Discovery and Speedy Statutes Amendments to Take Effect August 7, 2025

After lengthy advocacy, testimony, and negotiations, the discovery and speedy trial amendments have been published and will take effect August 7, 2025. See our May 14 News Picks from NYSDA Staff for more detailed coverage of these and other changes, along with a summary of defense funding. We have included marked up versions of both CPL 30.30 and article 245 on our website so readers may see the amendments in context.

Those marked up statutes and updated resources can be found here, along with impassioned debate video from Assemblymembers who fought to keep discovery and speedy trial from being rolled back as the Governor proposed. As our colleagues publish additional resources summarizing the changes and litigation resources, we will link those on our website.

NYSDA will be offering training on the changes to the discovery law at our 58th Annual Meeting and Conference in July. More information about the conference appears below and registration is open through July 3rd.

“Discovery Reform in New York: What Can the Data Tell Us?”

The Data Collaborative for Justice at John Jay College issued a report in April titled “Discovery Reform in New York: What Can the Data Tell Us?” Using data from the Office of Court Administration (OCA) and dividing the state into New York City (Bronx, Brooklyn, Manhattan, Queens and Staten Island), “downstate suburban region” (Nassau, Suffolk, Westchester, and Rockland), and “upstate” (the 53 remaining counties), the report largely focused on three areas of analysis: (1) whether evidence sharing provisions are associated with an increased dismissal rate; (2) prosecutorial compliance with disclosure timeframes; and (3) whether cases are processed at different rates than before discovery reform.

Importantly, the authors acknowledged inconsistencies within the court system (e.g., discrepancies in entering COC filing data in many New York City Criminal Courts) and thus limitations of some of the OCA data. This study underscores the argument that data must be analyzed before it is used to change policy.

In New York City, the speedy trial dismissal of misdemeanors skyrocketed from 9% to 49% while outside of New York City, speedy trial dismissal rates increased from 1% to 5% for downstate suburban counties. The indicted felony dismissal rate on speedy trial grounds remained under 1% for each area from 2019 to 2024. The authors surmised that speedy trial dismissals before the expiration of the time “presumably took place with the consent of the prosecutor.” During this year’s budget session, defenders and allies advocated fiercely to emphasize these facts and statistics, despite the district attorneys’ narratives to the contrary.

The Data Collaborative for Justice was the first to systematically address the question “to what extent have the prosecutors shared their evidence within discovery reform’s legal timelines?” Main findings regarding indicted felonies included that fact that “the City’s district attorneys’ offices complied infrequently with discovery reform’s legal timelines for sharing evidence.” The downstate suburban counties met the timelines at similar to “modestly higher” rates than the City DAs. The authors then cautioned about discussing the rest of upstate as a whole but stated that compliance with COC timelines upstate was generally at higher rates. Pointing to a select few upstate counties, “the Chenango, Montgomery, and Steuben District Attorneys’ offices saw especially high rates of meeting the legal timelines for misdemeanors, as did the Albany, Chenango, Washington, and Yates DAs’ offices for felonies” (emphasis omitted). Across all regions, DAs’ offices “filed a supplemental certificate in at least 30% of their indicted felonies cases.”

When assessing any change in the time it takes to process cases, the authors concluded that given overlapping developments including pandemic-related disruptions in 2020 and 2021 and more recent efforts to address case processing delays, “it is unfeasible to rigorously isolate cause and effect with respect to discovery reform.” They were able to observe, however, that case processing times were reduced for all case types in New York City while non-city jurisdictions saw a “clear increase for indicted felonies.”

DOCCS Amends Rules on Incoming and Outgoing Legal Mail

In the May 21, 2025 edition of the New York State Register, the Department of Corrections and Community Supervision (DOCCS) published an emergency and proposed rulemaking notice changing the procedures by which incarcerated individuals receive and send privileged correspondence.

Incoming privileged correspondence was previously allowed to be x-rayed, 22 NYCRR 721.3(b)(5)(i). That process has now been expanded considerably from x-rays specifically to being “screened in a non-invasive manner to detect potential contraband.” The amended subparagraph gives DOCCS broad and unspecified powers to search mail: “The screening of potentially privileged correspondence shall be done in a manner such that the potentially privileged content of the correspondence cannot be viewed and, unless done in the presence of the incarcerated individual, without opening the correspondence. All screening will be completed, as unobtrusively as possible, to confirm that the correspondence does not contain contraband.”

