Let’s time travel back to the pre-pandemic times of January and February of 2020. Bail and discovery reform was dominating news coverage; elected officials saw revising the new law as job #1 for State Government.
The COVID-19 pandemic has changed the way New York State administers justice and as Chief Judge DiFiore said in her weekly address, New York’s virtual courts are busier and more productive than ever.
Video hearings, video arraignments and video mediations, they’re all here to stay in some form once the court system returns to ‘normal.’ Another aspect of the court system that has gone virtual is bail applications. At the recent NYSBA CLE Program Bail Reform: What Has Changed And What Have We Learned, Jonathan Cohn, partner at Gerstenzang, Stills, Cohn & Gerstenzang and Saratoga County Assistant District Attorney Shawn Lescault provided some insight on how practitioners can best handle virtual bail applications.
Cohn, who is an experienced criminal defense lawyer in Albany, and Lescault, who has been an assistant district attorney in Saratoga County, both noted that the judge is always looking for the least restrictive option.
When it comes times for a virtual bail application to occur, both presenters agreed on a few practical tips that lawyers can use to ensure things go smoothly.
Cohn, who has handled a few virtual bail applications, recalled one client who took a phone call while sitting on top of a roof of a house.
“My client said he was sitting on top of his roof,” said Cohn. “With the wind and all the other noise, it was less than ideal.”
Now he says he reminds all his clients to take virtual appearances seriously. “I now make sure to remind everyone to dress the part and go to a quiet location.”
In addition to these challenges, Cohn also stressed how important preparation is now. “Not only are there nuances with what is a qualifying offense but now I’m no longer in the room with my client, so I’ve had cases where I’ve asked to go on mute and then call my client on the phone to make sure we were on the same page. ”
Lescault also noted that phone conversations with defense lawyers can go a long way to ensure the new normal goes as smoothly as possible.
Cohn also pointed out that Executive Order 202.76, signed by Gov. Andrew M. Cuomo on Nov. 20, states that “any appearance at a criminal proceeding may be conducted virtually by electronic appearance with the consent of the parties…,” meaning that if the court asks to appear virtually the defendant has to consent before it can take place.