Busted in NY? Three Ways it Will Be Easier to Win Your Case

By Zachary Margulis-Ohnuma

This year’s New York State budget passed earlier this month with the most sweeping criminal justice reforms in at least a generation. The changes go into effect in 2020 and will change almost everything about defending people in New York State cases, where the vast majority of arrests in New York are handled. How will they affect your case? Read on.

First, “Discovery Reform” will replace the New York “Blindfold Law.” Under the current system, defense lawyers learn only what DAs want to tell them abut the case until the moment before trial. Under the new rules, starting on January 1, 2020, discovery is going to be “open, early and automatic.” That means that prosecutors will have to hand over all information about the case “as soon as practicable” but not more than 15 days after the defendant is arraigned, at least in most cases. And discovery is much broader than it ever was, including not just trial exhibits but also all witness statements, all grand jury minutes (not just of testifying witnesses), names and contact information for all potential witnesses, exculpatory information, and pretty much anything else in a prosecutor’s file. If you are being charged with a felony, you get your own statements at least 48 hours before the grand jury presentation–that can give you a chance to testify in the grand jury without worrying about getting tripped up by a statement you made previously to a detective. Perhaps most importantly, if the DA makes a plea offer, you are entitled to full discovery before the DA can withdraw the plea offer. Prosecutors cannot condition the plea offer on a waiver of discovery rights. No longer will defense lawyers ask for discovery during plea negotiations only to be told, sarcastically, “your client knows what he did.” Click the link for Part LLL of Chapter 59 of the New York State Laws of 2019, the full text of the new New York criminal discovery rules.

Second, you have a much better chance of getting released while your case is pending under New York state’s new bail rules. There will be mandatory release for all misdemeanors and non-violent felonies–except, of course, sex offenses (and cases involving contempt of domestic violence court orders). For more serious offenses, the court can only set money bail with the least restrictive conditions and with at least three options or ways to pay: cash, unsecured bond, and partially secured bond. Electronic monitoring can be used to prevent flight in serious cases, but you won’t have to pay for it and there are many limitations. If the court sets a monetary bail, it will have to consider the defendant’s ability to pay and any undue hardship, and it put its reasoning on the record. As a practical matter, the reforms should lead to fewer thoughtless decisions over bail that needlessly separate people from their families even though they are presumed to be innocent. Click the link for Part JJJ of Chapter 59 of the New York State Laws of 2019, which shows the amendments to the bail rules and Desk Appearance Ticket provisions.

Third, the new reforms close loopholes in the powerful New York speedy trial rules. Technically, misdemeanors have to be ready for trial within 90 days of arrest and felonies have to be ready within six months. But under the current rules, DAs find loopholes to drag cases out for years. After the reforms go into effect, prosecutors won’t be able to claim to be ready for trial until they certify they have turned over all the discovery. They won’t be able to claim to be “partially ready” for trial on some counts and not on other counts. When prosecutors claim to be ready, the judge will have to inquire whether they are actually ready. Speedy trial motions will be made orally, with no need for all the expensive formalities governing written motions. And if you plead guilty, you do not waive your right to appeal a speedy trial decision that went against you. Here is a link to Part KKK of Chapter 59 of the New York State laws of 2019, which amends the speedy trial provisions.

There is much, much more to the new law. The criminal defense community is still taking it all in (check back here for further updates). But just these three reforms promise to change everything about how cases are handled once they go into effect. Smart, aggressive lawyers will learn how to use them to beat bad cases and get clients released and favorable pleas even on strong cases. Make sure your defense lawyer knows the new rules and how to use them to your best advantage. Call our office for more information, especially if you are facing New York sex crimes, child pornography, or serious felony charges.