1 BEFORE THE NEW YORK STATE SENATE
STANDING COMMITTEE ON CODES
2 ------------------------------------------------------
3 PUBLIC HEARING
4 IMPLEMENTATION OF DISCOVERY REFORM
5 (S1509 – PART LLL)
6
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7
Van Buren Hearing Room A
8 Legislative Office Building, 2nd Floor
Albany, New York
9
Date: October 28, 2019
10 Time: 10:00 a.m.
11
PRESIDING:
12
Senator Jamaal T. Bailey
13 Chair
14
15 PRESENT:
16 Senator Daphne Jordan
17 Senator Thomas F. O'Mara
18 Senator Susan J. Serino
19
20
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SPEAKERS: PAGE QUESTIONS
2
Kate Powers 16 22
3 Director of Legislative Affairs
Casandra Walker
4 Capital Region/North Country
Regional Director,
5 Intergovernmental Affairs
NYS Office of the Attorney General
6
David Hoovler 26 76
7 DAASNY President
Orange County District Attorney
8
David Soares 26 76
9 District Attorney
Albany County
10
Mary Pat Donnelly 26 76
11 District Attorney
Rensselaer County
12
Anthony Jordan 26 76
13 District Attorney
Washington County
14
Kristyna S. Mills 26 76
15 District Attorney
Jefferson County
16
Weeden Wetmore 26 76
17 District Attorney
Chemung County
18
Patrick Perfetti 26 76
19 District Attorney
Cortland County
20
Terence Kindlon 143 180
21 Attorney
Albany County
22
Sandra McCarthy 143 180
23 Attorney
Rensselaer County
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SPEAKERS (Continued): PAGE QUESTIONS
2
Kevin Stadelmaier 143 180
3 Chief Attorney
Legal Aid Bureau of Buffalo
4
Lee Greenstein 143 180
5 Attorney Private Practice,
Delmar, New York
6
Marvin Mayfield 219 251
7 New York State Organizer
Just Leadership USA
8
Justin Harrison 219 251
9 Policy Counsel
NYCLU
10
Darryl Herring 219 251
11 Community Leader
VOCAL-NY
12
Erin George 219 251
13 Civil Rights Campaign Director
Citizen Action of New York
14
Chuck Keller 219 251
15 Member, Assigned-Counsel Program
Onondaga County
16
Reverend Emma Jean Loftin-Woods 255 273
17 WESPAC Foundation
18 Khalil Cumberbatch 255 273
Chief Strategist
19 New Yorkers United for Justice
20 Dewey Bozella 255 273
Exoneree Advisory Counsel
21 Innocence Project
22 Arthur Frost 275 297
Private Criminal Defense Attorney
23 Partner, Frost & Kavanaugh Law Firm
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SPEAKERS (Continued): PAGE QUESTIONS
2
Shane Hug 275 297
3 Criminal Defense Attorney
Capital District
4 (formerly of the Rensselaer County
DA's Office)
5
Andrew Correia 275 297
6 Public Defender
Wayne County
7
George Lamarche 275 297
8 Attorney
Albany County
9
10 ---oOo---
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5
1 SENATOR BAILEY: Good morning, everyone.
2 I'm state Senator Jamaal Bailey. I'm the
3 Chair of the Committee on Codes.
4 And today is Monday, October 28, 2019.
5 We are here in an Legis -- in LOB in Hearing
6 Room A for our second hearing on the implementation
7 of the discovery reform that was in Part LLL of this
8 year's -- this year's enacted budget.
9 This is the second hearing.
10 Again, we had a hearing on, I believe,
11 September 9th, at 250 Broadway.
12 But I want to make sure that we -- because
13 the laws that we pass are statewide, and they're not
14 just downstate, we wanted to make sure we had one in
15 the Capital Region here in Albany.
16 So I -- I'm glad that I've been joined by
17 many of my colleagues from what some consider to be
18 upstate. And depending on what region you're in,
19 I don't want to be -- I don't want to be incorrect,
20 but, to my right I have Senators (sic) Daphne Jordan
21 from this immediate region, Senator Tom O'Mara from
22 a little further up, and Senator Sue Serino from a
23 little further down.
24 And I -- and I would like to ask them, if
25 you -- do you have any opening remark that you'd
6
1 like to make prior to the commencement of the
2 hearing?
3 SENATOR JORDAN: I do.
4 Thank you, Senator Bailey.
5 And thank you to my colleagues that are here
6 today.
7 And most importantly, thank you to the panels
8 that are here to testify because their input is very
9 important.
10 As has been done since January of this year,
11 irresponsible legislation has been passed time and
12 time again.
13 The Legislature saw many bills passed
14 hurriedly, resulting in new major policy for the
15 state, only to come back again to be voted in an
16 amended form.
17 There are 22 minority senators that
18 consistently raised issues, had press conferences,
19 and offered real solutions to these problematic
20 bills, all to no avail.
21 So here we are, months after the vote for the
22 bail-reform package that was stuffed into the
23 budget, only two months away from when the reforms
24 are to start, and only now having public hearings on
25 the package.
7
1 This is really backwards and irresponsible.
2 22 senators voiced varied concerns being
3 discussed in these hearings before the majorities of
4 both the Senate and the Assembly and the Governor
5 pushed these reforms through.
6 Today this hearing focuses on discovery
7 reform. Major concerns have to be discussed.
8 I hear these concerns from our district
9 attorneys, town justices, law enforcement officers,
10 and the public at large, who want to know that they
11 are protected from those that commit crimes.
12 Some of these concerns are:
13 Prematurely exposing the identity of
14 witnesses could result in an increase in harassment,
15 intimidation, and violence.
16 Discovery within 15 days of arraignment is a
17 very narrow time frame, especially in cases where
18 prosecutors are dealing with multiple police
19 agencies.
20 The defendant will have access to the crime
21 scene.
22 How are these visits going to be supervised?
23 Cost of all this?
24 DAs' offices and town justices -- town
25 justice offices need more resources to come in
8
1 compliance with these reforms.
2 Who is paying for all of this?
3 It's my hope, at the very least, that the --
4 that the discovery reforms are fine-tuned to answer
5 these concerns.
6 My real hope is that the entire Legislature
7 wake up and realize that crime victims should be
8 protected, and coddling criminals is not in line
9 with public safety.
10 And, therefore, I would hope that the entire
11 package would be repealed.
12 But thank you, and I look forward to today's
13 testimony.
14 SENATOR BAILEY: Thank you, Senator Jordan.
15 Senator O'Mara, Senator Serino?
16 SENATOR O'MARA: Yes.
17 Thank you, Senator Bailey, for having this
18 hearing today.
19 I'd just like to provide a couple opening
20 remarks for those that weren't in attendance or
21 able to watch the first hearing on this issue in
22 New York City.
23 I'm just going to paraphrase -- not
24 paraphrase, but take portions of testimony from
25 New York County District Attorney's of -- District
9
1 Attorney Cy Vance testifying.
2 I would note that, when I started my legal
3 career in 1991, I started as an assistant DA in
4 Manhattan.
5 And I could tell you that, knowing Cy Vance
6 in that office, it is not an office that is of
7 "let's lock them up as much as we can and throw away
8 the key."
9 DA Vance testified that:
10 "Everyone wants the fairest criminal justice
11 system possible for your constituents.
12 "For these reforms to be successful, district
13 attorneys' offices need access to the resources
14 necessary to implement these changes, resources that
15 far exceed what they presently have.
16 "Providing the discoverable materials, such
17 as, victims' names and witnesses; thousands of text
18 messages; medical recordings, X-rays, and other
19 imaging; insurance records; financial records;
20 historical cell-site data; search warrants for
21 computers, cell phones, photographs, surveillance
22 videos from private businesses, police units, body
23 cameras, transcript of various proceedings,
24 recordings from police body cameras; and many other
25 sources of evidence.
