency hospitalization for immediate observation, care, and treatment. Although this is listed as a new condition of release, some courts had been imposing this condition prior to the legislation. As another condition of release, a defendant can be required to make “diligent” efforts to maintain employment, enrollment in school or educational programming. Finally, a court can require, as a condition of release, that the defendant obey an order of protection issued by the court.
In the original legislation, electronic monitoring was authorized, under certain circumstances, as a condition of release. The amendment clarifies this condition in two respects. First, a defendant cannot be required to pay for the monitoring. Second, counties and municipalities may contract with private companies to supply the monitoring devices, but only employees of the municipalities or state, and not the contractors, can have any interaction with a defendant for the purpose of monitoring.
The legislature also responded to certain concerns generated by the initial legislation. For example, the original legislation provided that a desk appearance ticket must be returnable no later than 20 days from the date it is issued. The amendment provides that the 20-day period may be extended to the “next scheduled session” of the court if such session is not within 20 days of the issuance date.
In addition, in the original legislation courts were given the responsibility of notifying a defendant of any future court appearance by text message, telephone call, first class mail, or electronically , and the defendant had the option of selecting the method of notification. Under the amendment, a defendant forfeits such notice if he or she intentionally declines to provide the information necessary for him or her to receive it. In addition, a failure by the court to provide notice of a scheduled court appearance shall not constitute grounds or authorization for a defendant to fail to appear in court.
Finally, the legislature expanded the availability for release, pending sentence or appeal, for defendants who are not convicted of a qualifying offense. Courts continue to have the authority to set bail pending sentence or appeal (with certain existing exceptions) when a defendant is convicted of a qualifying offense. When a defendant is convicted of a non-qualifying offense, a court now has the authority to set bail, or in the alternative, release the defendant on his own recognizance or set non-monetary conditions for release.
The legislature also amended the discovery statute effective May 3 of this year. One amendment eases the timeline that was imposed on prosecutors in the original legislation; under that provision, a prosecutor had 15 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 30 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 30-day period by making a motion pursuant to CPL § 245.70(2).
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.
The prosecutor must notify the defense that information is being withheld under this section and the defense can then move for disclosure of this information. 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. Although the prosecution can withhold the identity of a 911 caller, if he or she intends to call such person as a witness at a 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(1)(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.
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.
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 or she 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.
The amendment makes clear that any challenges to a certificate of compliance must be “addressed by a motion.”. 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.
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.
The legislature also enacted an expansive package of police reform bills. The centerpiece was the repeal of Civil Rights Law § 50-a (CRL § 50-a), which had shielded from public disclosure certain police records containing disciplinary actions and misconduct complaints. The statute was enacted in 1976 to prevent what were then perceived as efforts by defense counsel to utilize information contained in police personnel records to cross-examine and impeach officers during trial in an overly aggressive and unfair manner.
Prior to the repeal of CRL § 50-a, New York and Delaware were the only states that had provided statutory protection to police officer personnel records. With the repeal, New York has joined 12 other states in promoting transparency of police disciplinary procedures.
Under the new law, section 50-a of the Civil Rights Law is repealed and, as a result, police personnel files are now to be treated in the same manner as other police records for the purpose of discovery. The new law did, however, amend the Public Officers Law to require certain limited information to be redacted when personnel files are disclosed.
Thus, before providing records, a law enforcement agency must redact certain personal information, including medical history, home address, personal phone numbers, email addresses, social security numbers, and the like. In addition, the agency can redact records pertaining to a “technical infraction.” A technical infraction is defined as one that does not involve interaction with members of the public; is not of public concern; and is not otherwise connected to a police officer’s investigative, enforcement or training responsibilities. Technical infractions might include uniform violations or untidy stationhouse lockers.
An argument can be made that, after the repeal of CRL § 50-a, prosecutors must automatically turn over disciplinary records from police personnel files as part of their new discovery obligations under Article 245 of the Criminal Procedure Law. This arises from their responsibility to disclose all information that “tends to . . . impeach the credibility of a testifying prosecution witness.”
In the event that a prosecutor fails to turn over this material, or does so in an untimely manner, defense counsel still have the option of making a freedom of information (FOIL) request. In several cities in New York State, including New York City, plans have been announced to create a public online database of police disciplinary records that will alleviate the delay in processing a FOIL request.
