New York Criminal Defense and Discovery in 2020

The case is People v. DeMILIO, 2020 N.Y. Slip Op 20003 (County Ct. 2020) and it answers the question, "whose discovery is it anyway?" Does the new law (New York, Long Island Criminal Defense) impact cases that were filed prior to January 1, 2020 - it does! New York Criminal Defendants have a right to that discovery even though the case was started in 2019 and the burden is on the People of the State of New York.

In People v. DeMILIO, the prosecutor took the position that the new "discovery requirements are not applicable to cases in which the People stated their readiness for trial prior to the January 1, 2020 effective date of the criminal justice reform legislation. Specifically, the People assert that there is nothing in CPL Article 245 stating that it applies retroactively. The People also assert that the Court must issue an unsealing Order before any transcripts of Grand Jury testimony can be released to Defendant."

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.

The prosecutor here answered ready but stated that it needed a court order to produce the grand jury testimony. A later argument, in this very serious homicide case, can be that the initial statement of readiness was illusory.

It has long been recognized that "broader pretrial discovery enables the defendant to make a more informed plea decision, minimizes the tactical and often unfair advantage to one side, and increases to some degree the opportunity for an accurate determination of guilt or innocence." [People v. Copicotto, 50 NY2d 222, 226 (1980)]. 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. In People v. DeMILIO the Court noted that "The newly enacted Article 245 shifts the discovery burden by placing the onus on the People to make early disclosure of a broad array of material that was previously deferred until the eve of trial, including the testimony of all witnesses who appeared before the Grand Jury." CPL §245.10.

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.

The Court in DeMILIO, supra holds that "To the extent that the People assert that an unsealing Order is required before the Grand Jury transcripts can be disclosed to Defendant, that argument is also rejected. The disclosure of those transcripts is expressly authorized (and indeed, compelled) by CPL §245.20(1)(b). Much like the production of Rosario material under the former CPL §240.45(1)(a), there is no need for an unsealing Order authorizing the statutorily-mandated production of these Grand Jury minutes." This raises the initial question of whether the People of the State of New York were ready in this murder/homicide case to start.

Criminal Defendants/Criminal Defense Attorneys should note, however, that the writing is on the wall: "Absent an application for a protective order, the People are obligated to make this initial, mandatory disclosure as soon as practicable, but not later than fifteen days after the arraignment on an indictment (subject to an additional thirty day extension that is available under certain tightly limited circumstances)" DeMILIO, supra. It is likely that Protective Orders will be issued when requested and a subset of litigation will follow.

The case is People v. DeMILIO, 2020 N.Y. Slip Op 20003 (County Ct. 2020).

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