10
1 "Currently in Manhattan, in the New York
2 County DA's Office, more than 97 percent of cases
3 are resolved by guilty pleas.
4 "The change in this discovery rule being
5 mandated," according to the District Attorney Vance,
6 "constitutes a seismic shift in the demands placed
7 upon prosecutors, one that would render it
8 impossible to comply without an increase in
9 resources.
10 "Full discovery will increase in
11 approximately 32,000 additional cases annually just
12 in New York County.
13 "New York County estimates that they will
14 need an increase in personnel and technology
15 resources, amounting to well over $20 million each
16 year."
17 DA Vance states that, "The most efficient
18 and, indeed, perhaps the only practical way for our
19 offices to meet these demands, is to create an
20 e-discovery platform that will allow us to promptly
21 deliver discoverable materials to the defense."
22 Further he goes on:
23 "We must also ensure witness safety and the
24 cooperation of witnesses.
25 "This change is a change that, undoubtedly,
11
1 will dissuade witnesses who live in all
2 neighborhoods from reporting crime or agreeing to
3 testify as witnesses.
4 "Without adequate resources, we simply will
5 not be able to comply with this."
6 And another of our more progressive counties
7 in state, from the Brooklyn County District
8 Attorney, Eric Gonzalez, at the September hearing:
9 "It remains clear to us, that despite our
10 diligent good-faith efforts, we simply do not have
11 the necessary resources to fully and effectively
12 comply with the new law's mandates.
13 "We will be required to provide discovery in
14 thousands more cases than we currently do.
15 "We need the resources to implement it.
16 "We know that we do not currently have the
17 human resources or the technical capabilities to
18 fully comply with the law.
19 "We will need additional funding for:
20 "Additional paralegals and attorneys who will
21 be needed to handle the discovery in thousands more
22 chases;
23 "Technology experts to download, process, and
24 review thousands of hours of electronic recordings,
25 including police body-worn camera footage;
12
1 "Investigators and analysts to review
2 financial documents and other complex materials;
3 "Victim advocates and interpreters to work
4 with victims and witnesses whose contact information
5 must be turned over;
6 "And grand jury reporters to turn over the
7 grand jury minutes much more quickly in
8 substantially more cases.
9 "And with the additional staff, there comes
10 for the need for more physical space in our office
11 building, and more computers and other supplies, for
12 the new employees.
13 "Any new legislation must provide meaningful
14 protection for victims and witnesses, and not create
15 a chilling effect on their willingness to testify in
16 prosecutions.
17 "Again, we need a secure online portal
18 through which the defense may contact witnesses in a
19 manner that does not reveal their personal
20 identifying information."
21 That's just from two of our largest district
22 attorneys' offices in the state, with considerable
23 resources and staffs at the present time.
24 Having worked in the Manhattan DA's Office,
25 I know that full well.
13
1 Further, in my career, I went on to be an
2 assistant district attorney in Chemung County, and
3 the district attorney of Chemung County, a much
4 smaller office, with much smaller resources that
5 will be stretched beyond limits.
6 In most -- I would say every county in this
7 state cannot possibly meet these demands within a
8 15-day requirement period.
9 So I'm hopeful that some changes do come out
10 of these hearings we're having.
11 And again I thank you, Senator Bailey, for
12 having these hearings.
13 SENATOR BAILEY: Thanks, Senator O'Mara.
14 Senator Serino.
15 SENATOR SERINO: ((Microphone off.)
16 Yes.
17 Good morning, and thank you, Senator Bailey.
18 My name is Senator Sue Serino --
19 Is that on?
20 SENATOR BAILEY: Turn the microphone on.
21 SENATOR SERINO: Oh, sorry.
22 SENATOR O'MARA: Yeah, it's on.
23 SENATOR SERINO: (Microphone on.)
24 Okay. Sorry about that.
25 And once again, thank you, Senator Bailey.
14
1 My name is Senator Sue Serino, and
2 I represent the 41st Senate District, which covers
3 most of Dutchess County and part of Putnam County.
4 And I'm here today because many members of
5 the law enforcement and legal community have
6 expressed grave and sincere concerns to me regarding
7 this new law.
8 While we wish more in-depth hearings like
9 this were held before such a significant piece of
10 legislation was passed, I'm glad we are here today
11 so that these concerns are entered into the record.
12 It is my hope that the voices of those who
13 have to deal with these cases each and every day are
14 truly heard and their concerns are effectively
15 addressed, because I'm sure we can all agree that,
16 while reform is important, our top priority needs to
17 be public safety.
18 I'd like to once again thank you,
19 Senator Bailey. I know that you have worked very
20 hard on these issues.
21 And I'd like to thank the witnesses, most of
22 all, because I know what a feat this is to be here
23 today with your very busy schedules.
24 Thank you.
25 SENATOR BAILEY: Thank you, Senator Serino.
15
1 And -- and, again, there -- there is no
2 secret in this room that I disagree with my
3 colleagues, but I respect them greatly. And
4 I really appreciate them taking the time out of what
5 is a really busy off-session month in their
6 respective districts to come down here and ensure
7 that -- that they are playing a role in -- in -- in
8 shaping policy.
9 So to my colleagues, I -- I -- I thank you
10 for coming here and -- and -- and expressing your
11 opinions.
12 And, again, we -- we may agree to disagree in
13 substance, but the dialogue is always appreciated
14 and -- and expected.
15 So some -- some ground rules for the -- for
16 the testimony.
17 And -- and -- and I would ask that, because
18 we have -- I assume that we're going to have some --
19 some question-and-answer period, that -- that if we
20 can do our best to not read from the testimony, if
21 we could, I guess, distill our testimony into a
22 5-minute period, and allow the greater time to be --
23 to have conversations about your testimony, a
24 5-limit minute (sic) for each question -- not
25 each -- each participant, not per panel.
16
1 So each individual that is testifying will
2 have 5 minutes to testify, followed by a 10-minute
3 Q&A period.
4 We can be -- sometimes we can be flexible
5 with the time, but I'd ask that -- that we also
6 be -- be mindful of the time.
7 Also, please keep our comments ger -- germane
8 to discovery.
9 I see conversations and written testimony
10 about bail.
11 This is a discussion on discovery.
12 I would like for us to dis -- to discuss
13 discovery, because there is enough to speak about
14 with just discovery reform.
15 With that being said, I want to thank again
16 my colleagues for -- for coming.
17 I want to mention, the -- the -- the ranking
18 member of the Codes Committee, Senator Andrew Lanza,
19 who is not present, but I know his chief of staff,
20 John, is. And I wanted to thank him for -- for --
21 for sending him.
22 And with that being said, our first witness
23 will be Ms. Kate Powers from the New York State
24 Office of the Attorney General.
25 DA KATE POWERS: Good morning.
17
1 My name is Kate Powers, and I'm joined by
2 Cassandra Walker, from -- also from the office of
3 the Attorney General, Leticia James.
4 Thank you, Chairman Bailey, and members of
5 the Senate Codes Committee, for the opportunity to
6 speak before you today.
7 This Senate came into office in 2019 with a
8 mandate to finally undertake long-stalled steps to
9 mend our broken criminal justice system.
10 You more than fulfilled that charge, passing
11 landmark reforms, from the elimination of cash bail
12 in the majority of cases, to sweeping criminal
13 discovery reform.
14 The Attorney General applauds that work,
15 and thanks you for bringing us together for what
16 we hope will be a productive discussion about
17 implementation.
