NY's top court upholds discovery law in upstate harassment case

ALBANY — In what’s believed to be the first test of a relatively new law, New York’s top court has overturned a conviction based on a prosecutor’s office failing to turn over discovery material to defense attorneys in a timely fashion.

The Court of Appeals on Thursday tossed the conviction of Michael Bay in what was otherwise a fairly low-level case: a harassment charge in Cortland County. The charge didn’t even reach the misdemeanor level; it was considered a violation.

But defense attorneys are hailing the decision as the first instance the Court of Appeals has tested and upheld a new discovery law enacted by New York in 2019 as part of a wave of criminal justice changes.

The new law tightened deadlines for prosecutors to turn over evidence to defense attorneys. For years, defense attorneys had said prosecutors too often waited until the eve of a trial to turn over materials, which handicapped a defendant’s ability to decide whether to plea bargain or go to trial. The law was approved by then-Gov. Andrew M. Cuomo over the objections of prosecutors.

In this particular case, Bay was charged with second-degree harassment in 2021 after “becoming physically aggressive with his mother,” according to court documents. No one was injured.

At one point, the district attorney's office certified it had provided Bay’s defense with all the case evidence. When asked for the record of the 911 call and a “domestic incident report,” the prosecutor said those didn’t exist.

Turns out they did, and the case was delayed.

The defense moved to dismiss the charges, saying that, by now, speedy trial guarantees were violated. The judge denied the motion, saying the prosecutor acted in good faith and the error didn’t significantly impact the case. Bay was convicted.

But the Court of Appeals disagreed in a 7-0 decision uniting liberals and conservatives on the bench. It said Cortland prosecutors had opportunities at more than one hearing along the way to correct the record and turn over evidence “but failed to do so,” showing a lack of due diligence.

“The statute does not require or anticipate a ‘perfect prosecutor.’ On the other hand, the plain terms of the statute make clear that while good faith is required, it is not sufficient standing alone and cannot cure a lack of diligence,” Judge Caitlin Halligan wrote for the court.

This was the first case directly testing the discovery law, according to the New York Legal Aid Society, which represents indigent clients.

While applauding the ruling, Legal Aid also said it shows the state needs to provide more funding to public defenders and prosecutors to ensure compliance with the discovery law. Last May, Gov. Kathy Hochul and the State Legislature earmarked $170 million for just that purpose. Attorneys on either side have said another boost is needed in 2024.

By Yancey Roy

yancey.roy@newsday.com@yanceyroy