Bail and Discovery Reform: The Third Round

Amid the intense debate over bail and discovery reform in the legislative session that has just ended, the Legislature enacted a third iteration of changes to the bail and discovery statutes. Although certain political leaders called for substantial revisions of these laws, the changes were not transformative but do present a mixed bag for prosecutors and defense counsel. The changes were effective on May 9th (L. 2022, Ch. 56).

There were three general categories of revisions. First, in the area of bail, the Legislature expanded the number of bail eligible offenses, added new factors that judges must consider when setting bail, added a mental health assessment as a non-monetary condition of release, and added three circumstances in which a desk appearance ticket can be denied to a defendant.

Second, in the area of discovery, the Legislature enacted five changes, all of which will have an impact on both the obligations of prosecutors and defense counsel. Finally legislators lowered the threshold for charging certain firearm offenses.

With respect to changes in the bail statutes, the Legislature added several crimes to the current list of bail eligible offenses. The most significant change is an amendment to CPL §510.10(4)(t), which had permitted a judge to set bail when a defendant was arrested for a crime involving “harm to an identifiable person or property,” while the defendant was released on an earlier crime involving “harm to an identifiable person or property” (hereinafter, a “harm” crime).

The new provision addresses legislative concerns that some individuals who are arrested and released on larceny or criminal mischief charges are then rearrested on the same type of charges and released, again. Accordingly, the amendment defines “harm” as including, but not limited, to theft or damage to property.

Second, a judge can now set bail when an individual is issued a desk appearance ticket (DAT) for a “harm” crime and then rearrested on a second “harm” crime before being arraigned on the DAT. A judge can set bail on the later crime.

In addition, the crime of possession of a firearm (PL §265.01-b, a class E felony) is now treated as a “harm” crime for purposes of setting bail. Accordingly, if an individual is given a DAT for PL §265.01-b and then rearrested for a larceny before being arraigned on the DAT, a judge can set bail on the larceny charge. Similarly, if a person is given a DAT for a “harm” crime and then rearrested for PL §265.01-b before being arraigned on the DAT, a judge can set bail on the weapons charge.

When a defendant is being arraigned on a second “harm” crime, a judge can still release a defendant without bail depending on the presence or absence of additional factors. A judge may set bail if either a theft is not negligible or it was in furtherance of other criminal activity. If neither factor is present, however, the judge must release the defendant without bail. Finally, if a court has the discretion to set bail, it still must first determine whether there was reasonable cause to believe that the defendant committed the crime. The statute is silent on whether the prosecutor can satisfy that burden when a complaint has not yet been converted into an information.

The Legislature also added two non-violent crimes to the current list of bail eligible crimes: criminal sale of a firearm to a minor (PL §265.16, a class C felony), and criminal possession of a defaced weapon (PL §265.02(3), a class D felony).

Under the prior bail reform statute, the Legislature expanded the issuance of desk appearance tickets but also created a number of exceptions under which a police officer could still make a custodial arrest. In the latest version, the Legislature added three new circumstances in which a police officer is not required to issue a DAT: (1) where an individual, who is 18 years or older, is charged with criminal possession of a weapon on school grounds (PL §265.01-a, a class E felony); (2) where an individual, who is 18 years of older, is charged with a hate crime pursuant to PL §485.05; and (3) where an individual is charged with a qualifying offense involving harm to an identifiable person or property under CPL §510.40(4)(t), as amended above.

In the prior reform legislation, the Legislature amended the factors that a court must consider when determining whether monetary or non-monetary bail conditions should be set. In this year’s legislation, three additional factors were added. Two of these factors were previously considered only when a charge involved a member or members of the same family of household: violation of an order of protection and a defendant’s history of use or possession of a firearm. Those two factors must now be considered when an individual is arrested for any qualifying offense. And judges must now also consider whether the charge is alleged to have caused serious harm to an individual or group of individuals.

The final part of the new bail reform package adds two non-monetary conditions of release, which address concerns a court may have about the mental health of a defendant. Last year, the Legislature added a condition by which a court may, where applicable, direct a defendant to be removed to a hospital pursuant to Mental Hygiene Law §9.43 that provides for at least a 72-hour period of emergency hospitalization for immediate observation, care and treatment (CPL §500.10 (3-a)(f)).

This year two additional conditions were added which expand upon the current section and provide more explicit directions to judges who wish to address any concerns about a defendant’s mental health. The conditions provide for both a voluntary and involuntary psychiatric assessment of a defendant (CPL §500.10 (3-c)).

If a judge were to find by clear and convincing evidence that a defendant is mentally ill such that, if left unattended, his or her conduct may result in harm to himself or herself or others, a court may order, as a condition of release that the defendant seek a voluntary psychiatric assessment under §9.13 of the Mental Hygiene Law. This condition can only be imposed if the defendant consents and he or she has a recently documented history of mental illness or psychiatric hospitalization.

A court can also order an involuntary psychiatric assessment at a local hospital pursuant to §9.43 Mental Hygiene Law. This can be done if the court finds, by clear and convincing evidence that a person is mentally ill such that, if left unattended, his or her conduct may result in immediate serious harm to himself, herself or others, and if the defendant is acting in such a manner which, in a person who is not mentally ill, would be deemed disorderly conduct which is likely to result in immediate serious harm to himself, herself or others.