18 The Attorney General is aware that a number
19 of district attorneys, as well as law enforcement
20 and defense organizations, have come before you, and
21 will continue to come before you today, to request
22 significant funding increases.
23 Our office is providing testimony today to
24 say that we strongly support these requests, and
25 urge you to account for these needs in the coming
18
1 2020 budget.
2 Throughout her career, the Attorney General
3 has fought for measures to build trust between
4 law enforcement and the communities they serve.
5 She believes the vast majority of police
6 officers and prosecutors are dedicated public
7 servants who seek only to achieve the just result.
8 But when systemic flaws continue to lead to
9 unjust outcomes, even in instances where everyone
10 operated with the best of intentions, it means we
11 must change the system.
12 Our criminal-discovery regime was one of the
13 most glaring such flaws.
14 Until this past year, New York State had the
15 distinction of being one -- only one of a handful of
16 states with a "Blindfold Law," which allowed
17 prosecutors to withhold key evidence until the very
18 eve of a trial.
19 Even if many prosecutors' offices did not
20 take full advantage of this legal "blindfold," it is
21 unacceptable that this sort of evidence withholding
22 was permissible under the laws of this state.
23 Moreover, it does not require malice or
24 pushing discovery delays to the limit to bring about
25 an unjust result.
19
1 Failure to provide sufficient information
2 before accepting a guilty plea is often enough to
3 create a miscarriage of justice.
4 For callous individuals caught up in the
5 justice system, therefore, reforming criminal
6 discovery could mean the difference between liberty
7 and confinement, wrongful conviction, and the right
8 result.
9 Just because discovery reform was the right
10 thing to do, it does not mean its implementation
11 will be easy.
12 Complying with the new rules will require
13 more funding for staff, technology, and logistics.
14 We also have to support and work closely with
15 law enforcement and accredited laboratories because
16 they will be in possession of many of the required
17 materials, and we'll need their help to meet the new
18 deadlines.
19 Just as importantly, it is not just
20 prosecutors and police that will need more funding
21 under these reforms.
22 Public defense organizations will need to
23 significantly expand their personnel and
24 information-storage capacities in order to give
25 their clients the represented -- the representation
20
1 they deserve under the new law.
2 We understand the negotiations over the
3 changes were contentious, and these concerns still
4 remain, but we share a common interest in ensuring
5 that this law is implemented in a timely manner that
6 is consistent with the objectives of the law.
7 Based on the experience of our office,
8 prosecutors around this state are doing their utmost
9 to meet its obligations however difficult the
10 challenge is.
11 But the challenges of compliance are real for
12 smaller offices with only a handful of attorneys for
13 an entire county. Complying with this law really
14 may require doubling their support staff.
15 For the largest offices with the biggest and
16 most complex caseloads, compliance really may mean
17 investment in the double-digit millions.
18 It is also likely that storage costs will
19 compound in the coming years, as materials will need
20 to be kept long after a trial is over.
21 Each office has thought carefully about its
22 own needs and capacity, and we urge you to work with
23 them to ensure that adequate funding is provided in
24 this year's budget, and going for -- forward.
25 The office of the attorney general does not
21
1 have a criminal caseload comparable to those found
2 in New York's larger counties, nor are our
3 challenges with initial compliance under the status
4 quo as daunting as those faced by less-populous
5 understaffed counties. But even our office will
6 need a significant infusion of resources in order to
7 do justice to this new law.
8 We will likely need to hire approximately
9 20 new staff members, and make an immediate outlay
10 of 500,000 to meet our e-discovery needs, followed
11 by 9.7 million in investments in the coming years.
12 While we have common concerns and common
13 goals, the needs of each office are unique.
14 For instance, while the volume of our cases
15 is not large, many of them are white-color
16 prosecutions with large records and significant
17 storage requirements.
18 Many of the cases undertaken by our
19 organized-crime task force come from long-term
20 investigations, involving wiretaps and video
21 surveillance, which require massive amounts of data
22 storage to keep and transmit.
23 Every office will have its own specific
24 needs, and it is vitally important to ensure every
25 office be given voice to these needs.
22
1 New York has an opportunity to demonstrate
2 that these reforms, and progressive prosecution,
3 more generally, deliver justice while preserving law
4 and order.
5 Passing these laws was the first step in the
6 process.
7 The next step is for us to all work
8 together -- the Legislature, Executive, prosecutors,
9 public defenders, and the rest of us who play a part
10 in the criminal justice system -- to ensure that the
11 resources -- we have the resources we need to
12 properly implement these reforms.
13 Thank you again.
14 I'm happy to take questions and take the
15 questions back.
16 I will not able to respond to questions this
17 morning, but I could take them back, and we would
18 promptly get back to you.
19 SENATOR BAILEY: Sure.
20 So the -- the -- well, first and foremost,
21 thank you for your testimony.
22 The first question that I would have would
23 be, I guess, is just stating something that --
24 that's in your testimony.
25 So Attorney General James and the office is
23
1 in favor of the reform, but there are concerns of
2 implementation.
3 So there are no concerns with the sentiment
4 of the reform; that this was the right thing to do
5 in the eyes of the attorney general.
6 Would that be something that I would be
7 correct in stating?
8 DA KATE POWERS: That is correct.
9 SENATOR BAILEY: Okay.
10 But there are concerns about implementation?
11 DA KATE POWERS: That's correct.
12 SENATOR BAILEY: Okay. So -- and I -- and
13 I -- and I thank you for that, because these
14 hearings were born out of conversations that
15 happened, that the criminal justice roundtables that
16 I hold in my district office.
17 And Attorney General James came to one of my
18 district attorney -- took -- came -- came there,
19 along with District Attorney Darcel Clark and
20 District Attorney Anthony Scarpino.
21 And there were conversations about concerns
22 concerning implementation; that, reform was passed,
23 but we have concerns -- concerns about
24 implementation.
25 So those are the reasons that are born out
24
1 them.
2 So I just wanted to thank Attorney
3 General James for coming to the roundtables and for
4 voicing this prior to today's date.
5 So, I don't have anything further because
6 that -- that's kind of all I have.
7 Do any of my colleagues have questions for
8 Ms. Powers?
9 Seeing none -- oh, Senator O'Mara.
10 SENATOR O'MARA: Thank you for being here
11 with us this morning.
12 You mentioned that you would need an initial
13 immediate outlay of a half a million dollars to meet
14 your e-discovery needs.
15 Can you describe what e-discovery you
16 currently have in place at the AG's office, and what
17 more you need to do to comply with this legislation?
18 DA KATE POWERS: I'd be happy to get back to
19 you with an answer to that.
20 SENATOR O'MARA: Your testimony fails to
21 discuss any aspects of disclosure of witnesses'
22 names, identifications.
23 What is the Attorney General's position, and
24 any concerns over witness intimidation that will
25 result from the early release of this information?
25
1 DA KATE POWERS: Again, I'm happy to get back
2 to you.
3 I'm not the substantive expert in our office.
4 And we'd be happy to provide you with a
5 prompt response to your questions.
6 SENATOR O'MARA: Okay.
7 Can you explain to us why Attorney
8 General James did not send someone here today
9 with substantive knowledge of the Attorney General's
10 position on these issues?
11 DA KATE POWERS: I'm sorry, Senator. I was
12 available to testify, and she did want to make sure.
13 This is a very important issue to her, and,
14 you know, she did want to send somebody.
15 And, again, we will promptly respond to your
16 questions.
17 SENATOR O'MARA: And she didn't have anybody
18 with substantive knowledge of this issue to send
19 today?
20 DA KATE POWERS: I'm sorry, Senator. I was
21 available.
