Changes sought by DAs worry defenders

Having once represented defendants, Robert Tendy, Putnam County’s district attorney, said he has been a longtime advocate for reforming New York’s rules governing how prosecutors share the evidence they collect with defense attorneys.

Under the old rules, said Tendy, he would sometimes get thousands of pages of discovery on the eve of trials. In one case, prosecutors turned over hundreds of pages of phone records after the trial had started, and the judge said they had to be reviewed during lunch, he said.

“That’s crazy,” said Tendy. “But what’s happened now is we’ve gone completely over to the other side, which is equally crazy.”

Tendy is part of a chorus of district attorneys who are hoping the state relaxes rules governing evidence-sharing that took effect in 2020.

New York’s nascent discovery law lists 21 types of material that prosecutors must share with defense attorneys, including co-defendant statements, grand jury testimony, electronic recordings such as 911 calls, evidence collected from cellphones and computers and other “materials favorable to the defense.”

Defense attorneys must also receive footage from police body cameras — a relatively recent addition to the evidence canon that already included lab results, surveillance video and witness statements.

Prosecutors can ask a court to shield information they feel should be withheld, such as the names of witnesses who may be endangered. The law also requires the defense to share the evidence it gathers with prosecutors.

Just as significant, the 2020 rules prevent prosecutors from withholding evidence for prolonged periods, requiring that they automatically turn over materials no later than 35 days after arraignment, or 20 days for defendants being held in jail. A 30-day extension is allowed under some circumstances.

It is those deadlines that are reportedly under discussion as Gov. Kathy Hochul and the state Senate and Assembly negotiate a 2023-24 budget. Due on April 1, the spending plan has stalled because of disagreements on issues like bail reform and the governor’s proposal to expand housing.

As with changes to bail reform, defense attorneys and advocates for criminal-justice reform oppose any proposed revisions to evidence-sharing rules.

Elizabeth Costello, deputy chief for the Putnam County Legal Aid Society, said the law created a lot more work not just for prosecutors but for defense attorneys. She supports more funding to boost staffing and technology, but opposes changes to the requirements for turning over evidence.

The 2020 changes have created “more justice and fundamental fairness,” said Costello. “While it’s a lot more work for everybody, it’s vastly more equitable.”

When the changes first took effect on Jan. 1, 2020, the new law stated that evidence had to be turned over to defendants within 15 days of arraignment.

Just three months into the law’s implementation, the Dutchess County District Attorney’s Office said it needed $650,000 for new hires and had started triaging cases to avoid having serious charges dismissed if it missed the deadline.

State legislators revised the deadline that year, approving the current timeline. Last year, the Legislature eliminated automatic discovery for traffic violations and made changes designed to limit dismissals.

On April 17, the Putnam Legislature’s Protective Services Committee approved a budget amendment for $267,804 grant that is part of millions in funding the state is distributing to county district attorneys  and local police departments to help with the costs of complying with the reform.

Hochul’s budget proposed $40 million in spending in 2023-24, while the Assembly called for another $60 million for prosecutors. The Assembly also wants to allocate $100 million to help defense attorneys, and the Senate, $40 million.

But Tendy, who blames discovery for his inability to fill a months-old vacancy for an assistant district attorney, said his office needs time, not money.

“What they’ve implemented makes it impossible for an assistant district attorney to effectively do their job,” he said. “All they have to do is extend the dates to a reasonable time period.”

Behind The Story

Type: News

News: Based on facts, either observed and verified directly by the reporter, or reported and verified from knowledgeable sources.

The Peekskill resident is a former reporter for the Times Herald-Record in Middletown, where he covered Sullivan County and later Newburgh. He holds a bachelor’s degree in English from Morgan State University and a master’s degree in journalism from the University of Maryland. Location: Cold Spring. Languages: English. Area of Expertise: General.