In the midst of an historic pandemic, the Legislature enacted changes to sweeping legislation it had enacted last year: limitations on monetary bail; expansion of discovery in criminal cases; and the enhancement of the right to a statutory speedy trial. After those changes became effective on January 1st of this year, advocates and prosecutors waged a fierce battle over amending last year’s legislation and both sides came away with some measure of achievement. The amendment to the bail statute is effective July 2nd while the amendment to the discovery legislation became effective on May 3rd. L. 2020, Ch. 56.
This column will review the most significant aspects of the amendment and the reader is advised to read it in full in order to appreciate its scope and breadth.
With respect to bail, the Legislature neither eliminated cash bail altogether nor added a provision authorizing judges to assess a defendant’s “dangerousness.” It did, however, expand the number of “qualifying offenses” for which monetary bail may be set and it expanded the number of non-monetary conditions of release that judges can impose.
The Legislature did not add any additional violent felony crimes to the list of qualifying offenses although it designated Strangulation in the Second Degree—already bail-eligible as a violent felony under the original legislation—explicitly bail-eligible if committed as a domestic violence crime.
In the original legislation, Burglary in the Second Degree, a violent felony, was classified as a non-qualifying offense when a defendant was charged under subsection (2), i.e., entering a “dwelling” with the intent to commit a crime. The amendment makes clear that the crime becomes a qualifying offense when an individual enters the “living area of the dwelling.” CPL 510.10. The term “living area” is not defined in the Penal Law and entering the “living area” is not an element of the crime. As a result, prosecutors will need to inform the court at arraignments as to any facts that support a request for bail.
It would appear that in multiple-unit buildings, bail cannot be set when a defendant enters a non-living area such as a vestibule, roof, or lobby. In a one-family house, a porch or basement may constitute a “non-living area.” In People v. McCray, 23 N.Y.3d 621 (2014), the court held that a burglary committed in the non-residential part of a building used partly for residential purposes, should not be treated as the burglary of a dwelling.
The Legislature also added approximately 20 non-violent felonies to the list of qualifying offenses. A number of prosecutors and law enforcement officials had publicly expressed criticism that many of these felonies were not included in the original legislation as bail-eligible. Under the amendment, for example, the following non-violent felonies are bail-eligible: all A-1 drug felonies; certain financial crimes (Grand Larceny in the First Degree and certain money laundering charges); all subsections of Sex Trafficking that were not bail-eligible under the original legislation; and certain hate crimes (Assault in the Third Degree and Arson in the Third Degree if committed as a hate crime).
In addition, bail can now be set for “any crime that is alleged to have caused the death of another person” CPL 510.10[j] (emphasis added). This would include all offenses under Article 125 of the Penal Law, a number of which are non-violent offenses, e.g., Criminally Negligent Homicide, Manslaughter, etc. Cf. Leaving the Scene of an Incident Without Reporting, which results in death, would not be a bail-eligible offense (VTL 600 [c]).
The amendment also permits judges to set bail on certain repeat offenders. For example, bail can now be set for an individual who is charged with a felony offense while serving a sentence of probation or while released to post release supervision. CPL 510.10[r]. In addition, any felony becomes bail-eligible when the defendant “qualifies for sentencing on such charge as a persistent felony offender.” CPL 510.10[s].
In addition, bail can now be set when an individual is charged with two sequential crimes (either a felony or class A misdemeanor), “involving harm to an identifiable person or property.” CPL 510.40[f]. Before a judge can set bail, however, the prosecutor must establish probable cause to believe that the defendant committed both the instant and underlying crimes.
Courts will need to define “harm”, as the statute does not provide any guidance. It remains to be seen whether courts will limit the definition to physical harm, or whether they will apply a more expansive interpretation and include financial or emotional harm.
Certain misdemeanors have been added to the list of qualifying offenses and, not surprisingly, they relate to a defendant’s failure to appear in court, e.g., Escape from Custody; and Bail Jumping. While these misdemeanors and others specified in the amendment are bail-eligible, none are subject to remand. Defendants charged with qualifying offenses that are felonies, however, are subject to bail or remand.