22 SENATOR O'MARA: Thank you.
23 SENATOR BAILEY: Senator Serino.
24 SENATOR SERINO: None at this time.
25 SENATOR BAILEY: Seeing nothing further,
26
1 I thank you for your Ms. -- for your testimony,
2 Ms. Powers.
3 DA KATE POWERS: Thank you.
4 SENATOR BAILEY: The next panel will be the
5 panel of district attorneys:
6 Mr. David Hoovler, the DA of Orange County,
7 and also the president of the District Attorney
8 Association of the State of New York;
9 Mr. David Soars, the Albany County District
10 Attorney;
11 Ms. Mary Pat Donnelly, the Rensselaer County
12 District Attorney;
13 Mr. Anthony Jordan, the Washington County
14 District Attorney;
15 Ms. Kristyna Mills, Jefferson County District
16 Attorney;
17 Weeden Wetmore, Chemung County --
18 Is that right, Mr. -- Senator O'Mara?
19 SENATOR O'MARA: Chemung, yes.
20 SENATOR BAILEY: -- Chemung County District
21 Attorney;
22 And, Patrick Perfetti, Cortland County
23 District Attorney.
24 I have no preference in the -- in the -- in
25 the order that you are testifying, but just prior to
27
1 your testimony, if you would indicate who you are
2 for the record before you commence testimony.
3 And -- and -- and I thank you all for taking
4 time out of your incredibly busy schedules to come
5 up here and testify.
6 DA DAVID HOOVLER: Good morning, Senators.
7 Good morning, Senator Bailey.
8 Thank you again for giving us the opportunity
9 to be here.
10 My name is David Hoovler. I'm the district
11 attorney of Orange County, and also the president of
12 the District Attorneys Association.
13 I'll be very brief, since I've already
14 appeared in front of the Committee earlier at the
15 first hearing in New York City last month.
16 Today we are here, and you'll be hearing from
17 some of my upstate colleagues, about how these laws
18 will impact our offices.
19 Many district attorneys who are here today
20 are from smaller counties, and from counties with
21 fiscal and budget situations that may not be as
22 strong as some of our downstate colleagues.
23 In upcoming months, I urge you to continue
24 these conversations so we can all work together to
25 help find solutions that will allow these new laws
28
1 to be successful for our entire state.
2 As I have previously stated, I believe these
3 reforms are well-intentioned, well-meaning, and were
4 needed.
5 After the last hearing, I conveyed a
6 discovery summit, and invited the district attorneys
7 from small and midsize counties north of New York
8 City.
9 I wanted these prosecutors to be able to
10 share ideas and exchange information and concerns
11 with each other.
12 We had a frank and purposeful discussion
13 about how these laws will impact our counties,
14 particularly the upstate counties.
15 Every single office in attendance is
16 concerned about the implementation of these laws by
17 their police departments, as well as the New York
18 State Police.
19 Most offices were concerned with workflow and
20 compliance by laboratories.
21 We are also extremely concerned about how to
22 prosecute Vehicle and Traffic Law infractions with
23 the new discovery requirements related to these
24 cases.
25 Under the new law, all discovery relating to
29
1 a Vehicle and Traffic Law case will have to be
2 turned over within 15 days.
3 This includes 911 calls, police radio
4 transmission, police reports, body-worn cameras, and
5 other items that relate to a simpic -- simple
6 traffic stop.
7 I cannot stress enough how the process of
8 obtaining and preparing discovery for exchange is
9 extremely labor-intensive.
10 Smaller offices with fewer ADAs and
11 investigators will be at a significant disadvantage.
12 And in some offices, even these tasks are
13 delegated to the local towns and villages who employ
14 their own lawyers.
15 To begin to even try to comply with these
16 laws will require a completely new process and
17 management staff.
18 I learned that governments of many smaller
19 counties do not have the resources to adequately
20 fund the requests that are being made by local
21 district attorneys.
22 I can assure you that all of our offices are
23 doing our best to prepare and carry out these laws
24 best we can.
25 After these discussions, I am not confident
30
1 our offices will be anywhere near being adequately
2 funded.
3 As we've been doing all along, prosecutors
4 will continue to engage in careful planning because
5 we know we will ultimately be responsible for
6 carrying out these laws.
7 However, many of our upstate offices feel
8 like our state government is not listening.
9 I just recently read, New York City received
10 $391 million to implement -- to implement criminal
11 justice reforms.
12 I can tell you, in my county, I will not get
13 anything close to that, and every dime that I get in
14 my county will be a fight.
15 We are concerned about the state labs that
16 are already at capacity, and whether they will be
17 able to expand and test more evidence more quickly
18 and in more cases.
19 My colleagues are concerned about how they
20 will review and redact body-worn camera footage.
21 They are concerned about how they will obtain
22 documents in a timely manner from multiple police
23 departments in different formats, and how they will
24 provide this information to defense attorneys.
25 My fellow prosecutors are faced with the
31
1 important task of keeping victims and witnesses safe
2 under the new laws that will disclose their names
3 and addresses much -- much earlier in a case.
4 Many residents in these small counties have
5 already voiced their concerns about victim safety.
6 There is a real need for funding for
7 pre-trial services outside of New York City, such as
8 in my county, Orange County, only 70 miles from New
9 York City, that has virtually no pre-trial services
10 available, such as pre-arraignment diversion.
11 Please listen carefully to my fellow
12 prosecutors here today, and try to get a really good
13 picture of how these laws will play out in the
14 smaller counties.
15 The ultimate success of these laws depend on
16 prosecutors being able to comply with them.
17 We are asking for help; we are asking for
18 help for our local governments from you and the
19 Governor.
20 I ask that you look carefully at what we are
21 presenting.
22 Thank you.
23 SENATOR BAILEY: Thank you, David.
24 And also to my -- to my colleagues, the way
25 that we're -- we've been running hearings, and
32
1 I think we're going to stick to the format, we are
2 going to permit all of the panelists to testify
3 prior to your question-asking.
4 So I just want -- I would just ask you to
5 hold your questions for each individual as we come
6 to a -- the question-answer period.
7 Thank you, David, for your testimony.
8 Whoever is next, please just say -- you know,
9 please step on up, and just indicate who you are
10 prior to your testimony.
11 Thank you again.
12 DA WEEDEN WETMORE: Good morning.
13 I'm Weeden Wetmore, the Chemung County
14 District Attorney.
15 The role of a prosecutor is to seek justice,
16 to do the right thing.
17 The new discovery laws, although obviously
18 passed with the good intentions of leveling the
19 playing field for the accused, will, because of
20 their broad application to all charges filed, and
21 because of the short time constraints, divert
22 district attorneys and their assistants from seeking
23 justice, to seeking discovery materials.
24 I have worked as a prosecutor in the district
25 attorney's office for over 31 years; 20 years as a
33
1 full- or part-time assistant district attorney, and
2 now almost 12 years as the elected district
3 attorney.
4 I have seven full-time and three part-time
5 assistant DAs on my legal staff.
6 We appear daily in Chemung County Court
7 before two county court judges and in Elmira City
8 Court before two city court judges.
9 The assistant district attorneys appear
10 weekly in 14 village and town and justice courts
11 throughout the county.
12 We prosecute, annually, over 2,000 criminal
13 cases, of which 25 percent start out as felonies and
14 75 percent is misdemeanors.
15 Generally, of the more than 500 persons
16 initially charged with felonies, we obtain
17 indictments or superior court Informations against
18 approximately 300 of those defendants.
19 Of those defendants indicted, many plead
20 guilty after receiving their requested discovery
21 materials, following motion practice.
22 Others plead guilty after challenging the
23 admissibility of evidence at pre-trial hearings.
24 The balance of some 35 to 50 cases move to
25 our county trial calendars, after which more
34
1 defendants plead guilty, and we are left with
2 approximately 10 to 15 cases that go to trial.
