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Gov. Kathy Hochul is rallying behind Big Apple district attorneys’ push to change the state’s evidence laws — by closing a loophole prosecutors argue has led to more accused criminals being let off on technicalities.
All five of New York City’s top prosecutors, from lefty Manhattan DA Alvin Bragg to conservative Staten Island DA Michael McMahon, flanked Hochul on Friday as she touted the proposed reforms — and cast them as necessary to prevent recidivism.
“We’re continuing to see a real urgent problem of a revolving door of criminals who are arrested and then let out on technicalities, free to commit crimes again,” she said.
“Fixing these loopholes will be a step in the right direction to stopping the revolving door of people who are arrested, as I said, and released on a technicality.”
A major tweak to so-called discovery laws endorsed by the DAs — and included in Hochul’s whopping $252 billion budget plan — would be to set a time limit for when defense attorneys can request that a case be tossed based on an alleged evidence violation.
This would make it less likely that cases get tossed on technicalities, such as if prosecutors don’t meet deadlines for turning over evidence, the governor’s office said.
The governor also wants to narrow the scope of materials that prosecutors are currently required to turn over to the defense.
Currently, prosecutors have to submit “all items and information that relate to the subject matter of the case” — an ask that DAs across the state have argued is burdensome as it could include reports, documents and other materials that are irrelevant.
Under Hochul’s proposed bill, prosecutors would only have to turn over evidence related to the specific charge in the case at hand.
Discovery practices were tweaked as part of the state’s 2019 criminal justice reforms, alongside the highly contentious bail laws, but prosecutors have argued that the changes have led to more criminal cases getting tossed.
Criminal case dismissals in New York City stood at 41% before the discovery reforms and shot up to 62% in 2023, Office of Court Administration data shows.
The changes to evidence laws proposed by Hochul — and backed by all five city DAs — as part of a new bill, are as follows:
Reduce the scope of what evidence prosecutors have to gather and hand over to the defense.
Requires defendants to pose their challenge to a discovery violation within 35 days of prosecutors handing such evidence over.
Clarifies that a defendant has to show that they were harmed (prejudiced) by evidence not being turned over in order for a case to be dismissed.
Allows a judge to issue other sanctions for a discovery violation short of dismissing a case entirely.
Reasons behind dismissals vary, but often come down to paperwork issues under the discovery law that have nothing to do with the merits of a case — such as a subway slashing that Hochul highlighted in which the accused madman walked free on a minor technicality.
The governor didn’t provide details, but a law-enforcement source told The Post it stemmed from a December 2022 run-in on a Brooklyn subway platform.
A stranger slashed a straphanger without provocation, leading to a first-degree assault charge, the source said. Prosecutors obtained all the medical records from the victim, but just before trial the man told them about a previously undisclosed follow-up appointment.
Prosecutors immediately told the defense team, and there were no extra records from the appointment, according to the source.
But a judge dismissed the case, ruling that the prosecutors did not exercise due diligence required under the law because the medical records had some indication that there would have been a follow-up appointment, the source said.
In another shocking example, a 60-something man was arrested for forcible touching and sex abuse of his 20-something neighbor, and taking pictures of her without her consent for a full month in Manhattan, the DA’s office said.
The case was dismissed because prosecutors did not turn over three sheets of paper comprising two basic forms about the suspect’s location in custody, which the DA’s office said it did not have in its possession at the time and which had nothing to do with the actual allegations.
It’s not just violent crimes in which accused criminals are sprung loose.
Dismissals are especially prevalent in misdemeanor cases such as drunken driving, domestic violence, lower-level sexual abuse and retail theft under the discovery law, said Darren Albanese, executive assistant district attorney for Staten Island.
“Simply, those cases are getting dismissed more than ever, and they’re getting dismissed on technicalities,” he said.
The majority of those case dismissals come down to a “failure to comply” with the discovery law, Albanese said.
Discovery rules call for all evidence to be disclosed within 35 days in most cases, and even shorter in many others.
Prosecutors can be found to have run afoul of that ticking clock retroactively if they find and turn over evidence afterward.
The rules perversely incentivize defense lawyers to game the system by claiming to have not received the information weeks or months into a case, often leading to dismissals if a judge agrees with them, the governor’s office said.
The new plan would set a new 35-day limit for when defense attorneys can request a case be dismissed based on alleged discovery errors. The clock would start when prosecutors submit a “certificate of compliance” that they’ve turned over the required discovery evidence.
“At the time they’re making the motion to dismiss, they have the evidence in question,” Albanese said of defense attorneys.
“Now, we call victims of crimes and tell them that the case was dismissed on a technicality and explain to them that it was nothing they did wrong, nothing to do with merits of the case, but it was a loophole in the law.”
The undisclosed evidence can be trivial.
Albanese highlighted a DWI case in which an allegedly drunken motorcyclist — who had a long criminal record, including another boozy driving arrest — had the charges dismissed because prosecutors failed to turn over all documents on time from a disciplinary case involving one of the responding NYPD officers.
