Annual Review of New Criminal Justice Legislation

This column reviews new legislation amending the Penal Law, Criminal Procedure Law and related statutes. The discussion that follows will highlight key provisions of the new laws, which the reader should review for specific details. Where indicated, legislation enacted by both the Assembly and Senate is awaiting the governor’s signature; the reader should check to determine whether the governor has signed or vetoed a bill.

In the past legislative session, the most substantive piece of legislation related to discovery reform and it addressed what prosecutors claim were several unintended consequences of the 2020 legislation, which was transformative in nature. While courts will now have more discretion in determining whether a prosecutor has complied with the discovery statute, the recent amendments did not change the fundamental premise of the discovery statute that prosecutors cannot be ready for trial without having complied with their discovery obligations.[1]

The first modification of the discovery statute narrows the scope of material that must be disclosed by prosecutors. Under the 2020 legislation, there was a list of 21 categories of information that had to be disclosed; the introductory paragraph provided that as to each category, prosecutors were required to disclose all information that “related to the subject matter of the case.” The introductory paragraph has been deleted and the scope of disclosure for each of the 21 categories is now determined by the language found in each section.

Prosecutors had argued that courts had interpreted the “related” standard in the opening paragraph of CPL 245.20 so broadly as to require the disclosure of plainly irrelevant materials that have nothing to do with the charges. By removing the opening paragraph, the Legislature eliminated the need for prosecutors to locate irrelevant materials, though they are still required to provide the defense with all the information needed to defend the charges.

The new catch-all provision in section “v” requires a prosecutor to disclose any material beyond the 21 categories that is “relevant to the subject matter of the charges against the defendant” (emphasis added).

The second modification of the law addressed the timing of a challenge to a certificate of compliance. Previously, there was no time limit within which a defendant was required to file this challenge. Prosecutors complained, however, that this promoted gamesmanship on the part of defense counsel. By “laying-in-wait,” it was claimed that defense counsel held back until the speedy trial time had passed before notifying prosecutors of defects in the certificate of discovery.

The amendment requires that a challenge to a certificate of compliance be made within 35 days of its service upon defense counsel, provided that the prosecution has filed an indictment or information prior to the filing of the certificate (CPL 245.50(4)). A court may extend the time period to challenge a certificate of compliance for good cause shown. Any such extension shall be excluded from a speedy trial calculation, unless the court finds that either the prosector unreasonably delayed in responding to the defense’s good faith efforts to confer, or did not file the certificate in good faith. Finally, defense counsel may challenge its validity beyond the 35-day period where the grounds for such challenges are based on a material change in circumstances.

The challenge to the certificate of compliance must now be accompanied by an affirmation alleging that: (1) after the filing of the certificate, defense counsel timely conferred in good faith or made good efforts to confer with the prosecution regarding the basis for the challenge; (2) efforts to obtain the missing discovery from the prosecution or otherwise resolve the issues raised were unsuccessful; and (3) no accommodation could be reached.

The third, and most significant, amendment provides criteria for adjudicating defense challenges to a certificate of readiness. When the discovery law was substantially revised in 2020, the statute created a new compliance mechanism for prosecutors. Thus, pursuant to CPL 245.20(1), a court must determine whether the prosecution has “exercised due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery.” In addition, “the prosecutor shall make a diligent good faith effort to ascertain the existence of” discovery materials outside of their possession. (CPL 240.20(2)). The Legislature coupled these obligations under CPL 245 to the CPL 30.30’s speedy trial requirements. Thus, for the first time, the prosecution could not be ready for trial, for purposes of CPL30.30, until a proper certificate of compliance was filed.

In addition, under the law that was enacted in 2020, the people were required to submit a certificate of compliance, attesting to good faith compliance with CPL 245, before they could provide notice that they were ready for trial.[2] At that point, the statute requires a court to “make inquiry on the record as to [the People’s] actual readiness.”[3]

The new law, however, did not define “due diligence.” Subsequently, in People v. Bay,[4] the Court of Appeals defined “due diligence” in the context of filing a valid certificate of compliance.

