Sweeping Changes to the Criminal Justice System Benefit those Accused

April 4, 2019 | Michael Vanunu | Compliance, Investigations & White Collar

On Monday, April 1, 2019, Gov. Andrew Cuomo and the New York Legislature agreed to broad reform in the criminal justice system that will take effect on January 1, 2020. These new criminal procedure laws will completely change how individuals accused of committing crimes (referred to below as “the accused”) are treated during a criminal prosecution.

For those accused of theft or fraud, the new laws will affect their experience in the criminal justice system through three overhauling changes, which include: (i) the use of more desk appearance tickets; (ii) elimination of bail in cash or bond form for almost all cases; and (iii) requiring the prosecution to disclose almost all of the evidence against the accused well before trial.

The following summarizes what the changes will mean for the accused.

First, stay calm! If you are arrested, the new laws make it significantly more likely that you will not be waiting overnight behind bars before seeing a judge. Typically, once someone is arrested, the police can either issue the accused a desk appearance ticket (DAT) that indicates a specific future date when the accused has to come back to court to see a judge, or the police hold the accused until he or she is brought before a judge (which could take up to 24 hours, most of which time is spent sitting in a jail cell). Previously, police had the discretion whether to issue a DAT for certain charges. Now, under the new law, police will be required to issue a DAT for certain charges. As a result, many more first-time offenders will not have to wait behind bars to see a judge. Instead, he or she will be issued a DAT and directed when to go to court.

For example, John is arrested and charged with grand larceny for stealing $2,500 from his employer. Next January, if this is John’s first offense (unless other certain circumstances apply), the police will be required to issue John a DAT, and John will get to sleep in his own bed the night before seeing a judge.

Second, come January 2020, the cost of your freedom will actually be free. Under the new laws, almost all individuals charged with fraud or theft (regardless how serious) will no longer have to provide cash or a bond to avoid spending time in jail pending prosecution. Instead, on these cases and many others, the Court must release the accused pending prosecution or release him or her with certain non-monetary conditions, which are used only to make sure the accused returns to court.

The new reforms set a new default standard of release without any conditions. If, however, the Court is convinced that certain conditions are necessary to make sure that the accused voluntarily returns to court, then the Court can set “non-monetary conditions.” Types of non-monetary conditions include, but are not limited to: following the direction of a local non-profit or government-affiliated pretrial agency whose purpose is to make sure the accused returns to court and stays out of trouble; placing restrictions on the accused’s travel; or electronic monitoring. (However, if the accused fails to abide by the conditions set by the Court, then the Court may set monetary bail.)

For example, Steve is arrested for tax fraud for underpaying New York State more than $500,000. Although this charge can face seriously penalties with a maximum punishment of 5-to-15 years in jail, the Court will not be able to set bail on Steve. Traditionally, a prosecutor would ask for monetary bail based upon Steve’s criminal record history and other individual circumstances to secure his return to court, and the Court had the option to set bail. However, next January, the Court will only have the authority to release Steve without any conditions or release Steve with specific non-monetary conditions.

Lastly, the accused will obtain the evidence against him or her during early stages of the criminal prosecution. Under the old laws, there is only limited, specifically-defined evidence that the prosecution is required to give the accused well before a hearing or trial. Most of the documents would be provided to the accused right before the start of a hearing or trial. This doesn’t afford adequate time for the accused’s attorney to properly review all of the materials and put forward the best defense.

The law does not change the type of documents that must be given by the prosecution, but significantly changes the timing of when those documents are required to be provided to the accused, which makes defending against a criminal prosecution a fairer fight. Under the reforms, almost all of the evidence that a prosecutor would now normally have to disclose only just before a trial or hearing, will now have to be disclosed within 15 days after the accused appears for an arraignment (the first time that the accused sees a judge for charges based on an arrest or an indictment). This means that those accused of crimes will get to see all of the “cards” the prosecution has early in the criminal prosecution, which will inevitably help in developing a defense and negotiating a plea bargain.

In fact, the new rules take this early disclosure requirement one step further, to require, in all felony cases, that the evidence be disclosed, if not done so already, before the accused takes any plea bargain. While the accused may waive his or her right to see this evidence, the plea bargain cannot be conditioned on the accused waiving his or her right to obtain the evidence against him or her.

For example, Christina owns a construction company and has been arrested, but not indicted, on a massive workers’ compensation fraud scheme, alleging that she lied about the company’s number of employees and their wages in order to pay a significantly lower premium for workers’ compensation insurance. Christina’s attorney is trying to negotiate a plea bargain with the Attorney General’s office. Under the old rules, the prosecutor is not required to disclose any documents or evidence to Christina before she took a plea deal. Because Christina would have to wait until the eve of a hearing or trial to see the bulk of the evidence against her, she wouldn’t know what cards the prosecutor is holding and whether the plea deal was actually a good deal.  Now, the prosecutor must turn over almost all of the evidence against Christina before she agrees to a plea deal. This will give Christina and her lawyer the ability to review the evidence against her and determine whether the plea deal is in Christina’s best interest.

Disclaimer: the changes described above are general in nature as the new laws contain very specific exceptions for each change. If you are charged with a crime, talk to a lawyer to determine how these specific changes will affect you.

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