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NYS Criminal Defense Attorney: Discovery, Preservation and FOIL

Criminal Defense Attorneys and New York Discovery: New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

Hire a criminal defense attorney that makes demands, pursues evidence, investigates the case and does more than consult a discovery checklist when the law changes in New York State:

Criminal defense attorneys should utilize discovery demands in 2020. While most people are aware of the sweeping criminal justice reforms that take effect on January 1, 2020, most defense counsel do not file demands in this County.

Of particular import here is the mandate that the prosecution shall not be deemed ready for trial for purposes of Criminal Procedure Law (CPL) § 30.30 until it has filed a proper certificate absent an individualized finding of exceptional circumstances. CPL § 245.20(2) requires that the prosecutor take affirmative steps to cause records to be made available for discovery where such records exist but are not within their control. Within CPL § 245.20 is a list of records/information that should be provided without a written demand by defense counsel. CPL § 245.55 states that all records in the possession of New York State or local police agencies shall be deemed to be within the possession of the prosecutor. While the reforms are sweeping, changing bail altogether and regularly exposing witness information and grand jury minutes to defense counsel, this article focuses on preservation, obtaining such material and demanding compliance with the constitutional mandate imposed by Brady v. Maryland.

Brady v. Maryland

Over half a century later, Brady v. Maryland is still good law yet continued Brady violations highlight the enormous social impact of certain prosecutors yet complete lack of accountability for prosecutors who withhold exculpatory evidence. “New York state has had 234 cases since 1989 in which defendants have been exonerated, according to The National Registry of Exonerations. Eighty-eight involved the withholding of exculpatory evidence.”[i] It is no wonder that the law changed as the New York State Justice Task Force stated that “there currently is a public perception that misconduct (particularly prosecutorial misconduct) is prevalent in the criminal justice system and that responsible attorneys are not being appropriately disciplined.”

Prior to these reforms, irrespective of the defense counsel’s request, “[t]he prosecution is required to disclose information that is both favorable to the defense and material to either defendant's guilt or punishment.”[ii] Brady v. Marlyand (“Brady”) and its progeny hold that “[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”[iii] The "prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."[iv] “By requiring the prosecutor to assist the defense in making its case, the Brady rule represents a limited departure from a pure adversary model. This is because the prosecutor's role transcends that of an adversary. The prosecutor is the representative not of an ordinary party to a controversy, but of a sovereignty... whose interest... in a criminal prosecution is not that it shall win a case, but that justice shall be done."[v]

Specific Brady Demands should be Placed in Writing

Three decades ago, People v. Vilardi, 76 NY2d 67 (1990) (“Vilardi”), the New York Court of Appeals held that greater protections were afforded to defendants in New York than that of the Federal Constitution “where the prosecutor was made aware by a specific discovery request that the defendant considered the material important to the defense” there was a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Vilardi informs defense counsel that specific Brady demands should be utilized in criminal practice and says nothing about the use of a checklist.

The criminal defense attorney’s new demand should include a litigation hold or demand for preservation of records, Brady demands, a certification of the voluntary disclosure requirements imposed upon defense counsel and discovery demands pursuant to CPL Article 245 or the Public Officers Law, depending on the nature of the prosecution and as further described below.

Public Officers Law, Freedom of Information Law (“FOIL”) Demand

Local government agencies, inclusive of the district attorney’s office, see, e.g., People v. Ulett, 2019 NY Slip Op 5060 (2019) (“Ulett”), are subject to FOIL albeit some material may be considered exempt or duplicative of the documentation to be produced voluntarily. One should note that FOIL mandates that within five (5) business days of receiving a request for a record, an agency shall either (1) make the record available to the requestor; (2) deny the request in writing; or (3) furnish a written acknowledgment of the receipt of the request with a statement setting forth the approximate date when the request will be granted or denied.[ix]

Your request for, inter alia, preservation and records should be addressed to all foreseeable entities (even non-governmental entities) involved and served in open court. Accordingly, the agency in receipt of such request should be able to explain if a particular category of record is too voluminous or contains information that will be the subject of a protective order within those five business days. If there is a denial of records under FOIL, an administrative appeal must be had prior to commencing a special proceeding under Article 78 of the Civil Practice Law and Rules. Public Officers Law § 89(4)(c) now mandates an award of reasonable attorney’s fees and other litigation costs under certain circumstances.

In this Brave New World of discovery, criminal defense attorneys just received reassurance from New York State that demanding compliance with speedy trial and the release of evidence favorable to the defense before the prosecutor can be “ready” for trial is a good thing.

While there are no police officer depositions (like other states have), criminal defense attorneys should arm themselves with something a bit more than a checklist to ensure that discovery is preserved and produced. As in the case of Ulett, sometimes a simple FOIL request can provide defense counsel with the video capturing video of the murder scene.

The best practice for traversing this new terrain is to simply file a demand to ensure the People of the State of New York comply with their requirements under the law.

Hire an attorney who does more than consult a checklist: Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

[i] Susan DeSantis, Judges Ordered to Direct Prosecutors to Turn Over Information Favorable to Defense, NY Law Journal (Nov 08, 2017 at 10:28 AM),

[ii] People v. Ulett, 2019 NY Slip Op 5060 (2019).

[iii] Brady v. Maryland, 373 U.S. 83, 87 (1963).

[iv] Kyles v. Whitley, 514 US 419, 437 (1995).

[v] United States v. Bagley, 473 U.S. 667 (1985) (quoting Berger, 295 U.S. at 88.)

[vi] People v. Rosario, 9 NY2d 286 (1961).

[vii] See, e.g., People v. Francis, 2017 NY Slip Op 50509 (App Term 2d, 11th & 13th Jud Dists), People v. Tumminello, 53 Misc 3d 34 (App Term 9th & 10th Jud Dists 2016), People v. Estrada, 2016 NY Slip Op 50036 (App Term 9th & 10th Jud Dists).

[viii] Giglio v. United States, 405 US 150 (1972).

[ix] Public Officers Law § 89 (3)(a).

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