3 The new discovery rules will require in all
4 cases where felonies are charged, whether indicted
5 or not, even more discovery than was provided in
6 trial cases in the past.
7 Those mandated discovery materials will
8 oftentimes include items that will be neither
9 relevant nor material to the defense of the case.
10 For example, assume the following facts:
11 An 18-year-old defendant, with little or no
12 criminal history, is arrested by the police in the
13 act of committing a burglary, and he confesses.
14 Under the present discovery rules, we would
15 resolve that case quickly and fairly, expeditiously,
16 after providing defense counsel with a copy of
17 defendant's confession, and offering the defendant
18 an opportunity to plead guilty to burglary, be
19 adjudicated a youthful offender, and sentenced to
20 probation.
21 Undoubtedly, that plea bargain would be
22 accepted and the case closed out quickly.
23 By contrast, under the new discovery laws, we
24 must automatically provide within 15 days, among
25 other materials, items such as radio transmissions,
35
1 whether needed by the defense or not; 911 calls,
2 whether needed or not; grand jury transcripts of
3 witnesses, whether needed or not.
4 Should defense counsel initially ask for a
5 two-week adjournment for his client to consider the
6 aforementioned plea offer, our office would still
7 have to begin gathering all of the automatic
8 discovery materials, as the 15-day clock is ticking,
9 within which time we must gather those materials,
10 and then file a certificate of compliance with the
11 new discovery provisions, or face the risk of not
12 being ready for trial.
13 Common sense suggests that too much time will
14 be spent complying with the new discovery laws,
15 whereas, such time could be spent better seeking
16 justice in other cases requiring more attention.
17 For example:
18 An assistant district attorney in my office
19 may wish to conduct legal research in a
20 drug-possession case to determine whether the
21 defendant's constitutional rights were violated, or
22 whether the defense of agency applies;
23 In an assault case, he may wish to research
24 the issue of self-defense under the law of the
25 justification;
36
1 He may wish to consider the defense of
2 renunciation, where the police charge a defendant
3 with an attempt crime rather than a completed one.
4 In certain crimes involving the influence of
5 drugs or alcohol, an assistant district attorney may
6 wish to consider extending mercy to a defendant due
7 to those underlying circumstances.
8 We will still expect the prosecutor in my
9 office to perform these functions, notwithstanding
10 the new discovery laws, but his workload will
11 increase exponentially due to his need to comply
12 with the automatic discovery rules.
13 In the Elmira City Court, in the town and
14 village courts, where approximately 1500 misdemeanor
15 charges are addressed, we presently have an
16 open-file policy of discovery; meaning, that we
17 generally give defense counsel access to everything
18 in our file if and when they ask for it.
19 The exchange takes place in only
20 approximately 30 percent of all misdemeanor cases
21 filed, as instead, many defendants choose to plead
22 guilty to the charge filed, or a reduced charge
23 after receiving an accusatory instrument and
24 supporting depositions, rather than full-blown
25 discovery materials.
37
1 However, the new automatic discovery laws
2 would require my assistant district attorneys to
3 produce the mandated discovery materials in
4 all 1500 misdemeanor cases within 15 days of
5 arraignment.
6 And that's generally speaking.
7 We agree that full discovery is sometimes
8 needed to make an informed determination before a
9 defendant enters a plea of guilty, but, oftentimes,
10 the automatic discovery materials may not be
11 necessary for the defense to proceed, and, thus,
12 never even reviewed by counsel or the defendant in
13 the first place.
14 We have no problem in providing discovery
15 materials when requested by the defense. But many
16 of these defendants can make informed determination
17 without reviewing all such discovery materials,
18 especially where adequate counsel represents them.
19 Having to comply with the new automatic
20 discovery provisions will not resolve the cases more
21 fairly for a defendant, but, instead, will be more
22 time-consuming, and will utilize the resources of my
23 office less efficiently, as well as the resources of
24 the court system.
25 Complying with the new discovery laws as they
38
1 apply to criminal cases alone will substantially add
2 to the caseloads of attorneys in my office.
3 However, the discovery reform laws also apply
4 to all cases where a simplified Information is
5 filed, such as a vehicle and traffic ticket.
6 Last year there were 17,711 traffic tickets
7 issued in Chemung County.
8 Requiring my assistant district attorneys to
9 gather discovery materials within 15 days of
10 arraignment on all of these tickets, and then to
11 issue a certificate of compliance on each ticket,
12 will be extremely burdensome.
13 Such practice would call for the issuance of
14 over 48 certificates of compliance daily, even if my
15 staff worked for a full 365 days a year.
16 Although the prosecution of traffic cases in
17 2018 in just our town and village courts generated
18 over $2 million in revenue, of which the State share
19 was $1,461,473.48, I cannot envision my staff, as
20 presently constituted, as able to comply with the
21 new discovery laws as they apply to vehicle and
22 traffic violations.
23 Obviously, to fully comply with new CPL
24 Article 245 will require more resources in my office
25 in terms of both equipment and staff. Additionally,
39
1 more office space will be needed to accommodate
2 additional personnel.
3 Although the public defender's office and the
4 public advocate's office is in Chemung County, will
5 receive grant money, not from the County, grant
6 money, however, that totals over $3 million between
7 2018 and 2022, my office will receive no such aid
8 from the State to help us defray the cost of
9 implementing the discovery reform laws.
10 I realize the goal of this new legislation is
11 to afford defendants with a full opportunity to
12 evaluate the evidence against them in any given
13 case.
14 However, I believe that purpose can still be
15 accomplished in criminal cases if the law is amended
16 to expand the 15-day time limitation for automatic
17 discovery to 45 days.
18 The additional 30 days would not prejudice
19 the defendant, and would still provide discovery
20 well in advance of any proposed disposition or trial
21 date.
22 Further, during that extra 30 days, the
23 parties could negotiate the case, try to resolve the
24 case, with an appropriate bargain that seeks justice
25 for both.
40
1 As for automatic discovery where defendants
2 appear on simplified Information, such as the
3 vehicle and traffic violations, the law should be
4 eliminated.
5 To comply with automatic discovery in such
6 cases is not practicable in light of the time
7 prosecutors must spend on discovery in criminal
8 cases.
9 I have chosen to address practical problems
10 I anticipate affecting my office's ability to comply
11 with the criminal justice reform laws as they apply
12 to pre-trial discovery.
13 However, I hasten to add that there are other
14 troubling aspects of the law.
15 One is the obvious conflict that arises when
16 one considers, presently, the present law,
17 Section 190.20, subdivision 4(a) of the CPL, which
18 states, "grand jury proceedings are secret."
19 One reason for secrecy is for the safety and
20 security of witnesses.
21 I believe the release of grand jury
22 transcripts well in advance of trial will have a
23 chilling effect on certain witnesses coming forward
24 to testify, as they will be concerned with
25 intimidation.
41
1 No longer can we assure them that their
2 identities and testimony will remain secret and not
3 revealed unless absolutely necessary.
4 The chilling effect of this reform certainly
5 does not assist prosecutors in seeking justice in
6 all cases.
7 I hope I've given you some information to
8 consider as you proceed with your responsibilities.
9 Thank you for affording me this opportunity
10 to address you.
11 SENATOR BAILEY: Thank you, District
12 Attorney Wetmore.
13 I would ask that we, even if -- even if you
14 can't get to five minutes, could we get to six, max?
15 Could we distill something?
16 In law school, we IRAC'd everything. Right?
17 Yeah, let -- let -- let -- let's break it
18 down a little bit.