Finally, although an offense may not be bail-eligible, once a defendant pleads guilty to that offense or is found guilty of that offense after trial, a court can now set bail or remand the defendant between the conviction and sentencing date. CPL 530.45[2-a].
The Legislature also expanded the number of non-monetary conditions a judge can impose when releasing a defendant. The amendment makes clear that this is not an exclusive list and a defendant shall not be required to pay for any part of the cost of any non-monetary condition, e.g., electronic monitoring. CPL 500.10 [3-a].
The new conditions are broad in scope. For example, as a condition of release a defendant may have to agree not to associate with individuals “connected [to] the instant charge” including victims, witnesses or co-defendants.” CPL 500.10 [3-a][e]. A court can also now require a defendant to attend mandatory treatment programs as determined by a pretrial services agency, e.g., counseling, drug treatment and violence intervention programs.
In addition, a court may, where applicable, direct a defendant to be removed to a hospital pursuant to Mental Hygiene Law 9.43 which provides for at least a 72-hour period of emergency hospitalization for immediate observation, care, and treatment. Although this is listed as a new condition of release, some courts had been imposing this condition prior to the legislation. As another condition of release, a defendant can be required to make “diligent” efforts to maintain employment, enrollment in school or educational programming. Finally, a court can require, as a condition of release, that the defendant obey an order of protection issued by the court. CPL 500.10 [3-a].
In the original legislation, electronic monitoring was authorized, under certain circumstances, as a condition of release. The amendment clarifies this condition in two respects. First, a defendant cannot be required to pay for the monitoring. Second, counties and municipalities may contract with private companies to supply the monitoring devices but only employees of the municipalities or state, and not the companies, can have any interaction with a defendant for the purpose of monitoring. CPL 500.10 [3-a]; CPL 510.40 [c].
The Legislature also responded to certain concerns generated by the initial legislation. For example, the original legislation provided that a Desk Appearance Ticket must be returnable no later than 20 days from the date it is issued. The amendment provides that the 20-day period may be extended to the “next scheduled session” of the court if such session is not within 20 days of the issuance date. CPL 150.40.
In addition, in the original legislation, courts were given the responsibility of notifying a defendant of any future court appearance by text message, telephone call, electronically or first class mail and the defendant had the option of selecting the method of notification. Under the amendment, a defendant forfeits such notice if he intentionally declines to provide the information necessary for him to receive it. In addition, a failure by the court to provide notice of a scheduled court appearance shall not constitute grounds or authorization for a defendant to fail to appear in court. CPL 510.43.
Finally, the Legislature expanded the availability for release, pending sentence or appeal, for defendants who are not convicted of a qualifying offense. Courts continue to have the authority to set bail pending sentence or appeal (with certain existing exceptions) when a defendant is convicted of a qualifying offense. When a defendant is convicted of a non-qualifying offense, a court now has the authority to set bail, or in the alternative, release the defendant in his own recognizance or set non-monetary conditions for release. CPL 530.45, 530.50.
The Legislature also amended the discovery statute and those changes were effective on May 3rd. One amendment eases the timeline that was imposed on prosecutors in the original legislation; under that provision, a prosecutor had 15 calendar days from the defendant’s arraignment date to provide discovery (with some exceptions). Under the amendment, if a defendant is in custody, the prosecution has 20 calendar days to perform its initial discovery obligations. If a defendant is not in custody, the deadline is 35 calendar days. If a defendant is initially in custody but released before the 20-day deadline, does the prosecutor then get 35 days to provide discovery? The statute is silent on that point.
The original legislation gave prosecutors an additional, automatic 30 days, without the need for a motion, to provide discovery when the discoverable materials are “exceptionally voluminous.” The amendment attempts to clarify the definition of “exceptionally voluminous” by giving examples of material that may fit that definition: video footage from body worn cameras, surveillance cameras or dashboard cameras. In addition, it also permits prosecutors to extend the 30-day period by making a motion pursuant to CPL 245.70).
