Reviewing the case law as discovery reforms delay budget negotiations

ALBANY, N.Y. (NEXSTAR) — Negotiations for the New York State budget between the governor and the legislature are supposed to finish before the budget deadline on April 1, but debate stalled over policy issues like discovery reform. Lawmakers joined advocates for a press conference in the Capitol on March 27 to defend New York’s current discovery laws, citing the New York State Court of Appeals decision in "People v. Bay."

The legislators included Assemblymembers Latrice Walker and Gabriella Romero, both of whom have experience as public defenders. They warned that undoing 2019 reforms would return the state to an era when police and prosecutors withheld evidence, forcing the innocent into wrongful pleas.

"You're probably hearing a lot of misinformation. You're hearing these concepts of ‘dismissals on technicalities.’ And here in the year of 2025, a dismissal on a technicality is against the law. I need you all to know that, that in the year of 2025, a dismissal on a technicality goes against the law of ‘People v. Bay,’" said Romero, a Democrat representing Albany, Guilderland, and New Scotland. "It says that you cannot technically have a dismissal on a technicality. That goes against the actual law. And it's very, very important that you all know about this misinformation."

Take a look at her remarks below:

Discovery is the portion of a court case before a trial when both parties develop, find, and share evidence like documents, photos, depositions, and witness statements. Discovery reform changed the old “Blindfold Law” that did not prevent police or prosecutors from withholding evidence, sometimes until the day before trial.

In the interest of fairer and speedier trials, the New York State Legislature reformed discovery procedures during the Cuomo Administration. Now, prosecutors have to share all related discovery materials within 20 days of an arraignment when a defendant is in custody, or within 35 days if not. The defense also has to get any missing evidence within 30 days of receiving the initial materials.

Next, the prosecution has to file a certificate of compliance affirming that, having shared their evidence, they stand ready for trial. That COC is supposed to corroborate their thorough efforts at collecting evidence, followed by a prompt supplemental COC if they later find more. But that's for more evidence that genuinely turns up later, not evidence that they forgot they had or didn't list. The prosecution has to serve that COC before the trial can start, and they can't just enter a post-filing disclosure to fix it.

A court then has to ask on the record whether the prosecution met their discovery duties. If a prosecutor can't show that they exercised due diligence, the court would invalidate their COC claim of trial readiness.

At a roundtable on March 24, Hochul met with district attorneys and advocates for domestic violence survivors. She said she wants to change the rules again to prevent cases from getting thrown out if one piece of evidence shows up after the tighter deadlines. "Let there be a lot of something called common sense in this system,” she said.

In "People v. Bay"—a unanimous New York State Court of Appeals decision from December 14, 2023 that's available to read at the bottom of this story—reversed a lower court order and dismissed charges after the prosecution failed to meet discovery deadlines. The case concerned Michael Bay, arrested in 2021 and charged with harassment.

According to the ruling, the court must see real efforts to gather and share evidence before the prosecution files its certificate of compliance. The prosecution shared lots of material, but Bay's defense counsel noted that important evidence—like a 911 recording and police report—were missing. The defense moved to dismiss the case under speedy trial rules once the prosecution filed a certificate of compliance (COC) that didn't include that evidence.

One plank of the governor’s plan would limit discovery materials to only what is in the prosecutor’s actual possession. That's contrary to how the court interpreted the current standards in "People v. Bay": "materials possessed by a New York state or local police or law enforcement agency are deemed in the People’s possession for purposes of the discovery requirements."

In Bay’s case, although defense counsel reported the missing evidence, prosecutors didn't share it until after the discovery clock had already ticked past the deadline. It was not clear whether that specific prosecutor's office had that evidence directly, or if the local police or dispatch kept them on record.

The case also set the standard for due diligence. In "Bay," the prosecutors who left out the 911 call and police report argued that neglecting that evidence didn't represent prejudice against the defendant. But the court found that "a defendant need not demonstrate prejudice to obtain speedy trial dismissal based on a failure to timely comply with discovery obligations."

The prosecution's due diligence must meet a higher standard than just not being prejudiced against the defendant. The court requires active, good faith, and reasonable efforts to share related to the case. So, the Court of Appeals dismissed the charges.

Does missing vital evidence that would legitimately affect the outcome of a case represent a technicality? Is leaving out that vital evidence even after repeated requests for inclusion an example of reasonableness?

"There is no rule of 'strict liability'; that is, the statute does not require or anticipate a 'perfect prosecutor,'" according to the court. "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."

The court found that a dismissal under the speedy trial rules would be valid, since they'd failed to reasonably include all evidence and failed to file the proper COC. But the court found that other remedies can fix problem besides a dismissal in case of a technicality as in this case. One avenue would be precluding the evidence, preventing it from being admitted into court and incorporated into the prosecution's case. Another would be an adjournment, postponing court proceedings or hearings to a later date.

According to Romero, "If we were to codify 'People v. Bay,' we would be codifying due diligence into the evidentiary standard."

New York’s discovery reform is also known as Kalief’s Law, named for a Bronx teen who suffered wrongful detention at Riker's Island and later committed suicide.

Take a look at "People v. Bay" below: