Gov. Kathy Hochul, Democrats weighing changes to discovery law impacting speedy trials

ALBANY — Gov. Kathy Hochul and the State Legislature are considering changing a law meant to ensure the timely sharing of evidence in criminal cases, which could have a domino effect on the practical impact of the state's speedy trial law.

It’s a notable shift for Democrats, who dramatically overhauled the same law just a few years ago and it follows years of complaints from prosecutors. The key question is whether they will settle on a mild tweak or more substantial changes.

Hochul, in her State of the State address Tuesday, said she wanted to change the "discovery" law — which sets deadlines for prosecutors to turn over evidence to defense attorneys.

While the new law, signed by Gov. Andrew M. Cuomo in 2019, enhanced the fairness of trials, Hochul said it brought unintended consequences for the speedy trial law, resulting in too many cases being dismissed.

"I’ll fight to finally close the loopholes that were created in our discovery laws that delay trials and lead to cases being thrown out on minor technicalities," Hochul said during her speech in Albany.

Earlier this month, two Democrats introduced a bill also aiming at discovery. It centers on police turning over investigative materials more quickly to prosecutors than linking changes to speedy trial statutes.

Still, the fact that the governor and legislators are floating ideas means some change is likely to happen in the 2025 legislative session, which ends in mid-June, officials said last week.

The discovery overhaul from six years ago set tight 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 overhaul was approved by Cuomo over the objections of prosecutors.

Part of the process involves prosecutors certifying they have complied with the law by turning over all required materials and effectively saying they are ready to move toward a trial. State law sets deadlines for how soon a prosecutor must be ready for trial; for example, 90 days for higher level misdemeanors.

But if a defense attorney shows that not all materials were turned over and a prosecutor must correct the error, it can cut into the prosecutor’s time to prepare for trial. Since the law was enacted, prosecutors say they have wound up dismissing thousands of low-level cases when they recognized speedy-trial requirements would not be met.

Hochul hasn’t fleshed out her proposal yet. But she signaled her sentiment for stopping or adjusting the speedy-trial clock in instances in which discovery errors impact the timetable.

In a policy book accompanying the governor’s speech, the Hochul administration said:

"Currently, if a prosecutor’s discovery compliance is later challenged successfully, the time between certification and challenge is retroactively counted against the prosecution, often resulting in dismissals unrelated to the merits of the case or the legality of the investigation. ... To address this, Governor Hochul proposes changes to eliminate the incentive to delay discovery challenges and to ensure that a discovery error is addressed in a manner proportional to the discovery error itself rather than as a technical mechanism to have an entire case dismissed. These changes will promote timely review that will improve case processing times ... ."

Hochul is expected to soon put her proposal in statute form later this month, spelling out exactly what she wants changed.

Sen. Zellnor Myrie (D-Brooklyn) and Assemb. Micah Lasher (D-Manhattan) have proposed a different change. Their bill would require police departments to give district attorney offices direct access to "pertinent database, allowing prosecutors to directly access and collect discoverable materials."

They say this would mean prosecutors wouldn’t have to make requests for materials and police would not have to dedicate staff to compiling and turning over materials.

"Our legislation aims to reduce the administrative burdens on law enforcement while continuing to protect defendants’ due process rights," Myrie, who is running for New York City mayor, said in a statement.

The District Attorneys Association of New York State said it was time the governor and legislators take a "realistic look" at the impact of the discovery. Citing Hochul’s general idea of changes, Association President Michael E. McMahon, the Staten Island district attorney, said: "Today’s proposal is a step toward restoring common sense to a process that will ensure that defense counsel has complete access as timely as possible, that victims’ rights are restored in the balance, and that unintended consequences are eliminated."

Sen. Anthony Palumbo (R-New Suffolk), an attorney and a critic of the discovery law, said the speedy trial "clock" should not run while lawyers are compiling discovery material "especially in cases where no individual is in custody."

Republicans are vastly outnumbered in the State Legislature and don’t have power to pass bills, but can put pressure on the Democratic-led Assembly and Senate. Palumbo said Democrats are feeling pressure politically on crime issues while adding: "Whatever their motive, they just need to make some changes" to the discovery law.

In contrast, the Legal Aid Society and the state Association of Criminal Defense Lawyers say Hochul’s proposal is an overreaction. They also note New York’s highest court has ruled that diligent prosecutors aren’t penalized in terms of the speedy trial clock for inadvertent mistakes.

They said the discovery changes in 2019 reduced wrongful convictions by ending prosecutors’ ability to stash evidence until the eve of a trial to force plea bargains.

Legal Aid, which represents indigent clients, said in a statement: "Reopening the discovery debate serves only to distract us from addressing the known drivers of violence in our communities and the proven solutions to combat them: access to stable and secure housing, as well as community-based health and mental health services."

By Yancey Roy

yancey.roy@newsday.com@yanceyroy