Starting in 2020, New York enacted sweeping reforms meant to give criminal
defendants more rights. The biggest changes were to bail and discovery.
Bail was changed so that the vast majority defendants would be released
at arraignments. Discovery is the process where the prosecutor (government)
must turn over their evidence to to the defendant before trial. Discovery
was changed so that the prosecutor must turn over more material earlier
than ever.
In the face of criticism that the 2020 reforms went too far, New York ushered
in a few recent "fixes" to reign in these reforms which are
summarized below.
SUMMARY OF NEW AMENDMENTS TO BAIL, DISCOVERY & MORE
I. BAIL
Before 2020, the dangerousness of the criminal defendant was a factor in
deciding whether and how much bail to set. The new bail law still excludes
dangerousness, but expands eligibility for money bail and pre-trial detention.
It takes effect in 90 days.
EXPANSION OF QUALIFYING OFFENSES:
In the past, bail could be set on any offense. After the changes at the
beginning of 2020, bail could only be set on qualifying offenses. The
list of qualifying offenses has recently been "fixed" to make
it broader by including more offenses. The new included offenses are summarized below.
VIOLENT FELONIES:
● BURGLARY 2ND (140.25(2)) “only where the defendant is charged with
entering the living area of the dwelling” (excludes vestibules,
hallways in apt. buildings, and attached garages)
● STRANGULATION 2ND
NON-VIOLENT FELONIES:
● CLASS A-I DRUG FELONIES
● ALL HOMICIDES (manslaughters, negligent homicides)
o And “ANY CRIME THAT THAT IS ALLEGED TO HAVE CAUSED THE DEATH OF
ANOTHER PERSON”
● FAILURE TO REGISTER UNDER SORA (Sex Offender Registration Act) WHERE
DEFENDANT IS CLASSIFIED LEVEL 3
● SEX TRAFFICKING 230.34/230.34-A
● MONEY LAUNDERING IN SUPPORT OF TERRORISM 3RD AND 4TH, 470.22 & 470.21
● PROMOTING AN OBSCENE SEXUAL PERFORMANCE BY A CHILD, 263.15
● AGGRAVATED VEHICULAR ASSAULT, 120.04-a, VEHICULAR ASSAULT 1ST, 120.04
● ASSAULT IN THE 3RD AS HATE CRIME
● ARSON 3RD AS HATE CRIME
● AGGRAVATED ASSAULT UPON A PERSON LESS THAN 11 YEARS OLD (E FELONY)
● CRIMINAL POSSESSION OF A WEAPON ON SCHOOL GROUNDS, 265.01-a (a student
brings a pocket knife to school)
● GRAND LARCENY 1ST DEGREE
● ENTERPRISE CORRUPTION
● MONEY LAUNDERING 1ST
● BAIL JUMPING 1ST AND 2ND
● ESCAPE 1ST AND 2ND
● FOR REPEAT OFFENSES/ARRESTS
o ANY FELONY WHILE ON PROBATION OR POST RELEASE SUPERVISION
o ANY FELONY IF QUALIFIES FOR LIFE SENTENCE AS A DISCRETIONARY PERSISTENT
OFFENDER UNDER PENAL LAW 70.10
o FELONY WHERE “HARM” OCCURRED TO AN IDENTIFIABLE PERSON OR
PROPERTY WHILE OUT ON A SEPARATE FELONY OR CLASS A MISDEMEANOR WHERE HARM
OCCURRED TO AN IDENTIFIABLE PERSON OR PROPERTY. PROSECUTORS MUST SHOW
“REASONABLE CAUSE” THAT THE DEFENDANT COMMITTED BOTH OFFENSES.
CLASS A MISDEMEANORS
● DOMESTIC VIOLENCE: OBSTRUCTION OF BREATHING, STRANGULATION 2ND, UNLAWFUL
IMPRISONMENT 1ST
● ENDANGERING WELFARE OF A CHILD – ONLY IF A LEVEL 3 (highest) SEX OFFENDER
● BAIL JUMPING 3RD
● ESCAPE 3RD
● FOR REPEAT ARRESTS
o ANY CLASS A MISDEMEANOR WHILE ON PROBATION OR POST-RELEASE SUPERVISION
o ANY CLASS A MISDEMEANOR WHERE HARM OCCURS TO AN IDENTIFIABLE PERSON OR
PROPERTY (ASSAULT 3, CRIMINAL MISCHIEF) WHILE OUT ON A SEPARATE FELONY
OR CLASS A MISDEMEANOR WHERE HARM OCCURRED TO AN IDENTIFIABLE PERSON OR
PROPERTY. PROSECUTORS MUST SHOW “REASONABLE CAUSE” THAT THE
DEFENDANT COMMITTED BOTH OFFENSES.
The Judge can set more non-monetary conditions of release.
● SURRENDERING PASSPORT
● MANDATORY PROGRAMS (counseling, treatment, intimate partner violence,
placement in hospital under)
● REFRAIN FROM “ASSOCIATING” WITH PEOPLE CONNECTED TO THE ALLEGED
CRIME (not just victims and eyewitnesses, also co-defendants)
● MAKE DILIGENT EFFORTS TO MAINTAIN EMPLOYMENT HOUSING OR ENROLLMENT IN
SCHOOL/EDUCATIONAL PROGRAMMING
● OBEY AN ORDER OF PROTECTION
● CONDITIONS SET BY COURT TO ADDRESSED TO SAFETY OF VICTIM OF FAMILY OFFENSE,
INCLUDING REASONABLE CONDITIONS REQUESTED BY OR BEHALF OF VICTIM
● ELECTRONIC MONITORING - MUNICIPALITIES CAN CONTRACT WITH PRIVATE COMPANIES
BUT THE COMPANIES CANNOT INTERACT WITH DEFENDANT.
II. DISCOVERY
TIMELINES EXPANDED:
- IF IN CUSTODY while case is pending – 20 days
- IF NOT - 35 days
- Under automatic 30-day extension: “VOLUMINOUS” clarified and
may include body worn camera, video surveillance and dashboard cameras
The prosecutor has the right to not disclose certain things including
- Confidential informants
- Now, the prosecutor doesn't need to disclose the identity of 911 callers
(under certain circumstances), victims and witnesses in many sex offenses
• The prosecutor doesn't have to turn over certain scientific
results until the analysis has been completed
CERTIFICATE OF COMPLIANCE and SPEEDY TRIAL:
• Prosecutor can file a certificate where certain material is lost
or destroyed
• Court can find prosecution ready for trial if non-disclosure resulted
from lost, destroyed or “otherwise unavailable” material
III. OTHER CHANGES
Subway offender ban
● Gives the court the discretion to ban a person from using or entering
MTA’s services and facilities for up to three years for the following offenses:
○ A crime involving assault or attempted assault against MTA personnel;
○ A person convicted of a crime involving sexual assault against a customer,
passenger or MTA personnel
● Court can suspend, modify or cancel in the interest of justice if a person
depends on the MTA for necessary trips (medical, legal, school, employment)
Change in terrorism laws
● Terrorism offenses added to list of hate crimes
● Two new terrorism offenses created:
○ Domestic act of terrorism motivated by hate in the first degree
■ A-I felony
■ Mandatory sentence of life without parole
○ Domestic act of terrorism motivated by hate in the second degree
■ A-I felony