19 Your -- your -- your -- your written
20 testimony has been received. And I want make sure
21 that we have significant time for the
22 question-and-answer period. That -- that's --
23 that's something that's more --
24 DA WEEDEN WETMORE: I apologize to
25 Senator Bailey.
42
1 SENATOR BAILEY: No, no.
2 No, no need to apologize.
3 I just want to see if we can -- see if we can
4 break it down.
5 The next district attorney to testify.
6 DA KRISTYNA S. MILLS: Good morning.
7 Is this on? Can you hear me?
8 SENATOR BAILEY: Yes.
9 DA KRISTYNA S. MILLS: Okay.
10 My name is Kristyna Mills. I'm the district
11 attorney in Jefferson County.
12 And, again, thank you for allowing us the
13 opportunity to speak with you this morning.
14 First, just a little bit about my county and
15 the efforts that we've made to comply with the new
16 discovery laws.
17 We are a relatively small county of
18 approximately 114,000 people. We border Canada,
19 across the St. Lawrence River. And we house Fort --
20 we house Fort Drum, which is a large military base
21 that employs approximately 18,000 people.
22 The Jefferson County District Attorney's
23 Office employs 11 attorneys, including myself.
24 We all handle full case loads.
25 We prosecute everything, from felonies, down
43
1 to violations and traffic infractions, that occur
2 within our county.
3 We work with many agencies.
4 We prosecute military personnel, for which we
5 have concurrent jurisdiction with Fort Drum.
6 And we prosecute many border prosecutions
7 that are investigated by Immigration and Customs
8 Enforcement or border patrol.
9 Our assistant district attorneys have an
10 average caseload of approximately 350 cases open at
11 any given time.
12 We also handle all of our own appeals and
13 post-judgment motions, which do not factor into the
14 open cases that we currently handle.
15 We also have traffic infractions.
16 I said numbering in excess of 5,000.
17 That number is significantly greater than
18 5,000.
19 We handle about 5,000 reductions alone a
20 year. That does not include every single traffic
21 offense.
22 In attempting to comply with the new
23 discovery laws, Jefferson County, we've been ahead
24 of the curve.
25 More than a year ago we began asking the
44
1 police agencies to send their entire file to us
2 digitally.
3 We have 12 police agencies in our
4 jurisdiction, and some have the technology to do
5 that, some don't.
6 In April, after the passage of the reforms,
7 we began the process of going paperless.
8 We upgraded our technology and began using
9 digital evidence system for the transfer of
10 discovery to defense counsel and the courts.
11 This has not been an easy transition.
12 Not all defense counsel has been receptive to
13 this new way of transferring evidence. And we've
14 had difficulties with the technologies and all
15 parties to the system, from the police, to the
16 courts, to the defendants.
17 It has been an extreme challenge finding the
18 resources to upgrade our computer systems and give
19 our legal staff the tools that they need to comply
20 with the changes bearing down on us.
21 We have held nearly a dozen trainings and
22 in-services to educate law enforcement on the new
23 laws, and we have a half a dozen more scheduled.
24 In October, we began attempting to comply
25 with the new discovery provisions, as if it was
45
1 January 2020, on all felony cases.
2 It has been extremely difficult to keep up
3 with the duties of prosecution when a great deal of
4 our time is spent trying to compile and turn over
5 far more discovery than we have ever received, and
6 far more cases than we ever needed to before.
7 We will attempt to start complying with the
8 new legislation on misdemeanors and violations next
9 week.
10 I harbor no illusions that we will be able to
11 maintain our current prosecution standards, and
12 I fear cases will start falling by the wayside at
13 our current staffing level.
14 I anticipate being permitted to increase my
15 staff by one ADA in the upcoming budget year.
16 While this will undoubtedly be of a help,
17 I am concerned this is a mere drop in the bucket in
18 order to be in full compliance with these laws.
19 While we have made great strides, I fear that
20 we may have miles to go with very little time left.
21 We are experiencing extreme difficulty
22 getting our police agencies to comply.
23 We are imputed to know everything they know
24 under these laws, yet we are having trouble getting
25 them to tell us what they know within that 15-day
46
1 time frame.
2 And, another difficulty that we are having in
3 my jurisdiction is our federal police agency
4 partners. They are not bound by the same laws, they
5 are not bound by the same rules.
6 And we were informed just recently, we had to
7 get a subpoena to get a border patrol file in a
8 recent DWI prosecution.
9 The military has tried to be cooperative, but
10 they have Forbes (ph.) for their forms.
11 I have little doubt that I actually know a
12 fraction of what I'm imputed to know under this
13 statute.
14 Additionally, we have currently no ability to
15 provide law radio recordings in all cases.
16 Under the current system, the law radio
17 recordings are mixed together, as all units on the
18 road are calling into the 911 dispatcher -- dispatch
19 center at once.
20 In order to separate those recordings and
21 turn over what is germane only to each and every
22 case, it requires someone to listen to all of these
23 recordings and manually pick out those related to
24 specific cases, and copy them to a single digital
25 file.
47
1 Our already-beleaguered 911 center does not
2 have the staff to accomplish this.
3 They have told me, in no uncertain terms,
4 they will not able to comply with these new laws as
5 of January 1.
6 Another issue we're facing stems from the
7 thousands of traffic infractions that we prosecute
8 each year.
9 We do not carry files on all these traffic
10 infractions. We do not even know that they exist.
11 And now we have to figure out a way to turn
12 over body-cam videos and certificates of calibration
13 into thousands of cases that we don't even know
14 about.
15 Our digital discovery system will not work
16 for those individuals because that requires an
17 e-mail address. And we don't have e-mail addresses
18 for those people that are charged with traffic
19 infractions.
20 Attempting to get law enforcement to change
21 their entire way of issuing tickets to get e-mail
22 addresses is a daunting task, and it's a task for
23 which I don't think we will have a solution by
24 January 1st.
25 The safety of our highways and the revenue of
48
1 our state municipalities will feel this loss, I have
2 no doubt.
3 Additionally, I fear that many of these laws
4 have unintentionally legalized misdemeanor-level
5 possessions of dangerous narcotics, such as heroin,
6 methamphetamine, and cocaine.
7 Overburdened labs across the state typically
8 do not test misdemeanor weight narcotics unless that
9 testing is needed for trial.
10 Under this new law, in order us for -- for us
11 to declare that we are ready for trial, arguably,
12 that testing must be completed.
13 I fear that there is no possible avenue for
14 which these labs can comply in these small cases,
15 and I fear that that is going to be a detriment to
16 the individuals that are arrested in these cases.
17 We will no longer be able to get them on
18 probation, and get them into the treatment that they
19 need, because they will have no incentive to do so.
20 So this law is hurting the very people that
21 it was enacted to help.
22 In conclusion:
23 These are some, but not all, of the concerns
24 that we are wrestling with, and we're ahead of -- in
25 terms of implementation, than some of the smaller
49
1 counties in the state.
2 Some of the counties in this state did not
3 even have prosecuting case-management systems, so
4 they had to implement that, let alone a
5 discovery-management system.
6 District attorneys' office and police
7 agencies across the state are running a losing race
8 against time to comply with these enormous changes
9 by January 1st with no funding to do so.
10 With additional time and additional funding,
11 I believe solutions could be found for these
12 problems, and law enforcement would be equipped to
13 fully comply with the statute as written.
14 Thank you for your time.
15 SENATOR BAILEY: Thank you, District
16 Attorney Mills.
17 DA PATRICK PERFETTI: Good morning,
18 Chairman Bailey and members of the Codes Committee.
19 I appear before you today out of concern
20 about the level of service that the office of the
21 district attorney may be able to provide to the
22 residents of Cortland County, which is my highest
23 priority as their district attorney.
