Legislative Reform Resource Materials Update

Reminder to all to visit the NYSDA website to access a curated collection of resource materials for defenders to aid in the implementation of the various new laws and provisions that took effect on Jan. 1, 2020. We announced this new collection in the December 26 News Picks, and we will be adding materials as we move forward. Watch for news of those additions in future editions of News Picks, and also check the site.

Of note to date, with many thanks to The Legal Aid Society, we have added Common Questions (and Pointers) About the 2020 Reforms , a collection of issues and questions identified in the early days with some answers and ideas for responding to challenges raised in the courts; and New Discovery Law Applicable to Pending Cases - legal arguments & recent decision . The latter provides supporting information to respond to assertions that the new law does not apply to cases pending on January 1st, together with a decision on the point. We have also posted The Center for Appellate Litigation’s training materials on the speedy trial reforms ( The New 30.30: Preserving Issues for Appellate Review ). Thank you to CAL for making this available to defenders. We have also posted the revised version of the UCS-517 Court Date Reminder form, which added an opt-out for individuals who decline to provide their contact information, on the Bail Reform Implementation page.

For those that may have referred to the excellent PowerPoint slide pages created by the Monroe County Public Defender’s Office related to the new Discovery Reform, we added a note to slide 4 regarding the application of the provisions of Article 245 to Uniform Traffic Tickets (UTTs).

Since UTTs are Simplified Informations under CPL 1.20(5), the consensus among practitioners is that the new rules would apply if and when a person appears in court on a ticket for an arraignment. However, to the extent that tickets can be disposed of via mail without the need for an appearance, therefore circumventing arraignment, the rules would not necessarily impose discovery obligations on prosecutors. There is no reason to believe that provisions under CPL 100.25(2), related to requesting a Supporting Deposition, would be affected in any way.

For attorneys handling traffic matters for clients who reside outside the jurisdiction, it may be necessary to advise clients as to rights and obligations under the new CPL Article 245 prior to negotiating dispositions in absentia .

New Discovery Law Decisions and Standing Order

One decision regarding the applicability of the new CPL Article 245 to pending cases appears in the Legal Aid Society’s piece linked above. Another decision on this issue is People v DeMilio (2020 NY Slip Op 20003 [County Ct, Dutchess Co 1/7/2020]), which held:

  • The legislative history to Article 245 pounds a steady beat: that broad pretrial discovery is essential to a fair and just criminal justice system; that the discovery afforded by the former Article 240 was unduly restrictive; and that the comprehensive discovery provided by Article 245 will promote better and more efficient outcomes [Memorandum in Support of Legislation, Assembly Bill A04360; Sponsor's Memo to Senate Bill S1716]. Recognizing the goals that this legislation seeks to achieve, there is no plausible basis to interpret the broad discovery provisions of Article 245 as being beyond the reach of pending indictments that were the subject of an earlier statement of readiness for trial.

Earlier this week, two Cortland County Court judges issued a Standing Decision and Order Permitting the Release of Grand Jury Minutes . This decision and order, requested by the prosecution, states that “effective January 1, 2020, and until such time as the New York State Legislature modifies or amends CPL 245.20 and/or CPL 190.25, the people are hereby ordered to disclose transcripts of the testimony of witnesses, defendants and/or co-defendants, given before a Grand Jury. Such disclosure is authorized upon the written request made by defendant or defense counsel to the people. This order shall be effective nunc pro tunc .”

Recent Bail Reform News

As discussed in a Jan. 8, 2020, City and State article , NYSDA joined a coalition of 60 criminal justice reform groups that sent an open letter to the Governor and legislative leaders calling on them to stand firm and not roll back the bail reform law that took effect on January 1. “Make no mistake,” the letter reads, in part, “retreating from bail reform less than a week after it goes into effect because of predictable fearmongering will be a retreat from New York’s position as a leader in criminal justice reform and will embolden opponents who prefer the status quo.”

Below are excerpts from a few of the other articles, opinion pieces, and letters to the editor published after the first of the year:

  • Hon. Karen Peters (ret.), New Bail Reform Laws Make New York State a Safer Place, Times Union (1/8/2020). “Notwithstanding the fearmongering that has occurred in opposition to the changes to the bail and discovery statutes, they will undoubtedly make our state a safer and more just place to live.… As a former trial judge, appellate judge and presiding judge of the Third Department, I can envision firsthand the systemic benefits of these reforms. They are long overdue, will result in a fairer criminal justice system, and will make a true difference for justice. Whether conservative or progressive, we all want our system of justice to be fair. Gov. Andrew Cuomo and the members of the Legislature who championed these reforms should be commended for leading the way.”

  • Assembly member John T. McDonald III shared his thoughts on bail reform on Jan. 7, 2020, in the Times Union. “I hope we can agree on two things. One, anyone accused of a crime is innocent until proven guilty. That is a part of our constitution. Secondly, I hope we can agree that just because one is poor and commits a crime and another person is wealthy and commits a crime that the poor person is no more or no less a threat than the wealthy person.” 

  • Chris Churchill, Bail Reform Always Existed for the Rich, Times Union (1/4/2020) “Politicians, prosecutors and other practitioners of shallow outrage are wailing at the very notion of defendants going free prior to their trials. The rhetoric is overheated, designed to inspire fear and motivate votes. … Left unsaid is that people accused of crimes — even crimes as horrific as Porco's — were already going free pending their trials, so long as they had money. The new law is only giving the poor the same privileges as, well, the privileged.”

  • Assembly members Dan Quart, Harvey Epstein, and Linda B. Rosenthal, Not in Our Name: Don’t use anti-Semitic attacks as a rationale for rewriting bail reform, NY Daily News (1/8/2020). “As Jewish legislators, we are deeply concerned about the rash of anti-Semitic attacks. We also know that we combat anti-Semitism through education and community dialogue, not incarceration, which is why we are deeply concerned about recent attempts to use these attacks as a rationale for dismantling New York’s brand new bail reform law.”

Amendments to Parole Regulations to Take Effect Later This Year

As announced in the Jan. 8, 2020, edition of the State Register (pp. 8-9), the NYS Department of Corrections and Community Supervision (DOCCS) has adopted amendments to regulations governing release conditions (9 NYCRR 8003.2 [effective 7/8/2020]), time assessment calculations (8002.6 [effective 12/8/2020]), and guidelines for assessing penalties (8005.20 [effective 12/8/2020]). The amendments are described in prior notices published in the State Register : Jan. 30, 2019 (pp. 3-4) and Oct. 16, 2019 (pp. 13-15). Of note is the new 9 NYCRR 8005.20, which DOCCS describes as:

  • creat[ing] new guidelines for assessing penalties that emphasize categories based on current violative behavior, and assign a new set of available penalties based on the severity of such violative behavior. Additionally, the new guidelines will expand the availability of Department of Corrections and Community Supervision alternative program dispositions (dispositions which allow the violator to avoid service of a time assessment by completing the DOCCS program), and the creation of a violation category in which the maximum available penalty is the imposition of such an alternative program disposition.

In related news, the NYSBA Task Force on the Parole System is conducting a detailed review of parole rules, regulations, practices and procedures in New York (as compared to other states), and is in the process of developing recommendations for areas in which the process can be improved. In their recent report , the Task Force found the “longstanding policy of reincarceration is counterproductive and costly, both in human and financial terms, and should be promptly addressed through remedial legislation.” The Report, which was approved by the NYSBA House of Delegates on Nov. 2, 2019, outlines priorities to address and recommendations for reform.