A second major legislative reform was the criminalization of chokeholds when conducted by law enforcement. The new law, entitled the “Eric Garner Anti-Chokehold Act,” was named for the Staten Island resident who died in 2014 after a police officer used a chokehold on him during an arrest for selling untaxed cigarettes.
Under the new law, Aggravated Strangulation (a Class C violent felony) is committed when a police officer or peace officer either (1) commits the crime of criminal obstruction of breathing or blood circulation; or (2) uses a chokehold that applies pressure to the throat or windpipe of a person in a manner that may hinder breathing or reduce intake of air; and (3) thereby causes serious physical injury or death to another person.
Although the New York City Police Department banned the use of chokeholds in 1993, the Civilian Complaint Review Board reported that chokeholds continued to be used by police officers with alarming frequency. Thus, the legislature determined that the administrative ban on the use of chokeholds was not sufficient to prevent its use and enacted the new law imposing criminal sanctions. Ten days after the enactment of the law, a New York City police officer was arrested and charged with aggravated strangulation.
To complicate matters, on July 15, 2020, Mayor de Blasio signed into law an amendment to the New York City Administrative Code which also criminalized the use of chokeholds. Under Administrative Code § 10-181, “no person shall restrain an individual in a manner that restricts the flow of air or blood by compressing the windpipe or the carotid arteries on each side of the neck, or sitting, kneeling or standing on the chest or back in a manner that compresses the diaphragm, in the course of effecting or attempting to effect an arrest.”
Under this section, a person who engages in this conduct shall be guilty of a Class A misdemeanor, punishable by imprisonment of not more than one year, a fine of not more than $2,500 or both. The section does not provide for any other type of sentence, e.g., probation, conditional discharge or unconditional discharge.
While the new state and local laws penalize the same generic conduct, they are different in a number of respects. The local law is more restrictive in that it includes contact with a person’s chest or back, in addition to contact with the neck and throat, the only areas that are covered by the state law. The local law is a strict liability statute, eliminating the need to establish any intent to cause injury to the victim. Finally, under the state law, the conduct is a violent felony, punishable by up to 15 years in prison; the local law provides punishment of up to one year in jail.
Although both statutes address, in general, the same generic conduct, the local law would not appear to be prohibited under the doctrine of preemption. That doctrine prohibits a municipality from exercising police power when the legislature has expressly, or by implication, restricted such an exercise by preempting the area of regulation. Absent an express intention by the legislature, preemption may also be inferred from a declaration of state policy by the legislature or from the fact that the legislature has enacted a comprehensive and detailed regulatory scheme in a particular area, e.g., sex offender registration.
Furthermore, the state has not signaled an intention to regulate the use of chokeholds throughout the state, given the state legislature’s recognition that local municipalities do play a role in regulating police conduct. Finally, the fact that a local law imposes a lesser penalty than a state statute does not render it inconsistent with the state law; the two laws can co-exist, with the state law supplementing the local law by providing for more severe penalties for the same offense. Thus, the prosecutor would have the discretion to choose which statute to use in charging a police officer.
The state legislative package of police reforms includes a number of other measures that respond to incidents that have been reported in the press. For example, one measure, the “New Yorker’s Right to Monitor Act,” establishes the right of a citizen to record law enforcement activity and to maintain custody and control of that recording. The measure creates a private cause of action, i.e., the unlawful interference with recording law enforcement activities, which must be commenced within three years of the date of the incident. The interference may be committed in a number of ways. An officer can interfere by preventing a person from recording law enforcement activity; threatening that person for recording a law enforcement activity; commanding that the person cease recording law enforcement activity; seizing, ticketing or arresting that person because that person recorded a law enforcement activity; or unlawfully seizing property used by that person to record a law enforcement activity.
Under the new cause of action, an individual can seek damages, including punitive damages. The statute creates an affirmative defense for a police officer who, at the time such conduct was committed, had probable cause to arrest the person for obstructing governmental administration while the person was recording the law enforcement activity.
Another measure establishes civil penalties for using a 911 call to summon a police officer without any reason to believe that a crime or imminent threat to safety is occurring. This law is intended to prevent the blatant misuse of 911 calls for non-emergency situations, which taxes the valuable resources of law enforcement agencies.
Police officers are now required to verbally report incidents involving the discharge of their weapons within six hours of the occurrence. In addition, they must file a written report within 48 hours of the incident. This measure was enacted in response to an incident in New York County in which an off-duty police officer fired his weapon at a car after arguing with a young man who had cut him off on FDR Drive, resulting in the death of one of the occupants. Until the officer reported the incident the next day, the police spent considerable resources trying to determine the identity of the shooter. This new measure would prevent such occurrences.
