Criminal Defense Lawyers Explain the Changes in New York’s Criminal Justice Reform Laws.

Now over 6 years ago, in January 2020, New York passed substantial criminal justice reforms, including major changes to bail and discovery. Since then, New York has passed amendments, modifying the reforms in some substantial ways. Ultimately, the following has been the landscape for a decent amount of time now, and your attorney should be able to navigate the current landscape to your advantage.

If I am charged with a crime, can bail be set?

Sometimes. New York now has “qualifying” and “non-qualifying” offenses. These terms basically lay out that bail is eligible if the offense is “qualifying” whereas “non-qualifying” ones can only include non-monetary conditions. The list of each has changed over the years somewhat.

What offenses or crimes are “qualifying offenses” for bail?

 A judge may set bail if you are charged with any of the following crimes:

  • Aggravated assault upon a police officer or a peace officer – B violent felony, PL 120.11
  • Aggravated criminal contempt – D felony, PL 215.52
  • Aggravated Criminal Possession of a Weapon – C violent felony, PL 265.19
  • Aggravated criminally negligent homicide – C violent, PL 125.11
  • Aggravated Enterprise Corruption – A-I felony, PL 460.22
  • Aggravated manslaughter 1 – B violent felony, PL 125.22
  • Aggravated manslaughter 2 – C violent felony, PL 125.21
  • Aggravated murder – A-1 felony, 125.26
  • Aggravated sexual abuse 1 – B violent felony, 130.70
  • Aggravated sexual abuse 2 – C violent felony, 130.67
  • Aggravated sexual abuse 3 – D violent felony, 130.66
  • Aggravated sexual abuse 4 – E violent felony, 130.65-a
  • Aggravated unpermitted use of indoor pyrotechnics 1- D violent felony, 405.18
  • Arson 1 – A-1 felony, 150.20
  • Arson 2 – B violent felony, 150.15
  • Assault 1 – B violent felony, 120.10
  • Assault 2 – D violent felony, 120.05
  • Assault on a Judge – C violent felony, 120.09
  • Assault on a peace officer, police officer, fireman or emergency medical services professional – C violent felony, 120.08
  • Attempt of Class A-I of: A-I felony, 110.05, including Murder-1, Aggravated Murder, Criminal Possession of a Chemical or Biological Weapon-1, Criminal Use of a Chemical or Biological Weapon-1
  • Attempt of Class A-I of: B violent felony, 70.02, including Murder-2, Kidnapping-1, Arson-1. Attempt of a class A-II Felony, A-II felony 110.05
  • Attempt of a class B Violent Felony C violent 70.02 Attempt of a class C Violent Felony D violent 70.02 110.05 Attempt of a class D Violent Felony of: E violent 70.02 Cr. Possession of a Weapon-3 per, PL 265.02(5),(6),(7),(8) as a lesser included offense
  • Burglary 1, B violent felony, 140.30
  • Burglary 2, C violent felony, 140.25
  • Conspiracy 1, A-I felony, 105.17
  • Course of sexual conduct against a child 1, B violent felony, 130.75
  • Course of sexual conduct against a child 2, D violent felony, 130.80
  • Crime of terrorism, ​ See​ PL 490.25(2), 490.25
  • Criminal contempt 1, E felony, 215.51
  • Criminal possession of a chemical weapon or biological weapon 1, A-I felony, 490.45
  • Criminal possession of a chemical weapon or biological weapon 2, B violent felony, 490.40
  • Criminal possession of a chemical weapon or biological weapon 3, C violent felony, 490.37
  • Criminal possession of a weapon 1, B violent, 265.04
  • Criminal possession of a weapon 2, C violent, 265.03
  • Criminal possession of a weapon 3, D violent, 265.02(5), (6), (7), (8), (9), (10)
  • Criminal sale of a firearm 1, B violent felony, 265.13
  • Criminal sale of a firearm 2, C violent felony, 265.12
  • Criminal sale of a firearm 3, D violent felony, 265.11
  • Criminal sale of a firearm with the aid of a minor, C violent felony, 265.14
  • Criminal sexual act 1, B violent, 130.50
  • Criminal sexual act 2, D violent, 130.45
  • Criminal use of a chemical weapon or biological weapon 1 A-I felony, 490.55
  • Criminal use of a chemical weapon or biological weapon 2 A-II felony, 490.50
  • Criminal use of a chemical weapon or biological weapon 3 B violent felony, 490.47
  • Criminal use of a firearm 1 B violent felony, 265.09
  • Criminal use of a firearm 2 C violent felony, 265.08
  • Facilitating a sex offense with a controlled substance D violent felony, 130.90
  • Falsely reporting an incident 1 D violent felony, 240.60
  • Falsely reporting an incident 2 E violent felony, 240.55
  • Gang assault 1 B violent felony, 120.07
  • Gang assault 2 C violent felony, 120.06
  • Hate Crimes ​ See​ PL 485.10, 485.05
  • Hindering prosecution of terrorism 1 B violent felony, 490.35
  • Hindering prosecution of terrorism 2 C violent felony, 490.30
  • Incest 1 B violent felony, 255.27
  • Intimidating a victim or witness 1 B violent felony, 215.17
  • Intimidating a victim or witness 2 D victim felony, 215.16
  • Kidnapping 1 A-I felony, 135.25 Kidnapping 2 B violent felony, 135.20
  • Manslaughter 1 B violent felony, 125.20 Murder 1 A-I felony, 125.27
  • Murder 2 A-I felony, 125.25 Operating as a Major Trafficker A-1 felony, 220.77
  • Persistent sexual abuse E violent felony, 130.53
  • Predatory sexual assault A-II felony, 130.95
  • Predatory sexual assault against a child A-II felony, 130.96
  • Rape 1 B violent felony, 130.35
  • Rape 2 D violent felony, 130.30
  • Reckless assault of a child D violent felony, 120.02
  • Robbery 1 B violent felony, 160.15
  • Robbery 2 C violent felony, 160.10
  • Sex trafficking B felony, 230.34
  • Sexual abuse 1 D violent felony, 130.65
  • Sexually motivated felonies, See​ PL 130.92 130.91
  • Soliciting or providing support for an act of terrorism 1 C violent felony, 490.15
  • Soliciting or providing support for an act of terrorism 2 D violent felony, 490.10
  • Stalking 1 D violent felony, 120.60
  • Strangulation 1 C violent felony, 121.13
  • Strangulation 2 D violent felony, 121.12

