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Criminal procedure changes coming, with mixed reviews

Criminal procedure changes coming, with mixed reviews


Major changes are coming to the way criminal cases are prosecuted in New York starting Jan. 1, and only those on the defense side of the aisle are happy about it.

Defense lawyers say the new procedures were long overdue, and will remove a “blindfold” that has long hindered the accused from adequately defending themselves.

The changes will require that evidence be turned over to defense counsel months sooner than required now, with prosecutors generally mandated to turn over all statements, videos and forensic evidence within 15 days of charges being filed.

“Trial by ambush will end,” said Washington County Public Defender Michael Mercure. “These are transformative reforms that will help ensure fairness and transparency in our criminal justice system.”

Police and prosecutors are concerned because they believe the change will result in fewer patrols on the road, endanger witnesses and victims, increase costs and bog down cases.

“It’s going to be overwhelming. I don’t know how we’re going to do it,” Hudson Falls Police Chief Scott Gillis said. “Small departments like ours just aren’t going to be about to handle this.”

Half baked

It’s not just the substance of the changes that irks critics.

They say the way Gov. Andrew Cuomo pushed them through in a bill passed with the state budget, with no debate or input from stakeholders, was unfair, and threatens to undermine a criminal justice system that has created significant drops in crime over the past couple of decades.

Cuomo himself has bragged that, in 2017, reported crime in New York reached an all-time low since statewide reporting began in 1975.

The president of the District Attorney’s Association of New York, Albany County District Attorney David Soares — a Democrat like Cuomo — has called the changes “half-baked policy.”

“A handful of lawmakers with limited knowledge of the criminal justice system, behind closed doors, came to an agreement that will place unnecessary burdens on the workings of our criminal justice system and actually slow down the wheels of justice,” Soares said in a prepared statement last month.

Washington County District Attorney Tony Jordan echoed those comments, saying that New York’s criminal justice system needed to make changes to its evidence “discovery” process, and most prosecutors offices have already done more than statutes require to turn over evidence quickly. No defendant in Washington County goes to trial without knowing the evidence that will confront them, he said.

When learning that Cuomo planned to push for discovery reforms this year, law enforcement organizations tried to have their voices heard, to no avail, Jordan said.

“This was done with no input, no hearings,” he said. “What this budget bill did was take 50 years of jurisprudence and throw it out the window.”

The changes

The sweeping changes that were passed as part of the 2019-20 state budget will:

* Require prosecutors to turn over all of their evidence within 15 days of a charge being filed. As the law stands now, prosecutors can wait until just before trial. Extensions of up to a month can be granted if evidence, such as forensic reports or material subpoenaed from outside sources, is not yet available.

* End cash bail for most low-level criminal charges, including many felonies. Defense lawyers say this will allow the accused to better defend themselves, but police believe it will result in far more people failing to show up for court.

* Mandate prosecutors disclose all of a defendant’s alleged statements to law enforcement before grand jury proceedings, instead of at arraignment on an indictment.

* Allow portions of grand jury transcripts to be turned over to defense counsel, when currently they cannot be disclosed.

* Require that prosecutors turn over names and contact information for people who prosecutors know “may have information relevant to any charged offense or potential defense.”

* Require that all so-called “Brady material” that is favorable to the defense be turned over within 15 days.

* Mandate that all records, certifications and calibrations of devices used in breath testing in drunken driving cases for the 6 months prior to an arrest be turned over to the defense within 15 days.

* Require that police “expeditiously notify” prosecutors of electronic evidence like videos and audio, or risk “sanctions” if they don’t.

* End driver’s license suspensions for those convicted of non-driving drug crimes.

Locally, defense lawyers have wholeheartedly endorsed the new procedures, saying that they even what had been a one-sided playing field in court.

“Trials are supposed to be a truth-seeking process, and this goal is undermined when one side is legally allowed to withhold much of their evidence during the majority of the case,” said Queensbury defense lawyer Martin McGuinness. “The new legislation automatically gives defendants much greater access to the proof of their alleged crimes, and will ensure a much more fair adversarial process.”

McGuinness acknowledged that many prosecutors’ offices in the region recognized the system was unfair, so they “have discovery policies that go beyond what the current law requires.”

Tucker Stanclift, a Queensbury defense lawyer who is head of the criminal justice section of the New York State Bar Association, said New York has been behind most other states in terms of what prosecutors are required to share in a timely manner.

Stanclift said he believes the changes will help resolve cases, not slow them down, as defendants will know more quickly what they are up against in terms of evidence.

“I understand there are financial concerns, but we needed to fix it, and it’s going to cost money,” he said.

McGuinness said there will be mechanisms in the law that allow courts to protect witnesses.

“Legitimate concerns about witness safety will be addressed by judges on a case by case basis through the use of protective orders, which are authorized under the legislation,” he said.

Briefed, and worried

Jordan convened a meeting late last month of police leaders and his staff in Washington County to educate them about the changes coming to criminal prosecutions in New York, starting Jan. 1.

Gillis was among those in attendance, and he said he spent much of the meeting wondering how his 13-officer department and others like it will comply with the changes.

Officers are going to spend their shifts doing paperwork or preparing electronic recordings for distribution that ordinarily wouldn’t be done until and unless a case was headed to pretrial motions and trial. Trials are rare, as the vast majority of cases are resolved with guilty pleas or dismissals, so in most cases, the paperwork that was put off never had to be done.

Storage of videos and other electronic evidence will have to be bulked up, an expensive proposition when dealing with massive video files.

“The more paperwork they are doing in the station, the more they are off the street,” he said of local police officers.

Washington County Sheriff Jeff Murphy said his office will have to add at least one more records clerk to handle the clerical duties stemming from the new evidence requirements.

The workload that the law will require for the state Forensic Identification Center, where DNA, blood tests and other forensic evidence are processed, was a particular concern for local law enforcement.

The lab is already burdened by increasing caseloads, with DNA tests and blood toxicology currently taking months to process. To expedite them so that results are available within a little more than two weeks of an arrest will require major changes to current practices, or an increase in staff.

A spokesman for the State Police would not say how the agency will deal with the changes.

“State Police is reviewing the legislation, and will be prepared to implement any necessary changes when the new laws take effect,” agency spokesman Beau Duffy wrote in an email.

Jordan said the changes will also create a new layer of litigation in criminal cases, as sides spar over the reasons why evidence was not turned over on time.

Murphy said the new bail law and evidence laws do nothing to make New York safer, but only aid criminals at a time when metrics show the criminal justice system is functioning well.

“It’s another piece of legislation that benefits criminals and makes it more difficult for police and prosecutors to do their jobs,” he said. “Some of this is going to be impossible for us to do.”


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reporter - crimes & courts, public safety and Warren County government

Don Lehman covers crime, Warren County government and the outdoors for The Post-Star. His work can be found on Twitter @PS_CrimeCourts and on

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