The cop had been dinged for inadvertently driving over a garbage can, spilling garbage on the street, he said.
“Because of an unrelated disciplinary matter where someone ran over some garbage, the case was dismissed,” he said.
Nearly half of drunken driving cases in Manhattan were dismissed in 2022, compared to 9% in 2019, before the reforms became law.
The burdens of Albany’s discovery law even found a vocal critic in Bragg, whose liberal policies have been criticized as soft-on-crime.
“This data makes clear that discovery is burying our prosecutors in paperwork that is often unrelated to the underlying substance of the case,” Bragg previously told The Post.
The proposal included in Hochul’s budget is largely the brainchild of the five New York City DAs, a number of sources suggested.
Other district attorneys outside the five boroughs – where dismissal rates are not nearly as high – generally agree that some action on discovery is a move in the right direction.
District Attorneys Association of the State of New York, which is headed by McMahon, voted Thursday to back Hochul’s proposal.
McMahon said the bipartisan lineup of prosecutors behind Hochul showed the groundswell of support for a proposal to “restore balance” to the state’s criminal justice system.
“There have been some unintended consequences from that law, and we are here today to adjust that law, to make it more fair, make it more practical, and also to continue to ensure public safety,” he said.
The proposal would also require defendants to show that they are harmed by evidence not being turned over in order for a case to be dismissed and allows judges to issue other sanctions for violation short of dismissing cases entirely.
“It’s a process, so hopefully this will result in some progress,” Suffolk County DA Raymond Tierney told The Post.
Prosecutors who spoke with The Post were keenly aware of the political reality that lefties and their allies in the Legislature will push back on proposals from law enforcement.
The proposed tweaks were met with outrage from The Legal Aid Society, which argued on Friday that Hochul and the DAs cherry-picked data to push a false narrative that the discovery reforms have driven up recidivism and crime.
“The mental gymnastics performed by prosecutors and others to undermine this successful reform have nothing to do with public safety and everything to do with restoring a system that granted DAs an immense advantage — one they benefited from for decades,” the group said in a statement.
Liberal lawmakers fought tooth and nail against Hochul’s proposals to try to tweak the 2019 bail laws during 2023 budget talks.
The Legislature forced a days-long standoff that year over Hochul’s proposal to give judges more leeway on setting bail.
State Senate Majority Leader Andrea Stewart-Cousins (D-Westchester) told reporters earlier this year that she’d entertain discussions on discovery, though that’s far from a commitment to seriously consider the legislation.
“We want to we want to get it right, so we’re always open to, to seeing how to do that,” Stewart-Cousins said.
A spokesperson for Assembly Speaker Carl Heastie (D-Bronx), didn’t reply to a request for comment Friday.
But state Sen. Anthony Palumbo (R-Suffolk), a former prosecutor, backed the proposal — and others even said they’d go a step further.
“We should have an appropriate sanction relative to the violation,” Palumbo told The Post.
“We can’t just immediately say that this technical violation is so severe that it warrants dismissal. That’s way overboard.”
“It’s really quite a severe result for something that may be even unintentional.”
Short of scrapping the entire 2019 changes altogether, several current and former prosecutors suggested untethering the requirements from New York’s speedy trial requirements altogether, therefore significantly limiting the ability of judges to throw out cases for a discovery challenge.
“I think it should be completely decoupled,” Palumbo said.
“Or certainly, for violations and misdemeanors it should be completely decoupled.”
Newly elected Albany County District Attorney Lee Kindlon, a Democrat and one of the DAs flanking Hochul, said the proposed changes reach a good middle ground.
“I think it’s going to work really well.”
Kindlon, a former defense attorney, remembered instances prior to the 2019 laws where he would only be handed discovery after making an opening statement at trial.
“We’re never going back there,” Kindlon said.
The former defense attorney even went as far as bucking groups like Legal Aid, who have suggested the proposal could unravel the 2019 changes entirely.
“I don’t buy that,” he said.
Albanese said the proposed changes don’t touch the 21 categories of materials that prosecutors have to disclose.
“Transparency remains the name of the game,” he said.
Some Big Apple trial lawyers gave the proposal a mixed review.
Attorney Nicole Brenecki said it appeared insufficient to fix the system entirely, but she still called it a good step forward.
“Discovery violations are a common and very egregious issue in the New York State court system,” she said.
“The current system is set up in a way that allows both sides to manipulate it.
“Rectifying discovery errors instead of allowing dismissal of cases will allow the parties to reach a quicker resolution on the merits which has always been the preference of our legislators and members of the judiciary.”
“It is a step in the right direction to reform discovery laws where the defendants’ rights are upheld in being able to analyze, review and absorb discovery well before trial, but at the same time giving prosecution ample time and beyond the 15-day rule to deliver all of the discovery material to the defense,” said David Schwartz, a city trial lawyer and former prosecutor.
— Additional reporting by Peter Senzamici, Ben Kochman and Aneeta Bhole