The amendment expands the right of the prosecution to withhold certain pieces of information as part of its initial discovery obligation, without having to obtain a protective order. Thus, in addition to withholding the identity of a confidential informant, a prosecutor can now withhold the identity of a 911 caller, a victim or witness in sex offenses and sex trafficking cases and a victim or witness of a crime where the defendant has a substantial affiliation with a “criminal enterprise” as that term is defined under the Enterprise Corruption Act. CPL 245.20.
The prosecutor must notify the defense that information is being withhold under this section and the defense can then move for disclosure of this information. CPL 245.10. In ruling on the motion, a court can also order that a transcript of the 911 recording be disclosed in lieu of the recording itself. CPL 245.70. Although the prosecution can withhold the identify of a 911 caller, if he intends to call such person as a witness at hearing or trial, the prosecution must disclose the name and contact information no later than 15 days before a hearing or trial. In addition, although the prosecutor can now withhold the identity of a 911 caller, the defense would still be entitled to any statements of potential witnesses under CPL 240.20[e]). Thus, an argument can be made that the statement of a 911 caller must still be turned over provided the statement is redacted to prevent the disclosure of the caller’s identity.
The original legislation addressed the possibility that a defendant may wish to waive discovery; the amendment seeks to clarify that issue. Prior to accepting a waiver, which must be signed by counsel, a court must now inquire of the defendant, on the record, to ensure that the defendant understands his or her right to discovery. On the other hand, a court cannot require, as a condition of a plea, that counsel advise his or her client about the right to waive discovery. Finally, when a conviction is vacated on agreement between the parties pursuant to CPL 440.10, a waiver of discovery can be a condition of a new guilty plea. CPL 245.75.
The procedure for a protective order has been changed. Under the original legislation, unless a defendant consents to the prosecution’s request for a protective order, a court must conduct a hearing within three business days to determine whether good cause has been shown. Under the amendment, a prosecutor can now request that certain hearings be conducted in camera and outside the presence of the defendant. CPL 245.70.
Thus, when a defendant is charged with a violent felony or any class A felony (other than a class A drug felony), a court can conduct a hearing as outlined above if the prosecutor establishes “good cause.” The statute is silent on a number of points. Can defense counsel be present at the hearing? In determining “good cause”, what factors must a court consider?
As the initial legislation made clear, the prosecution’s burden to comply with discovery and to file a certificate of compliance, is driven by the sanctions under the speedy trial statute. Thus, certain amendments to the discovery statute will have an impact on the prosecution’s speedy trial obligations.
For example, the trial readiness standard has been lessened to some extent. Under the original legislation, a prosecutor can be deemed ready for trial even if he has not filed a certificate of compliance if a court finds that “exceptional circumstances” exist. Under the amendment, a court need only find “special circumstances” although the difference between “exceptional” and “special” seems ambiguous. CPL 245.50.
The amendment makes clear that any challenges to a certificate of compliance must be “addressed by a motion.” CPL 245.50. The statute is silent on whether the motion must be in writing. If the motion is made orally, it would seem wise, for appellate purposes, to incorporate the grounds for the oral motion in any written motion made pursuant to CPL 30.30. CPL 245.50.
In addition, a prosecutor will now be able to file a certificate of compliance when discoverable material is lost or destroyed provided that (1) there are diligent and good faith efforts to locate the material; and (2) the efforts to locate the material are reasonable under the circumstances. CPL 245.50.
It seems clear that the battle over bail and discovery reform has only begun. This year’s legislation was the first of what will undoubtedly be an annual skirmish between advocates, prosecutors, and law enforcement officials over whether, and to what extent, the initial groundbreaking legislation should be amended.
Barry Kamins, a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis 2020), is a former New York Supreme Court Judge.