24 Though Cortland County is a small county,
25 with a population of 49,000, and I believe, among
50
1 today's panel, I represent the smallest county of
2 those testifying today, it is a county that is
3 located between Binghamton within Broome County to
4 the south and Syracuse within Onondaga County to the
5 north, with Interstate 81 transiting the north-south
6 axis of the county.
7 This conduit of legitimate commerce does also
8 engender illicit drug trade, among other illegal
9 activities.
10 In recent months I have repeatedly shared
11 with my county legislature, and now with you,
12 information and details about the additional burdens
13 that this state's recently passed criminal justice
14 legislation presents to my office.
15 As an example:
16 The discovery statute requirements are not a
17 simple matter of turning discovery materials over to
18 defense counsel.
19 Technology can assist with this retrieval of
20 discovery materials, and I have implemented those
21 when I first took office 2 1/2 years ago; however,
22 these materials must, in every case, be reviewed.
23 This review process is not something capable
24 of automation, and still requires the gift of human
25 intellect to address.
51
1 Currently, discovery is a practice that is
2 generally engaged in in those cases that are upon a
3 trial track.
4 In 2018 my office handled 1,614 felony cases.
5 Of that total, 156 either were indicted or
6 advanced to county court on a superior court
7 Information.
8 This is a scant 10 percent, 9.67 to be exact.
9 Of that, a total of 9 cases were tried, which
10 is less than -- around 1/2 of 1 percent of the
11 total.
12 After January 1, 2020, due to the legislation
13 you've enacted, discovery returns will be required
14 in 100 percent of all filed criminal cases, to
15 include misdemeanors, as well as all vehicle and
16 traffic cases, which represents to my office tens of
17 thousands of additional cases requiring discovery.
18 This discovery must be reviewed in its
19 entirety to ensure that sensitive information, such
20 as undercover and confidential informant identities,
21 victim demographic information, and material
22 relative to law enforcement tactics and procedures,
23 are addressed in protective orders, and not
24 inadvertently or prematurely divulged.
25 This presents an increased workload for my
52
1 office staff of five assistant district attorneys
2 and four administrative support staff that can only
3 be described as astronomical, it's beyond
4 exponential. And this cannot be met by my current
5 staff.
6 It bears mentioning that Cortland -- that the
7 Cortland County District Attorney's Office is one of
8 10 of the 62 district attorneys' offices statewide
9 that is without an investigator.
10 It will amount to, literally, thousands of
11 hours of additional work per year, work that my
12 present staff, already working beyond their 35 hours
13 of compensated time, largely due to their
14 professionalism, currently cannot be reasonably
15 expected to handle.
16 For fiscal-year 2020, I made the following
17 request above my 2019 budget, solely due to the
18 changes in the criminal procedure law:
19 I've requested one assistant district
20 attorney, and that district attorney would be
21 assigned to discovery compliance.
22 To support that district attorney, I have
23 also asked for two paralegals and an additional
24 keyboard specialist.
25 The total cost, based upon my county's
53
1 current pay scale for salary, costs, and benefits,
2 would be $295,794.69.
3 In addition, I have asked for support for
4 LexisNexis computer subscriptions, additional phone
5 lines, additional publications, additional
6 computers, and additional Microsoft licenses, for a
7 total of $8,247, which would be a total cost of
8 $335,441.69.
9 Less than half-a-million-dollar increase in
10 my budget may not seem like much money in comparison
11 to the state's budget in the billions, or to
12 metropolitan counties.
13 However, Cortland County is cash-strapped,
14 with a jail that is in need of upgrading for about
15 the past decade.
16 And I have been told by the acting county
17 administrator that the Cortland County Legislature
18 is presently trying to close a 1.7-million-dollar
19 budget gap.
20 The sheriff's office and the Cortland County
21 Police Department are the two largest
22 case-generating agencies in my jurisdiction, and
23 they have case-tracking systems that are not
24 currently capable of interfacing with the district
25 attorney's office.
54
1 For those agencies not submitting
2 electronically, my office, in some instances, is not
3 receiving case files for up to six weeks after
4 arrest.
5 Certainly, this is not fast enough to comply
6 with the new discovery statute.
7 Cortland County is also at 94.6 percent of
8 its taxing authority.
9 And I am informed by the chairman of the
10 county legislature that all of my additional
11 personnel and other funding requests for 2020,
12 largely due to the criminal procedure law changes,
13 have been denied in the administrator's budget in an
14 effort to stay below the State-mandated tax cap.
15 These needed resources for my county, and my
16 county's inability to provide them, are due to the
17 fact that this piece of legislation, which was
18 inserted in the Article 7 budget process, were
19 passed by this Legislature without funding them.
20 This is irresponsible.
21 This is going to cause me to have to
22 prioritize, out of necessity, the prosecution of
23 vehicle and traffic infractions, which represent
24 some 41,000 cases in my jurisdiction.
25 I will either have to divert these to law
55
1 enforcement agencies who are writing the traffic
2 tickets, or, have them prosecuted by the municipal
3 attorneys representing the municipalities wherein
4 the offenses are alleged to have occurred, both of
5 whom I'm fairly certain are less capable of handling
6 the discovery requirements than my office, as they
7 have received no resources for this effort either.
8 Such could leave Cortland County practically
9 without traffic enforcement, except in criminal
10 matters and incidences involving fatalities,
11 personal injuries, or excessive property damage.
12 This is far less than ideal and represents a
13 clear threat to public safety.
14 New York State has, for the past 10 years,
15 enjoyed being the safest large state in the country,
16 and the fifth safest state nationwide.
17 I reluctantly predict that such will no
18 longer be the case in the near future, and such will
19 be directly owing to the actions of this Legislature
20 this year.
21 Thank you, and I'll be happy to field any
22 questions that you may have.
23 SENATOR BAILEY: Thank you, District
24 Attorney Perfetti.
25 DA MARY PAT DONNELLY: Good morning.
56
1 I'm Mary Pat Donnelly.
2 I welcome the opportunity to be heard here
3 this morning.
4 I am the Rensselaer County District Attorney.
5 I just started my first year after being
6 elected last November.
7 And let me start by saying that I do support
8 criminal justice reform.
9 Before serving as district attorney, I had a
10 perspective of sitting as a town judge in a suburban
11 community while, simultaneously, servicing as a city
12 court judge's law clerk right here in Albany, two
13 very busy, very different courts, with a lot of the
14 same faces on the other side of bench.
15 From my 21 years of experience in New York
16 State's criminal justice system, I'm into agreement
17 that we can do better to make sure that everyone
18 receives equal treatment under the law regardless of
19 race, religion, sexual orientation, or socioeconomic
20 class.
21 I ran for this office to be part of the
22 solution to that problem; however, the reforms as
23 drafted are not practical.
24 In attempting to level the playing field, we
25 are playing roulette with public safety.
57
1 There has to be a better way.
2 A defendant and his counsel should have fair
3 exposure to the prosecutor's evidence before making
4 decisions on a plea deal.
5 This is the practice in my office, and is
6 simply a matter of ethics and human decency.
7 I never want us to forget that the accused is
8 innocent until the DA meets the burden of proof.
9 And while I am for this reason a proponent of
10 open discovery, it is a fact that formal discovery
11 is not typically completed unless a case is headed
12 to trial.
13 Certainly, turning over all the material in a
14 DA's file within 15 days does not sound unreasonable
15 if you don't work in a DA's office.
16 Put your file in the copier and send it out
17 to the secretary for dissemination.
18 I assure you, it's not that simple.
19 It is extremely time-consuming, and with the
20 new additional requirements and
21 constructive-possession rules, it will become even
22 more so.
23 First of all, the DA has to ensure that we
24 have all the required paperwork from police agencies
25 before we can turn it over.