The Court may also set monetary bail on several non-violent offenses including:

  • Witness Tampering, PL §215.13​
  • Facilitating Sexual Performance by a Child with a Controlled Substance or Alcohol, PL §263.30​
  • Aggravated Patronizing a Minor for Prostitution 2, PL §230.13​
  • Conspiracy 2nd degree, if the crime conspired was to commit a homicide, PL §105.15​
  • Money Laundering in Support of Terrorism 1st degree, §470.24​
  • Use of a Child in a Sexual Performance, PL §263.05​
  • Money Laundering in Support of Terrorism 2nd degree, §470.23
  • Witness Tampering, PL §215.12
  • Patronizing a person for prostitution 1°, PL §230.06
  • Incest 2nd degree, PL §255.26​
  • Aggravated Criminal Contempt, PL §215.51 – if related to Domestic Violence
  • Luring a Child, PL §120.70(1)​
  • Witness intimidation, PL §215.15 (E felony)​
  • Criminal Contempt 1st degree, PL §215.51 (b)(c) or (d) – if related to Domestic Violence
  • Rape 3rd degree, PL §130.25​
  • Patronizing a Person for Prostitution 2nd degree, PL §230.05​
  • Aggravated Patronizing a Minor for Prostitution 3rd degree, PL §230.11​
  • Incest 3rd degree, PL §255.25​

And finally, several misdemeanors may have monetary bail as well:

  • Sexual Misconduct, PL §130.20 (A misdemeanor)​
  • Forcible Touching, PL §130.52 (A misdemeanor)​
  • Sexual Abuse 3rd degree, PL §130.55 (B misdemeanor)​
  • Sexual Abuse 2nd degree, PL §130.60 (A misdemeanor)​
  • Criminal Contempt 2nd degree, PL §215.50(3) – if related to Domestic Violence

Can a court impose restrictions other than bail or jail?

 Yes. Even on non-qualifying offenses, a court to order any of the following conditions if the court believes it necessary to ensure your return to court.

  • Passport surrender
  • Mandated counseling programs
  • “Association” refrains, prohibiting you from being with or communicating with people beyond those in an order of protection
  • Proof of diligent efforts trying to obtain housing, employment, or schooling
  • Obey reasonable requests and conditions to ensure the safety of a victim
  • Electronic monitoring

However, be aware that you cannot be forced to pay for any of the above services, regardless of your income status.

What about Discovery changes? Are defendants getting to see the evidence against them?

New laws require that if you are in custody, meaning in jail or unable to post bail or bond, they must produce mandatory discovery within twenty (20) days. If you are not in jail, the prosecution has thirty-five (35) days to provide the evidence.

However, be aware that failure to meet these obligations is not likely to result in dismissal. Statutory speedy trial (CPL §30.30) is separate and distinct from this and minor violations may have no remedy, whereas major ones may result in suppression of evidence, or dismissal, in only the most severe circumstances.

Can the government get an extension for more time to provide the evidence against me?

Yes. The government has the right to an automatic extension for “voluminous” discovery. The new amendments clarified “voluminous” may include body camera videos, dashboard or in-vehicle videos, and other video surveillance.

Are there any cases where the new discovery laws don’t apply?

Yes. The changes to discovery do not apply if you are only charged with minor traffic offenses, violations, or  petty offenses in a municipal code.

As long as there is no imprisonment/jail penalty or the charge does not result in a criminal record, the new discovery rules do not apply.

You still have a right to discovery in these cases, however it must be provided 15 (fifteen) days before trial, unless a motion is filed to receive the discovery earlier and the court grants the request.

Is there any evidence defendants aren’t receiving?

Yes. In the case of a 911 phone call when the government intends to call that 911 caller to testify, their name and other contact information may be withheld until 15 (fifteen) days before the trial or hearing at which this person will be called to testify.

Also, the government may automatically exclude information as to confidential informants. This extends to the identity of a 911 caller, and victims and witnesses in sex offense allegations, including sex trafficking. The government can automatically withhold this information and does not need to seek a protective order from the court to do so. However, they are required to disclose that they are withholding such information.

Were there any changes to scientific or expert discovery?

Yes. The government need only provide a list of tests and results, not the actual tests themselves. Also, the prosecution is not required to provide any information about a scientific test until it has been completed.

If I think it would be helpful for my case, can I choose to waive certain time frames or discovery rights?

Yes. When doing so, a court is required to make an inquiry about the waiver of your discovery rights on the record, i.e. in open court so a stenographer may document the conversation. It should not simply be a written/signed waiver by you and your attorney.  Even if your attorney advises you of your discovery rights, the court must still conduct its own inquiry to make sure you understand and want to waive your discovery rights.