Other legislative reforms include the creation of a cause of action against a police officer who fails to obtain medical and mental health treatment for a person who is under arrest and within the custody of the officer. A person who does not receive such treatment and, as a result, suffers serious physical injury or significant exacerbation of an injury can seek damages from the officer and/or the police department.
Beginning April 1, 2021, New York State police troopers will be required to use body-worn cameras while on patrol. They must keep video records of all interactions that troopers have with individuals including arrests, searches of persons and property, investigative actions, and all use of force and interactions with people suspected of criminal activity.
Finally, a new law creates an office of special investigation within the Office of the State Attorney General. The office will have authority to investigate, and prosecute, any incident in which the death of a person is caused by an act or omission of a police officer or certain peace officers. The measure is designed to promote public confidence by removing what some believe is a potential conflict when district attorneys investigate deaths caused by police officers. Some have argued that, based on the close working relationship between prosecutors and the police, there is an appearance that prosecutors cannot remain impartial.
On July 15, 2020, Mayor de Blasio signed a series of police reform bills that will affect the New York City Police Department. In addition to the new chokehold law mentioned above, the New York City Council enacted a new law establishing the right of a person to record police activities. Similar to the statewide law, this provision creates a cause of action for unlawful interference with recording police activities. Under Administrative Code § 14-189, this right is separate and distinct from other remedies provided by the state. The action must be commenced within one year and 90 days after a violation of this section.
Included among the other measures is a new law that requires the reporting and evaluation of surveillance technologies used by the New York City Police Department. The department would be required to issue information about surveillance technologies; the public will then have a period of time to submit comments.
Despite the crippling effects of the current pandemic, it is evident from the above discussion that the legislature was able to enact a number of bills that will have a significant impact on the criminal justice system as we move forward into 2021.
Barry Kamins is a partner in the law firm of Aidala, Bertuna & Kamins where his practice focuses primarily on appellate matters and professional discipline. Prior to joining the firm, he was the Administrative Judge of the New York City Criminal Court and Chief of Policy and Planning for the New York court system. Judge Kamins is an adjunct professor at Brooklyn Law School where he teaches New York criminal practice. He is the author of New York Search and Seizure and writes the Criminal Law and Practice column for the New York Law Journal.
. 2020 N.Y. Laws ch. 56.
. CPL § 510.10.
. 23 N.Y.3d 621 (2014).
. CPL § 510.10(j) (emphasis added).
. Cf. leaving the scene of an incident without reporting, which results in death, would not be a bail-eligible offense (VTL § 600(2)(c)).
. CPL § 510.10(r).
. CPL § 510.10(4)(s).
. CPL § 510.40(4)(f).
. CPL § 530.45 (2-a).
. CPL § 500.10(3-a).
. CPL § 500.10(3-a)(e).
. CPL § 500.1 (3-a).
. CPL §§ 500.10(3-a), 510.40(4)(c).
. CPL § 150.40.
. CPL § 510.43.
. CPL §§ 530.45, 530.50.
. CPL § 245.20.
. CPL § 245.10.
. CPL § 245.70(1).
. CPL § 245.75.
. CPL § 245.70(3).
. CPL § 245.50(3).
. CPL § 245.50.
. CPL § 245.50(4).
. CPL § 245.50.
. Cf. People v. Gisendanner, 48 N.Y.2d 543 (1979).
. 2020 N.Y. Laws ch. 96, eff. June 16, 2020.
. CPL § 245.20(1)(k)(iv).
. 2020 N.Y. Laws ch. 94, eff. June 12, 2020.
. People v. Diack, 24 N.Y.3d 674 (2015).
. See, e.g., People v. Lewis, 295 N.Y 202 (1945); Cf. People v. Eboli, 34 N.Y.2d 281 (1974).
. 2020 N.Y. Laws ch. 100, eff. July 14, 2020.
. 2020 N.Y. Laws ch. 93, eff. June 12, 2020.
. 2020 N.Y. Laws ch. 70, eff. September 13, 2020.
. 2020 N.Y. Laws ch. 103, eff. June 15, 2020.
. 2020 N.Y. Laws ch. 105, eff. April 1, 2021.
. 2020 N.Y. Laws ch. 95, eff. April 1, 2021.
. No. 721-B, eff. August 14, 2021.