City Bar Opposes Rollbacks to Criminal Discovery Reform in New York State

The New York City Bar Association has released a report opposing proposed rollbacks to Criminal Procedure Law (“CPL”) 245, also known as Kalief’s Law, which details the procedures for the exchange of criminal discovery in New York State. The report argues that Governor Hochul’s proposed changes would “completely undo the progress made through CPL 245’s passage.”

Prior to the passage of CPL 245, which went into effect on January 1, 2020, New York provided the accused with less access to discovery than nearly any other state in the country. Under the previous law, informally known as the “blindfold law,” defendants often had to make decisions about plea offers without knowing what evidence prosecutors had against them – including evidence that could potentially demonstrate their innocence.

The City Bar’s analysis challenges claims that discovery reform has led to widespread dismissals of serious felony cases on “technicalities.” The report points out that while dismissals for speedy trial violations have increased overall, the data shows this increase primarily affects misdemeanors and other low-level offenses – not serious felonies.

The City Bar identifies four key problems with Governor Hochul’s proposed revisions:

1. They would allow prosecutors to certify compliance with discovery requirements after disclosing only documents in their “actual possession,” excluding crucial evidence held by police or witnesses.
2. They would narrow the standard for disclosure from evidence “related to” a case to evidence “relevant to the subject matter of the charges” – a change that would significantly narrow the standard for discovery and lead to a significant increase in litigation over what is considered “relevant.” This relevance standard was considered and roundly rejected by legislators in implementing the original discovery reforms in 2019.
3. They essentially would eliminate the only current enforcement mechanism to ensure timely disclosure by requiring defendants to show “irremediable prejudice” before any consequences could be imposed for discovery violations.
4. They would impose an unrealistic 35-day deadline for defense counsel to object to improper certificates of compliance, ignoring “the realities of state criminal practice, where public defenders – who represent the majority of people prosecuted in New York – often carry heavy caseloads and have more limited resources than prosecutors.”

Rather than gutting the law, the City Bar urges lawmakers to properly fund its implementation. The report acknowledges that funding for discovery reform was initially lacking, creating a “mismatch between modernized statutory obligations and a lack of new resources.”

“Ongoing and expanded funding for innovative discovery infrastructure and support services will be the key to ensuring the success of discovery reform in New York,” the report concludes. “The fact that these systems are currently underdeveloped is no reason to revert to a constitutionally deficient environment in which the accused are forced to make life-altering decisions while lacking the information they need to be able to make those decisions.”

The City Bar “strongly supports the criminal discovery reform enacted through CPL 245, which helps to ensure that the accused’s constitutional right to a fair trial is fulfilled,” and urges the legislature to reject the proposed rollbacks, particularly given the rushed timeline through the state’s budget process. “Instead,” the report states, “we encourage additional legislation to adequately fund the technological and staffing infrastructure that is necessary for the parties to effectively comply with their obligations under the law.”

Read the report here: https://bit.ly/3FM6ss8

About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 23,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org