Here's how the new changes to the state 'discovery' law would work

ALBANY — Gov. Kathy Hochul and district attorneys got the partial rollback they wanted on a key element of courtroom trials, known as “criminal discovery.”

Now, defense attorneys are bracing for the impacts.

The rollback, included as part of an overall state budget lawmakers approved Thursday night, governs what evidence prosecutors must share with defendants and how soon they share it.

In essence, Hochul and the State Legislature are easing requirements on prosecutors in response to their complaints that a landmark 2019 discovery reform was too burdensome and triggered too many case dismissals.

State data shows the overwhelming number of dismissals related to the 2019 law occurred in the five boroughs of New York City, with much smaller impacts elsewhere. So it was no surprise when Hochul held a victory lap press conference with the five city district attorneys.

“I vowed to not sign off on a state budget unless it included common-sense discovery reform. And guess what? We got it done,” Hochul said at the event in Manhattan.

Probably obscured from most of the public, discovery is a key component of the criminal trial system. For years, defense attorneys had said prosecutors too often waited until the eve of a trial to turn over materials — called “trial by ambush” — which handicapped a defendant’s ability to decide whether to plea bargain or go to trial.

Prosecutors must certify they have turned over all the materials and are ready for trial. If a defense attorney shows that’s not true, prosecutors must correct the error — and, if the time it takes to do so means violating a person’s right to a speedy trial, a judge might dismiss the case or the prosecutor himself will drop the charges.

History

Case dismissals skyrocketed after the COVID-19 pandemic, but the majority weren’t attributed to speedy trial laws, according to data from the state Office of Court Administration. And the regional breakdown is striking.

In 2024, 27% of all case dismissals in New York City were attributed to the speedy trial law, the data shows. In the rest of the state? Less than 2%.

The 2019 law was tested at New York’s highest court. In 2023, the Court of Appeals upheld the requirements embedded in the discovery law in People v. Bay, saying prosecutors need not be perfect but must demonstrate due diligence. In that case, a prosecutor had said a 911 call did not exist only to later admit the opposite.

In this year’s negotiations, prosecutors and Hochul pushed for judges to be able to weigh whether discovery failures significantly “harmed” a person's  ability to mount a defense.

New changes

In a compromise — largely negotiated by Assembly Speaker Carl Heastie (D-Bronx) — Hochul, the State Assembly and Senate agreed to set a template for the court:

When the defense makes a motion to dismiss a case based on discovery errors, a judge will weigh whether prosecutors exercised due diligence to produce all the evidence, whether they acted in good faith and how significantly the harm of the error cripples a person’s defense.

Also, Staten Island District Attorney Michael McMahon, head of the statewide district attorneys’ association, said the new law will compel them to turn over all the evidence “relevant to the case” as opposed to “relevant to the charges of the case.”

“It limits, to some degree, what we have to turn over,” McMahon said.

And another important change: Defense attorneys must file challenges within 35 days of a prosecutor certifying he has turned over all the evidence. Hochul and prosecutors claimed too often defense attorneys waited until late in the process to file challenges in hopes of triggering speedy-trial dismissals. State data doesn’t document how often that happened.

Prosecutors applauded the amendments and called them modest.

“The (2019) changes were the right step forward, but they have led to unintended consequences with thousands of cases statewide dismissed for technical violations of the discovery statute,” Queens DA Melinda Katz said. She praised the governor and the State Legislature for “finding common ground” to compromise.

In contrast, defense groups were critical of Hochul while praising Heastie and legislators for blocking a complete rollback.

“Governor Hochul never attempted to meaningfully engage with key stakeholders such as exonerees and criminal defense attorneys — those who have been most impacted by open discovery — during this backroom process,” the Innocence Project said in a statement. “We are grateful that state lawmakers stood with the exoneree community in defending discovery reform.”

By Yancey Roy

yancey.roy@newsday.com@yanceyroy