Under the recent amendment, the Legislature has now adopted Bay’s “due diligence” analysis (with some differences). Pursuant to CPL 245.50(1), a certificate of compliance can now be filed by the prosecution even if certain materials or information are not disclosed. The prosecutor, however, must identify that information, and state that it could not be obtained despite the exercise of due diligence. Under CPL 245.50(5), a court must now assess due diligence by considering the following factors: (1) the efforts made by the prosecutor to comply with the requirements of the discovery statute; (2) the volume of discovery provided and the volume of discovery outstanding; (3) the complexity of the case; (4) whether the people knew that the belatedly disclosed or allegedly missing material existed; (5) the explanation for any alleged discovery lapses; (6) the prosecutor’s response when apprised of any allegedly missing discovery; (7) whether the belated discovery was substantively duplicative, insignificant or easily remedied; (8) whether the omission was corrected; (9) whether the prosecution self-reported the error and took prompt remedial action without court intervention; and (10) whether the prosecution’s delayed disclosure of discovery was prejudicial to the defense or otherwise impeded its ability to investigate effectively the case or prepare for trial.

It should be noted that, in People v. Bay, the Court of Appeals held that a defendant need not demonstrate prejudice because a speedy trial dismissal is not contingent on a finding of prejudice. The Legislature, nevertheless, added “prejudice” as a relevant factor in determining a prosecutor’s due diligence.

The Legislature also inserted language in the statute to make clear that a court must look at the totality of circumstances, i.e., a court shall not assess the prosecutor’s efforts “item by item” and “no one factor shall be determinative.”[5] Finally, a court must explain the basis for its determination “on the record or in writing.”

The amendment is also consistent with Bay’s conclusion that a prosecutor’s good faith is not sufficient, standing alone, to cure a lack of diligence. Thus, an inadvertent oversight will not be excused if it could have been avoided with the exercise of due diligence. The new statute provides: “[A] court shall not invalidate a certificate of compliance where the party has exercised due diligence and acted in good faith in making reasonable inquiries and efforts to obtain and provide the material required to be disclosed pursuant to section 245.20 of this article” (emphasis added).

In the debate over whether the discovery law should be amended, prosecutors argued that, after the 2020 law was enacted, there had been a significant increase in statewide dismissals pursuant to the speedy trial statute. The Legal Aid Society, however, noted that 92% of the dismissals occurred in the five counties in New York City and that the majority of them were in misdemeanor cases.

Further, the Legal Aid Society stated that “dismissal rates in New York City can be explained by the New York City’s intransigence toward complying with the law on lower-level offenses like misdemeanors. As we can see every day in our criminal courts, the NYPD routinely fails to timely share case evidence with prosecutors.”[6]

To address the problem, two bills have been introduced: one before the state Legislature and one at the New York City Council. Each bill has the same purpose. Under the proposed state law, district attorney offices would have direct access to law enforcement records and databases.[7] Under the New York City local law, the Administrative Code would be amended to give prosecutors within New York City the ability to access any electronic recordkeeping system maintained by the New York City Police Department.[8]

A second significant legislative change relates to the expansion of electronic court appearances in criminal proceedings. A new section of the Criminal Procedure Law now permits electronic appearance at arraignments, guilty pleas, sentencing and evidentiary hearings.[9] Such appearances must be based on consent of the defendant and they can be terminated if an attorney does not have an adequate opportunity to confidentially consult with a client.

Electronic proceedings cannot be conducted, however, at trials or grand jury presentations and they may not be conducted when a defendant is under the age of 18. The law requires the chief administrative judge to adopt rules to regulate the conduct of these electronic appearances.

The Office of Court Administration has promulgated Rule 200.9-a on an interim basis starting on July 8, which was the effective date of the new law. Under the proposed rule, the decision whether to consent belongs to the defendant and not their counsel. As a result, for all evidentiary hearing, plea and sentencing proceedings the court must both (1) make a clear record regarding consent before scheduling a virtual proceeding and (2) confirm such consent before allowing the proceeding to go forward. The office has solicited public comments about the above proposed rule that were due by Aug. 8.

Each year, the Legislature enacts new crime laws and expands the definition of others, and this year was no exception. In returning to the crime of identity theft, the Legislature amended the definition of “personal identifying information” which, if obtained fraudulently, can constitute the crime of identity theft. That definition will now include “medical information” and “health insurance information.”[10] In expanding the definition of this crime, the Legislature was responding to an increase in medical identity theft in which physician identification numbers and patient identification information has been stolen at an increasing rate.