Mail that is not screened under the amended 721.3(b)(5)(i) will be “opened and inspected” in the presence of the incarcerated individual. If incoming correspondence does not pass inspection, DOCCS must notify the sender as well as give the incarcerated individual written notice (new 721.3[b][5][ii]). Section 721.3, paragraph (a)(2) is also being amended to allow outgoing privileged correspondence to be inspected in the same manner as incoming mail under 721.3(b)(5).

DOCCS argues the amendments are “necessary to provide updated guidelines for the screening and inspection of incarcerated individual privileged correspondence in an effort to curtail the introduction of drugs and dangerous contraband into correctional facilities.” As detailed in the May 14, 2025 edition of News Picks, (“DOCCS Scanning Legal Mail”), the Department has already announced the installation of “new mail-scanning technology” at numerous facilities.

The emergency rule expires August 3, 2025, which can be extended. Because DOCCS intends to adopt this rule, there is a 60-day public comment period, which runs through July 20, 2025. Comments can be submitted to rules@doccs.ny.gov or Jason Golub, Deputy Commissioner and Counsel, Department of Corrections and Community Supervision, 1220 Washington Avenue, Harriman State Campus, Building 4, Albany, NY 12226-2050.

DOCCS Conditions Remain Abysmal While Reform Measures Go Misused

As noted in the last two editions of News Picks, conditions in the state’s prisons and local jails continue to be appalling, with little relief in sight.

In mid-May the Senate Standing Committee on Crime Victims, Crime & Correction and the Assembly Standing Committee on Corrections held hearing on “safety of persons in custody, transparency, and accountability within state correctional facilities.” As covered by New York Focus, DOCCS Commissioner Daniel Martuscello testified that the Department’s Office of Special Investigations (OSI) has received over $7 million to expand to every prison in the state. However, Antony Gemmell, supervising attorney at The Legal Aid Society’s Prisoners’ Rights Project, characterized OSI’s investigations as “opaque, slow, and default to weighing staff credibility over incarcerated voices, regardless of the facts.” Martuscello also suggested that every correction officer would be wearing body-worn cameras by “mid-summer.”

One obvious way to alleviate the problem is to release more incarcerated individuals, but the State has been loath to do so in any significant way. On March 31st, Martuscello issued an announcement that he would transition incarcerated individuals into residential treatment centers pursuant to Correction Law Section 73. However, according to an analysis by The City, only 151 people have been moved to residential facilities, of a possible 766 people that were initially deemed appropriate by DOCCS. And despite pleas from advocates, Governor Hochul has only granted clemency to 17 people since assuming office in the fall of 2021.

Intellectual Disability Alone is Not Sufficient to Establish a Neglect

In Matter of Tiffany N. (2025 NY Slip Op 03068 [5/21/2025]), the Second Department affirmed the dismissal of a neglect petition against a parent based on what the court termed a mild intellectual disability. The court stated in its decision that the Kings County Family Court, “correctly found that ACS did not prove by a preponderance of the evidence that the mother neglected the child. Evidence of a parent's mental illness or intellectual disabilities, alone, will not support a finding of neglect. …. Here, ACS failed to establish a causal connection between the mother's intellectual disability and actual or imminent harm to the child. Similarly, while the mother's outbursts at foster care agency staff, in the presence of the child, were inappropriate, ACS failed to establish a nexus between the outbursts and actual or imminent harm to the child.” [Citations omitted.]

Extended Period of Sobriety by a Parent Constitutes a Change of Circumstances to Withstand a Dismissal of a Family Court Custody Modification Petition

It is a long-standing rule in a family court custody and visitation case that “[w]here modification of an existing custody order is sought, the petitioner must make a showing that there has been a change in circumstances such that modification is necessary to protect the best interests of the child.” [Citations omitted.] This is true regardless of whether the parent is seeking a change in custody or an increase in visitation. In Matter of Sanna v Delong (2025 NY Slip Op 2922 [5/14/2025]), the Second Department reversed the Dutchess County Family Court, which had dismissed the father’s modification and violation petition against the mother. In doing so, the appellate court determined that an extended period of sobriety since the last custody order was issued constitutes the requisite change of circumstances to warrant a hearing on whether an increase in the father’s visitation was in the child’s best interests. Additionally, the father sufficiently alleged that the mother made a statement to the father that she intended to estrange the child to entitle the father to a hearing on his violation petition. Family defenders with questions on this or any other family court matter can email to Family Court Staff Attorney Kim Bode at kbode@nysda.org.

