2020 Bail Reform and Discovery Update

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2020 has been an unprecedented year in many ways. In the New York criminal justice system, there were two major Criminal Practice Updates. Specifically, the two major changes from the legislation were:

  • New York Bail Reform Act, AND
  • New York Discovery Reform.

New York 2020 Bail Reform Act

Prior to 2020 Bail Reform Act

Prior to 2020, the bail statute, codified in New York Penal Law Article 530 gave the judge three bail options. Specifically,

  1. Monetary bail,
  2. Release on Defendant’s own recognizance;
  3. Remand into custody.

After 2020 Bail Reform Act

Since January 1, under the 2020 Bail Reform, the New York Criminal Procedure Law Section 510.10, requires that persons charged with:

  • Most Misdemeanors,
  • Most Non-violent felonies,
  • Robbery in the second degree (PL §160.10),
  • Burglary in the second degree (PL §140.25).

Be released on their own recognizance or with non-monetary bail. The Court must release Defendants on their own recognizance, unless there is a demonstrated risk of flight to avoid prosecution. If there is a risk of flight, the court must impose the least restrictive conditions permissible to reasonably assure the Defendant’s appearance for Court.

Bail Eligible Offenses

After multiple amendments, the legislation lists the following crimes are bail eligible offenses, meaning bail can be set for these crimes.

  • Sex Felonies (Penal Law Article 130),
  • Patronizing a Person for Prostitution in the First and Second Degree (PL 230.05 and 230.06),
  • Aggravated Patronizing a Minor for Prostitution in the First, Second and Third Degree (PL 230.11, 230.12, 230.13),
  • Promoting a sexual performance by a child (PL Sec. 263.10),
  • Strangulation in the second degree when committed against a family member (PL Sec. 121.12),
  • Unlawful imprisonment against a family member (PL Sec. 135.10),
  • Aggravated vehicular assault (PL Sec. 120.04),
  • Assault in the third degree when charged as a hate crime (PL Sec. 120.00),
  • Arson in the third degree when charged as a hate crime (PL Sec. 150.10),
  • Criminal Contempt (PL 215.51(b)(c)(d) and 215.52, if underlying charge is a domestic violence offense),
  • Grand larceny in the first degree (PL Sec. 155.42),
  • Operating as a Major Drug Trafficker (PL 220.77),
  • Witness Intimidation and Tampering (PL 215.11, 215.12, 215.13, 215.15),
  • Conspiracy to Commit Murder (PL 105.15),
  • Money Laundering in Support of Terrorism (PL 470.23, 470.24),
  • Any crime resulting in death,
  • Failure to register as a sex offender where the defendant is a level 3 offender.

When Defendant Committed the Crime While Released on Recognizance or Other Pre-Trial Condition

Under the 2020 Bail Reform Act, when someone commits a felony or a Class “A” Misdemeanor while released on their own recognizance or on any other pre-trial condition, the Arraignment Judge has the power to set cash bail. However, in order to set cash bail, the prosecutor must demonstrate that there is “reasonable cause to believe that the defendant committed the instant crime and any underlying crime.”

New York Discovery Reform

In 2020, New York legislature also amended Criminal Procedure Law Section 245, which governs discovery in criminal cases. The amended legislation took effect on May 3, 2020.

Discovery Prior to 2020 Amendment

Prior to the Amendment, discovery in criminal cases only occurred upon demand by defense counsel. Additionally, discovery was limited to certain types of documents, which were enumerated in Criminal Procedure Law Section 220. These materials included:

  • Defendant’s statements,
  • Grand Jury Testimony of co-defendant,
  • Physical and scientific testing, AND
  • Photographs.

That is why prior to 2020, New York’s Discovery Laws were commonly called “Blindfold Laws” since the accused were kept in the dark about the evidence against them pretty much until trial.

Discovery After 2020 Amendment

Under the 2020 Amendment, discovery in a criminal cases is automatic. Defense counsel no longer needs to make a request or file a motion seeking evidence. Rather, the prosecutor is required to turn over all information that relates to the criminal case.

Expanded Categories of Discovery

Under the newly amended discovery statute, the types of discovery that the prosecutor is required to provide have greatly expanded. This includes:

  •  All written or recorded statements, and the substance of all oral statements, made by the defendant or a co-defendant to law enforcement;
  • Grand Jury testimony relating to the prosecution of Defendant or co-Defendant;
  • The names and contact information for civilian witnesses with information relevant to any offense charged or to any potential defense;
  • The names of law enforcement witnesses;
  • All statements, written or recorded or summarized in any writing or recording, made by witnesses who have evidence or information relevant to any offense charged or to any potential defense;
  • Expert opinion evidence, including the name, business address, current curriculum vitae, a list of publications, and a list of proficiency tests and results administered or taken within the past ten years of each expert witness;
  • All tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident;
  • All photographs and drawings made or completed by a public servant engaged in law enforcement activity,
  • All photographs, photocopies and reproductions made by or at the direction of law enforcement personnel of any property;
  • All reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning physical or mental examinations, or scientific tests or experiments or comparisons;
  • Brady material;
  • A summary of all promises, rewards and inducements made to, or in favor of, persons who may be called as witnesses;
  • A list of all tangible objects obtained from, or allegedly possessed by, the defendant or a co-defendant;
  • Whether a search warrant has been executed and all documents relating thereto, including but not limited to the warrant, the warrant application, supporting affidavits, a police inventory of all property seized under the warrant, and a transcript of all testimony or other oral communications offered in support of the warrant application;
  • All tangible property that relates to the subject matter of the case, along with a designation of which items the prosecution intends to introduce in its case-in-chief at trial or a pre-trial hearing;
  • A complete record of judgments of conviction for all defendants and all persons designated as potential prosecution witnesses;
  • When it is known to the prosecution, the existence of any pending criminal action against all persons designated as potential prosecution witnesses;
  • The approximate date, time and place of the offense or offenses charged and of the defendant’s seizure and arrest.

New Timeline for Turning Over Discovery

The timeline for turning over all the discovery to defense counsel is:

  • For incarcerated defendants – 20 days from Arraignment.
  • For defendants at liberty – 35 days from Arraignment.

If the materials are voluminous, the prosecutor gets a 30-day extension to turn over discovery. CPL 240.10 lists the following examples of voluminous discovery:

  • Body worn camera footage,
  • Surveillance cameras,
  • Dashboard cameras.

This extension is automatic and does not require a motion or permission from the Court. Once discovery is complete, the prosecutor must file a certificate of compliance with the Court indicating they have produced all requisite discovery.

Non-Discoverable Material

Non-discoverable materials will be reviewed by the Court for the determination of whether they are indeed non-discoverable. The defense, however, must be informed in writing if any materials are not produced.

Contact Us if You Have Questions About 2020 New York Criminal Practice Updates

If you have any questions about 2020 Bail Reform and Discovery Updates, please contact us. Schedule your consultation today to go over your case.