If an involuntary assessment is ordered, to ensure that the defendant arrives at the hospital, the court may order that a police officer, sheriff or peace officer transport the defendant and an ambulance service may be utilized.

Once the defendant is at the hospital, a defendant must be examined within 48 hours and may not be held more than 15 days unless a determination is made that the defendant should be admitted. Once the defendant is admitted, a process is commenced by which a defendant is entitled to a hearing to determine whether he or she should be retained for further treatment. The statute places a greater responsibility on pre-trial service agencies to provide the court with the status of a defendant’s psychiatric assessment and an update on his placement, treatment or discharge.

In addition to the above bail reform changes, the Legislature lowered the threshold for charging two violent firearm offenses involving the sale of weapons. Criminal sale of a firearm in the first degree is now committed when an individual sells three guns in a period of one year; previously, the threshold was ten weapons (PL §265.13 a class B felony). Criminal sale of a firearm in the second degree is now committed when an individual sells two firearms in a period of one year; previously the threshold was five weapons (PL §265.12, a class C felony).

In addition, the possession of three, or more, firearms is now presumptive evidence that a person possessed the firearms with the intent to sell the weapons; previously the threshold was five weapons (PL §265.15(6)).

The Legislature also enacted a number of minor changes in the area of discovery, in an effort to improve the efficiency of discovery practice. One amendment clarifies the standard to evaluate supplemental certificates of compliance. When the discovery statute was revised in 2019, it provided for a supplemental certificate, but it did not provide much guidance on its usage and, since that time, prosecutors have filed them infrequently.

The amendment clarifies that when a supplemental certificate is filed, the prosecutor is required to explain the reason for the delayed disclosure of materials so that the court may determine whether the delayed disclosure affects the propriety of the original certificate (CPL §245.50 (1-a)). Thus, a prosecutor must demonstrate either that the belatedly disclosed material did not exist at the time of the filing of the original certificate, or it existed but was not in the possession, custody or control of the prosecutor despite diligent efforts to learn of and obtain the items.

The filing of a supplemental certificate will not negate the validity of the original certificate if it was filed by the prosecutor in good faith, and after exercising due diligence, or if the additional discovery did not exist at the time the original certificate was filed. Thus, if belatedly disclosed material was gathered by the police, it would be difficult to argue that the prosecutor exercised due diligence in filing the original certificate, as items in the possession of the police are deemed in possession of the prosecutor.

Thus courts will now have a factual record upon which to assess the reasons for the belated disclosure of material, which will enable them to rule on the propriety of the initial certificate of compliance.

A second change in the discovery process addresses the procedure by which a party can challenge or question a certificate of compliance or a supplemental certificate of compliance. Last year the Legislature enacted CPL §245.50(4), which was ambiguous in that it permitted “questions” related to a certificate to be raised in a motion. The amendment adds clarifying language although it inadvertently did not delete the above existing language.

Under the amendment, either party (although it will more frequently be defense counsel) has an obligation to raise known potential defects in a certificate “as soon as practicable” (CPL §245.50(b)). The defect that will normally be raised is that one or more items of discovery had not been disclosed. This section was added to address concerns by prosecutors that some defense counsel had engaged in gamesmanship, intentionally waited too long to notify them about material that was missing, and then challenged the certificate for the first time in a speedy trial motion. The requirement that counsel act quickly will actually be to their advantage; should a prosecutor ignore such timely notice it could support a later argument that the prosecutor was not “diligent” in obtaining the missing item(s). There is no time limit, however, by which defense counsel must notify a prosecutor under this section.

It is expected that, by imposing this obligation on defense counsel, any disputes over purportedly missing information can be resolved through discussions with the prosecutor. In the event the notification process does not resolve a dispute, defense counsel can make a motion to challenge the sufficiency of a certificate or supplemental certificate and must do so, “as soon as practicable.”

While courts have always had the authority to dismiss a charge as a sanction for a discovery violation, the People have never had the right to appeal that order. An amendment now provides prosecutors with a right to appeal (CPL §450.20(12)). In addition, where a judge dismisses only some of the charges against a defendant based upon a discovery violation, the prosecutor will now have a right to an interlocutory appeal since the remaining charges cannot be tried until the appeal is decided. A defendant is also now permitted to apply for bail pending this new interlocutory appeal (CPL §530.50(3)).

Lastly, the amendment clarifies that this type of dismissal is a discretionary and drastic remedy and must be “proportionate to the prejudice suffered by the party entitled to disclosure” (CPL §245.80(1)(a)). This codifies case law (see People v. Kelly, 62 N.Y.2d 515 (1984)). One must distinguish this discretionary type of dismissal, however, from a dismissal under CPL §30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance.

Finally, a new amendment relieves prosecutors of automatic discovery obligations in three types of matters: (1) a simplified information charging only traffic infractions under the Vehicle and Traffic Law; (2) an information that charges only petty offenses, as defined by the municipal code of a village, town, city or county, that do not authorize a jail sentence; and (3) any matter where a defendant stands charged under a local ordinance which carries no jail penalty nor any fine. In these matters the court must advise the defendant, at the first appearance, that he can file a motion for discovery.

Barry Kamins, a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis 2022), is a former New York Supreme Court Judge.