CAL Issues to Develop at Trial: Equal Protection for Young People Over 19

In the May 2025 edition of Issues to Develop at Trial, the Center for Appellate Litigation (CAL) proposes using the recently amended Equal Protection Clause of the New York State Constitution, which added age as a protected characteristic, to argue for expanding eligibility for youthful offender status to include young people under the age of 26. CAL provides a summary of the argument, along with a template notice of motion, affirmation, memorandum of law, and notice to the Attorney General to help defenders who may are interested in exploring the issue and raising it for clients that fall within this age group. As noted in this edition, while the argument may not be accepted by a trial court, it may be useful in plea negotiations, and the issue needs to be preserved so that post-conviction practitioners can pursue it on appeal. We again thank CAL for sharing this helpful resource with the defense community.

Comptroller Report on the State’s RTA Spending; Pending Legislation to Direct Some Funding to Community-Based Organizations

In late May, the Office of State Comptroller released a report on the state’s spending on Raise the Age (RTA). Through the 2025 fiscal year, out of a total of $1.71 billion in appropriated funds, $658.8 million has been dispersed - only 39%. And 71% of those dispersed funds are “local assistance grants” to reimburse counties for RTA expenditures. Distressingly, 45% of the expenditures in county plans has been approved for detention facilities, most of which was spent in six counties that operate secure and/or specialized secure facilities: Westchester, Erie, Onondaga, Monroe, Nassau, and Albany. Local Department of Social Services costs are the second largest expenditure category, which includes “personnel costs for case workers, RTA foster care, aftercare costs for RTA youth placements upon discharge, as well as a range of programming and therapy aimed at rehabilitation and recidivism prevention.” Unfortunately, the report does not provide any details about how much of the funding has been used for programs for young people. As noted in the report, New York City is not eligible for the state’s RTA reimbursement program.

A proposal to change the way some of the RTA funding is distributed has been working its way through the state Legislature. As described in the Senate Sponsor’s Memo, the Youth Justice Innovation Fund (S.643/A.8491) would allocate $50 million of the $250 million in annual RTA funding in the State budget, “to community-based organizations that work with youth who are at risk of, alleged to be, or adjudicated as juvenile delinquents, juvenile offenders, or adolescent offenders through age twenty-five.” While efforts to include the bill in the State’s 2025-2026 budget were unsuccessful, as reported by the BkReader, the bill was passed by the Senate on May 21st. It is now under consideration by the Assembly’s Ways and Means Committee. NYSDA supports this legislation to expedite state RTA funding to programs that are trusted by young people and provide violence-prevention services.

Cross-Race Facial Recognition Studied Using AI and EEG

Researchers in Canada have “explored the Other-Race-Effect (ORE), a well-known phenomenon in which people recognize faces of their own race more easily than others,” by combining artificial intelligence (AI) and brain activity collected through electroencephalography (EEG). A May 6th post on MedicalXpress described what a pair of studies has found: “new insights into how we perceive other-race faces, including visual distortions more deeply ingrained in our brain than previously thought.” One researcher said the new information “could open up possibilities for understanding how bias forms in the brain … [and] be used to improve facial recognition software, gather more accurate eyewitness testimony, or even as a diagnostic tool for mental health disorders ….”

Cross-racial identification has long been recognized in social science. “White perceivers typically remember faces of White targets better than faces of Black targets, and are more likely to say that a new, unfamiliar Black face is the same as one they have seen previously (Malpass and Kravitz, 1969; Meissner and Brigham, 2001),” noted a 2020 study of the human face-selective cortex. And cross-racial ID has long been an issue in criminal cases. As noted in an article on race issues in the Oct.-Dec. 2024 issue of the REPORT, a trial court’s denial of a jury charge on cross-racial ID has been found error even though the identifying witness knew the accused. People v Alexander, 231 AD3d 1310 (3rd Dept 2024) [citing People v Boone, 30 NY3d 521 (2017)]. A model instruction can be found on the Criminal Jury Instructions (CJI2d) webpage. It says, among other things, that jurors “should consider that some people have greater difficulty in accurately identifying members of a different race than in accurately identifying members of their own race, and therefore, … should consider whether the difference in race affected the accuracy of the witness's identification.” While lawyers failing to request a cross-racial instruction before Boone may not be found to have been constitutionally ineffective, the Court of Appeals views “the cross-racial identification charge as a powerful tool for assisting juries in determining whether there has been a mistaken identification, thereby reducing the risk of wrongful convictions caused by the cross-race effect.” People v Watkins, 42 NY3d 635 (2024).

Might studies like the ones above provide a basis for a stronger instruction, or help jurors, and courts, analyze disputed identifications—or their own biases?