The definition of “promoting an obscene performance by a child” (P.L. Section 263.10) has been expanded to include a ‘performance created or altered by digitization.”[11] The definition of a “rapid-fire modification device,” a type of weapon, now includes a “pistol converter.”[12]

A number of procedural changes were enacted in the past legislative session. In last year’s session, the Legislature provided more security for jurors by permitting a court to issue a protective order that prevents the names of prospective jurors from being made public.[13] This year, the Legislature clarified the definition of “good cause,” which permits such anonymous juries. The court can issue an order upon a finding that good cause exists to believe that there is a threat to the safety or integrity of the jury.[14] In a separate bill, jurors will now be paid $72 per day, an increase of $32.[15]

The Legislature has also enacted a number of provisions related to problem solving courts. Twenty-six counties in the state have at least one mental health court. A new bill permits a case to be transferred from a county without a mental health court to an adjoining county which does have one, provided the district attorneys of both counties give their consent.[16]

With respect to defendants who have been charged with a misdemeanor but found unfit to proceed to trial, a new bill addresses their needs before they are returned to the community. Once the defendant is sent for treatment by the court, the misdemeanor is automatically dismissed. Before the defendants are ultimately released, the new bill provides that they will be referred to case management and services appropriate to support them.[17]

Finally, the Legislature has expanded judicial eligibility for presiding over designated youth parts. The bill will permit court of claims judges and Supreme Court judges outside of New York City, who are acting Supreme Court justices assigned to the criminal term, to preside over designated youth parts.[18]

The Legislature has enacted procedural safeguards for certain classes of defendants. In 2022, legislation was enacted to protect access to abortion and gender-affirming care in the wake of the U.S. Supreme Court’s overruling of Roe v. Wade. This year, a bill was enacted which prohibits a police officer from arresting a person for engaging in any “legally protected health activity.” In addition, the police are now required to engage in child-sensitive arrests when arresting an individual who is legally charged with the care and custody of a child under the age of 18 years.[19]

For the first time in 60 years, the Legislature has increased fines for corporations that have been convicted. The new increased penalties are as follows: $80,000 for a felony conviction; $40,000 for a Class A misdemeanor conviction or an unclassified misdemeanor for which a terms of imprisonment of three months is authorized; $15,000 when the conviction is a class B misdemeanor or an unclassified misdemeanor for which a term of imprisonment is not in excess of three months; $4,000 when the conviction is for a violation.[20] When a corporation is convicted of corrupting the government under Article 496 of the Penal Law, the fine is any amount not exceeding three times the amount of the corporation’s gain from the commission of the offense.

Finally, the Legislature enacted various forms of relief for victims of crimes. Orders of protection for non-family domestic violence offenses will now be filed under the statewide computerized registry, along with family offenses.[21] A health care worker who is the victim of a felonious assault now has the right to give a statement to the police at his or her workplace rather than the police station.[22]

In addition, a prosecutor must now mail a crime victim a copy of the final disposition of a case.[23] Last year, the Legislature enacted a law which requires a prosecutor to inform a crime victim of the defendant’s incarceration status. This year, it clarified what information must be provided: the contact information for the Department of Corrections and Community Supervision and the Office of Victim Assistance.[24]

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.

Endnotes:

[1] 2025 N.Y. Laws, Ch. 56, eff. August 7, 2025.

[2] CPL 30.30(5).

[3] Id.

[4] 41 N.Y.3d 200 (2023).

[5] CPL 240.50(5).

[6] Gov. Kathy Hochul, Defense Bar Remain at Odds on Discovery Reforms, N.Y.L.J. (March 24, 2025).

[7] S 613, not yet passed by either the Assembly or Senate.

[8] Int. No. 1262.

[9] L. 2025, N.Y. Laws, Ch. 55, eff. July 8, 2025.

[10] L. 2024, N.Y. Laws, Ch. 613, eff. April 21, 2025.

[11] L. 2025, N.Y. Laws, Ch. 55, eff. July 8, 2025.

[12] L. 2025, N.Y. Laws, Ch. 115, eff. October 9, 2025.

[13] 2024 N.Y. Laws, Ch. 60, eff. December 21, 2024.

[14] 2025 N.Y. Laws, Ch. 31, eff. December 21, 2024.

[15] 2025 N.Y. Laws, Ch. 55, eff. June 8, 2025.

[16] A 7563, awaiting the signature of the governor.

[17] S 1744, awaiting the signature of the governor.

[18] S 8196, awaiting the signature of the governor.

[19] 2025, N.Y. Laws, Ch. 131, eff. June 30, 2025.

[20] S 2551, awaiting the signature of the governor.

[21] A 7265, awaiting the signature of the governor.

[22] S 4906, awaiting the signature of the governor.

[23] A 6332, awaiting the signature of the governor.

[24] 2025 N.Y. Laws, Ch. 23, eff. March 13, 2025.