Discovery rules in New York courts shaping up to be heated policy debate in Albany

ALBANY — It pits prosecutors against defense attorneys. It could pit Democrats against Democrats — Gov. Kathy Hochul versus a usually more liberal State Legislature.

And it’s shaping up to be one of the most heated policy issues at the State Capitol during the 2025 legislative session.

The issue is called "discovery" in the legal world and it’s about how quickly prosecutors must share evidence with defense lawyers in a criminal case and how those requirements can impact a person’s right to a speedy trial.

New York overhauled its discovery law in 2019. It makes prosecutors share evidence sooner in the process and ties their discovery obligations to speedy trial guarantees. Prosecutors who fail to meet the deadlines can trigger cases being dropped by district attorneys or dismissed by judges.

For years, defense attorneys said district attorneys too often waited until the eve of a trial to turn over materials, handicapping 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.

But the overhaul also preceded a spike in the number of cases dismissed because prosecutors failed to meet speedy trial requirements (90 days to trial for most misdemeanors, 6 months for many felonies).

Now, prosecutors and Hochul want a partial rollback. They say the law allows defense attorneys to "run out the clock" on speedy trial requirements by making last-minute motions to receive evidence, leading to more dismissals.

"New York State has seen a drastic increase in dismissals on technical grounds . ... That was certainly not the intent of the drafters of the original law," Michael McMahon, the Staten Island district attorney and president of the state District Attorneys Association, said at legislative hearing in February.

Among the changes they want: when a prosecutor fails to turn over a piece of evidence within the required timeline, a judge will determine if the evidence was "relevant" to the defense’s case, not just "related," which is a higher standard.

"In order to get a dismissal, they ought to have to show prejudice," meaning the failure hurt a person’s defense, McMahon said.

Defense lawyers disagree.

They say the 2019 overhaul ended a process whereby prosecutors could wait months or years before turning over evidence, effectively coercing defendants to accept a plea.

"Going back to the good old days will lead to more coerced pleas, more wrongful convictions and lawyers unable to counsel their clients because they don’t have all the evidence," said Elizabeth Nevins, director of the defender clinic at Hofstra University Law School.

"Under the old system, there was no accountability. Now, there is accountability," Nevins said.

The state's top court has upheld a challenge to the law. The Court of Appeals said the law doesn't require a "perfect prosecutor" but mandates he/she exercise due diligence to turn over materials and comply with speedy trial requirements.

Defenders note that after the post-pandemic spike, growth in dismissals has tended to level off and, where there is growth, it is overwhelmingly in New York City.

Of the nearly 50,000 speedy trial dismissals statewide in 2024, 46,053 (92%) occurred in the five boroughs, according to state Division of Criminal Justice Services statistics.

Further, looking at just the change from 2023 to 2024, New York City dismissals went from 31,190 to 46,053 — a 47% increase in one year.

The other 57 counties of the state had a much smaller bump — from 3,345 to 3,921.

Both sides say there are caveats about the data. District attorneys note the statistics don't include cases in upstate village and town courts (as opposed to state courts) and the actual dismissal rates could be higher. Defenders say the state data could over-report dismissals because it doesn't account for when felony charges are lowered to misdemeanors.

On Long Island, the raw number of dismissals spiked in ’22, then have gone up and down, when comparing the first 11 months of the calendar year, which is the latest data DCJS has.

Nassau: 639 dismissals in 2021; then, 979, 375 and 413 in following years, Viewed as a percentage of overall caseload, dismissals accounted for 37% of cases in 2021 and 33% in 2024, Suffolk: 461 in 2021, followed by 891, 493 and 848, As part of overall caseload, dismissals went from 51% in 2021 to 43% in 2024,.

"Discovery reform is working in Nassau. It’s working in Suffolk. It’s working in all the cities in New York State except" New York City, said N. Scott Banks, attorney-in-charge at the Nassau bureau of the Legal Aid Society.

McMahon counters that while the city accounts for the huge majority, counties around the state still are showing increased dismissals, several years into reform.

"It’s nowhere near the numbers like the city but across the state you see increases," McMahon said.

Hochul, among her proposals, would have prosecutors share material that is relevant, not just related, to a case and judges would have more discretion to determine whether a disclosure failure actually harmed a defendant’s case in a significant way. Prosecutors call the latter a harm-proportionate remedy approach.

It's unclear whether the Democrat-dominated State Senate and Assembly will go along.

At this point, two Democrats, Sen. Zellnor Myrie (D-Brooklyn) and Assemb. Micah Lasher (D-Manhattan), are proposing a more modest change: Requiring police to give district attorney offices direct access to "pertinent databases" that would allow the latter to directly collect discoverable materials without having to wait for police to turn them over.

They say that should reduce the number of days it takes to share evidence with defendants and eventually reduce speedy trial dismissals.

It’s possible the issue could be tucked into a state budget agreement — which is often done with controversial policies — which is due April 1. If discovery falls out of budget talks, lawmakers would have to tackle it in the second half of the session, which is set to adjourn June 12.