Surveillance Company, Flock, Seeking to Become Even More Invasive

You may have encountered Flock Safety (Flock) in your cases, your children’s schools, or in your neighborhood homeowners’ association. Flock is an automatic license plate reader (ALPR) camera company with video surveillance products currently installed in over 5,000 U.S. communities. According to 404 Media, who obtained slides from an internal company presentation, Flock “is building a product that will use people lookup tools, data brokers, and data breaches to ‘jump from LPR [license plate reader] to person,’ allowing police to much more easily identify and track the movements of specific people around the country without a warrant or court order.” Some law enforcement agencies are already piloting Flock’s new product, Nova.

One example made public was Flock’s use of leaked data from the metered parking app, Park Mobile, including license plate numbers with drivers’ data (phone numbers, e-mail addresses, and even some mailing addresses). The data was input into Nova to supplement its ALPR data, making the link from license plate to person easier. Flock is also using personal information from credit bureaus Equifax and TransUnion, according to one employee. This data, in turn, may be linked to addresses, social media accounts, and vehicle owner information.

While this may be just the tip of the data iceberg, Flock has specifically stated that each action in the Nova platform is recorded in an audit trail, making it even more critical to demand audit trails in discovery and/or subpoena them directly from Flock.

Beryl Lipton, senior investigative researcher at the Electronic Frontier Foundation was quoted in the article, “For police, the definition of what is considered ‘open source’ has really expanded to include information to which no one should ever have had access. Our health data, our financial records, or any of our other digital data is hacked and ends up on the Internet, companies scrap[e] it up and add it to their package of information for police. Law enforcement would have otherwise needed to have a valid reason and warrant to access such stuff but now can just buy that access.”

This type of video surveillance is now pervasive, especially in urban areas. While challenging it in court may seem daunting, American University Washington College of Law Professor Andrew Guthrie Ferguson recently outlined some key points in an informative webinar, hosted by NYSDA, on “AI Analytics and Fourth Amendment Challenges.” For more information, email NYSDA’s Discovery and Forensic Support Unit at forensics@nysda.org.

Parents and Advocates Lobby for Parental and Family Rights

With this year’s budget season behind us, parents and advocates have sought to focus the attention of lawmakers on reforms that address the glaring inequities and systemic racism that plague the system and disproportionately affect Black, brown, and poor families. Since this legislative session began, advocates of parental and family rights have been to Albany countless times to lobby legislators to pass four main bills.

• The Family Miranda Rights Act (A.1234/S.551) would require CPS workers to inform parents and caretakers of their already existing rights at the start of an investigation.
• The Maternal, Health, Dignity, and Consent Act (A.860/S.845), formerly known as the Informed Consent Act, would require healthcare providers to obtain “informed consent” before drug testing or screening of perinatal people and their newborns, except in cases of emergency.
• The Anti-Harassment in Reporting Act (A.66-A/S.550-A) would require that individuals who call the state central hotline to report suspected abuse or maltreatment to provide their name. This information would be kept confidential, while still allowing the authorities the ability to contact the caller with any follow-up questions.
• The Preserving Family Bonds Act (A.4940-B/S.5240-A) would give courts the authority to order post-termination of parental rights contact between the child and their family of origin if it is in the child’s best interest. The bill has passed the legislature three times, only to be vetoed by two different governors.

A number of news outlets have covered the various lobby days that advocates, including NYSDA, have participated in, including Channel 6 News and the Imprint. Those with questions about these bills are encouraged to email Family Court Staff Attorney Kim Bode at kbode@nysda.org.

Public Comment Sought on Changing “Poor Person” Language in Court Rules

In a May 5th Request for Public Comment, the Administrative Board of the Courts released proposed amendments to various court rules. They would replace the phrase “poor person” with “language consistent with Chapter 589 of the Laws of 2024.” That legislation changed terms like seeking “permission to proceed as a poor person” with more neutral terms like seeking “to waive costs” for a party who has “insufficient means” to pay them. The proposed revisions would affect the Rules of the Chief Administrator, the Uniform Civil Rules for the Supreme Court and the County Court, and the Uniform Rules for the Family Court,” attached to the announcement. Comments on the proposed changes should be emailed to rulecomments@nycourts.gov by Friday, June 27.

Similar changes to the Rules of Practice of the Court of Appeals, 22 NYCRR Part 500, were announced in March, as NYSDA reported in News Picks.

Reflections on the DVSJA

Two recent publications look at aspects of the Domestic Violence Survivors Justice Act (DVSJA) five years after its passage. The first is “A Second Look at Second Look: Promoting Epistemic Justice in Resentencing” (100 NYU Law Rev 1). NYU Law Professor Katharine R. Skolnick compares the DVSJA and the 2004-2009 Drug Law Reform Acts. “Examining the implementation of a couple of these laws reveals a theme: the more discretionary a resentencing law, the more individuals are asked to throw themselves on the mercy of decisionmakers (courts and prosecutors who might consent) who often, because of structural and psychological reasons, are disinclined to credit the life experience of defendants that might have led to their entry to the criminal legal system in the first place.” She concludes that, to bring about decarceration, “resentencing reforms should be categorical or presumptive rather than discretionary.”

The other is “Second Look Myopia: State Sentencing Reform and the Local Prosecutorial Response” (114 J of Crim Law & Criminology 827). Examining the cases to date suggests, author Alexandra Harrington says, “that consent from prosecutors is correlated with success in securing resentencing” and “that this consent is unevenly distributed throughout the state.” In some locations, she adds, prosecutors’ offices serve “almost entirely to obstruct the path to relief.”

The highlighted cases “offer practical examples of the consequences of the black-and-white mentality Abbe Smith describes. Cases involving serious crimes of violence, cases with an ‘imperfect victim,’ and cases where the office has already supposedly extended a benefit to a second-look applicant are thoroughly gray. These cases do not present easy questions or short, happy summaries that can be touted in press releases. Yet, they do present compelling reasons for taking a second look. The cases are populated by people who were not given a first chance—plea deal notwithstanding—for whom the road to involvement in the criminal legal system was paved with violence and trauma and lack of support from the very institutions that now condemn them. The cases that sit in this gray area—so often the ones that have lengthy sentences and few other avenues of release from prison—are also the ones that must be reexamined in order to meaningfully decarcerate. Otherwise, we are tinkering at the edges.” [Footnote omitted.]

Professor Harrington is the Director of the University at Buffalo School of Law’s Criminal Justice Advocacy Clinic and Innocence & Justice Project and serves as co-chair of the statewide DVSJA Task Force. NYSDA’s Senior Staff Attorney Stephanie Batcheller is a member of the Task Force and runs NYSDA’s DVSJA Attorney Support Project. Defenders seeking assistance with DVSJA cases can contact Stephanie at sjbatcheller@nysda.org.  

Association News

Need Help With a Case? Our Discovery and Forensic Support Unit and Public Defense Backup Center Are Here to Support You!

Below are a few examples of recent assistance our Discovery and Forensic Support Unit has provided to defenders with digital evidence issues.

• Helped attorney draft subpoenas for cell site location data: Our legal staff explained to the attorney what information could be requested and how to tailor the subpoena for specific record types and wireless carriers and walked through the subpoena process and common problems attorneys run into with phone records.
• Assisted with discovery motions seeking dismissal or sanctions: Our legal team provided a defender with arguments and example language for motions addressing delayed or withheld digital evidence and helped frame the request to show why the material was critical to the defense.
• Explained body-worn camera audit trails and shared discovery motion language: Our legal team clarified what audit trails can reveal about what files exist, who viewed them, and if there were locations or other metadata and helped the attorney understand why they were useful and automatically discoverable,

The Unit can also help you with DNA and toxicology evidence, identifying experts, and other discovery and forensics related issues. Defenders are encouraged to contact the Unit (forensics@nysda.org) for support. And defenders who need assistance with other criminal and family defense issues, please contact our Public Defense Backup Center at info@nysda.org.

NYSDA’s 58th Annual Meeting & Conference will be held at the Saratoga City Center and Saratoga Hilton located in Saratoga Springs from July 27 to 29, 2025. The conference will feature training for criminal and family defenders and defense team members and various networking opportunities. A list of confirmed presenters and topics, including discovery updates and practice tips, advocating for clients with mental health challenges, using constitutional arguments to protect parental rights, and the science of memory in family court sex abuse cases, as well as registration information is available here. Registration is open through July 3rd. We look forward to seeing you in July!

Hotel Reservations: Rooms at the Saratoga Hilton are fully booked, but we do have a small room block reserved at the Holiday Inn Saratoga Springs for $299 per night. Rooms are going fast due to various activities in Saratoga that weekend. We encourage you to use this link to book your room at the Holiday Inn ASAP. Additionally, we have a non-exhaustive list of alternative accommodations options here.

On-Demand CLE Programming

Recordings of select 2024-2025 training events, including sessions from last year’s Annual Meeting and Conference, are now available for NYSDA members. Please note that you will need to sign into your NYSDA account to access the content. Please contact us if you are unsure of your membership status or need assistance with logging in.

If you would like to become a member of our organization, supporting our work and gaining access to the on-demand CLE library, please click here or contact Heather Rapp at hrapp@nysda.org.

Don’t forget to check our Training Calendar to see the list of NYSDA’s upcoming programs.