58
1 My office serves 18 municipal courts with
2 cases from 9 different police agencies.
3 In many misdemeanor cases, a defendant is
4 arraigned in a town court outside the presence of a
5 DA, and given a return date a week or two later.
6 The clock starts ticking at arraignment, but
7 the paperwork has not even made it to our office
8 yet.
9 In certain cases, such as drug arrests, an
10 investigation may be ongoing. And turning over
11 investigative material at the commencement of the
12 prosecution will undoubtedly jeopardize these
13 investigations, and the witnesses will be in danger.
14 That said, in order to comply with the
15 directives of 245, police agencies are going to have
16 to completely overhaul the way they do business.
17 Law enforcement needs time to properly train
18 personnel, and to allow for policy decisions to
19 accommodate these massive changes.
20 If the police don't fully understand their
21 obligation, even with the help that I've been giving
22 them, and if they don't have the tools to comply
23 with this requirement, our office is going to be
24 handcuffed in our ability to file a certificate of
25 compliance and to answer ready.
59
1 Cases will be dismissed, and actual
2 threatening criminals will escape penalty.
3 At the very least, I urge you to consider
4 deferring the implementation of these reforms in
5 order to give prosecutors and police departments
6 sufficient time to come together on policies that
7 will give us the best chance of complying with these
8 directives.
9 The unintended result of 245, I promise you,
10 is going to be dramatically enhanced need to triage
11 criminal cases, which we do already.
12 We will simply have to abandon prosecution on
13 those less-important cases.
14 How do I tell a victim that their case is
15 just not important enough for me prosecute?
16 I'm sorry, but your loss, your injury, your
17 humiliation, it just doesn't matter, because I don't
18 have time or manpower to do the necessary paperwork
19 to seek justice for you.
20 That's a frightening and a disheartening
21 thought.
22 It's not what I signed up for, and I know
23 that's not what any of the folks here with me today
24 would like to see happen.
25 That's why the outcry, with respect to the
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1 lack of funding, is really, really important for
2 everybody to understand.
3 Reviewing files, and ensuring that everything
4 discoverable is physically in our possession, and
5 ready to be turned over, is, literally, going to be
6 a second full-time job for every attorney in my
7 office.
8 245 also mandates disclosure of the names and
9 contact information of witnesses, as we've
10 discussed.
11 We can no longer offer witnesses peace of
12 mind by assuring them that their identity will be
13 protected.
14 Even grand jury testimony, long understood to
15 be secret, must be turned over within 15 days.
16 This will certainly result in a lack of
17 cooperation by witnesses.
18 And taking this a step further, I think it's
19 going to cause New Yorkers to think twice about
20 reporting crimes in the first place.
21 While we may have the ability to seek a
22 protective order, this, again, is more work for the
23 ADAs who are already working very hard to try to
24 seek justice in the cases that we are handling.
25 I hope that my testimony demonstrates to you
61
1 that the DAs of New York State are not simply
2 engaging in fear-mongering.
3 I very much resent that characterization.
4 When we speak of opposition to this reform,
5 it is not about resisting legislation which will
6 make our jobs more difficult.
7 It is simply that we need the funding and the
8 time to do this correctly, to protect everyone.
9 I don't want to be sitting here after there's
10 been a tragedy and we've had an opportunity to
11 rethink things.
12 I continue to believe that my fellow DAs
13 entered this calling like I did, to protect the
14 community.
15 We want to exercise our discretion and
16 ethical considerations to seek justice.
17 I honestly believe that the legislation, as
18 drafted, is going to inhibit my ability to do just
19 that.
20 Thank you for listening.
21 SENATOR BAILEY: Thank you, DA Donnelly.
22 DA ANTHONY JORDAN: Thank you.
23 I'm Tony Jordan. I'm the district attorney
24 for Washington County, and I greatly appreciate the
25 opportunity to address you folks.
62
1 And I will say, to start, much of what
2 I prepared and submitted to you has already been
3 covered at length, not only today, but at your
4 previous hearing.
5 So, a little bit of a different approach, but
6 I first want you to understand Washington County a
7 little bit.
8 It's 62,000 people.
9 It stretches approximately 90 miles, from
10 north to south.
11 The Vermont border is our entire eastern
12 border.
13 And, virtually, all of the county has little
14 to no public transportation.
15 We cover 22 local courts; 9 police agencies,
16 6 of whom are local police departments, the vast
17 majority of which cover important shifts with
18 part-time police officers.
19 In that framework, we had 2,000 crimes,
20 roughly, year in and year out, over the past
21 six years that I've been district attorney.
22 Last year we had over 10,000 vehicle and
23 traffic tickets.
24 So these -- and that -- those numbers don't
25 include violations which would be harassments,
63
1 disorderly conducts, and similar.
2 The impact of having this law reach all of
3 those on a small office, and comply with the
4 demands, much like my colleagues have expressed in
5 greater detail, is going to be nearly impossible
6 under our current physical structure and technologic
7 structure in the county.
8 What does that mean?
9 Many of our police agencies don't have the
10 technology to even -- or, have Live Scan, which is
11 the means of fingerprinting.
12 They have to do the fingerprinting,
13 essentially, manually, and then travel upwards of
14 30 miles to the sheriff's department, just to
15 complete that process, to give you a sense of the
16 rural and the technological deficiencies in our
17 county.
18 Since I became DA just about six years ago,
19 we implemented an open pol -- open-file policy,
20 which has had the effect of giving defendants
21 everything that we have, as soon as we have it, in,
22 virtually, all of our cases.
23 And the result of that has been a significant
24 number of cases getting resolved very early on, and
25 a significant number of cases being resolved within
64
1 a short period of time in -- in ways that result
2 in -- in satisfactory outcomes for the defendant
3 especially, because we pursue diversion in a
4 significant way.
5 So our budget constraints, much like others,
6 come down to this:
7 Our county, as I've showed in our submission,
8 our five union contract raises alone exceed the
9 available tax-cap number for Washington County.
10 That is before any effort at complying with
11 this law.
12 That doesn't include the public -- department
13 of public works or any other department within the
14 county and their increasing needs.
15 So any ask had to be done, where we were
16 looking for funding, in that light.
17 What I did first, was working with our
18 information technology department, sheriff's
19 department, the 911 call center, public safety, and
20 alternative sentencing and probation, was, let's
21 look at the cases that we have a firm handle on, and
22 that is the 2,000 misdemeanors and felonies, and
23 what will it cost to comply, and what will it take
24 to just honor the spirit and the -- and the writings
25 of this law?
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1 Those needs alone were well over
2 a million dollars.
3 And so, recognizing the budget constraints we
4 were under already, we took the approach of, that's
5 just not workable in Washington County.
6 What we ultimately came forward with, at a
7 bare-minimum approach from those departments
8 I referenced, was just over $400,000.
9 Our county is still going through the budget
10 process. It will be probably be December before we
11 get a final answer.
12 But the early indications are, we are not
13 going to see that money, or, certainly, nothing
14 close to what our true needs are.
15 What I would like to focus on in my remaining
16 time is, where do we have commonality, based on your
17 concerns stated at the beginning?
18 And I think I would start with that.
19 I think, like you, we here care about all
20 New Yorkers, not just those in our direct
21 constituency.
22 In your instance, the Senate districts.
23 Ours are counties.
24 That includes defendants, that includes
25 witnesses, that includes victims, and that truly
66
1 includes all New Yorkers.
2 The goal of the statute is to get defendants
3 as much discovery as exists, as soon as possible.
4 The goal of criminal justice is to protect
5 those same New Yorkers that we all care about.
6 With this in mind, I was struck, when I sort
7 of spent the last six months trying to understand
8 this law, with the stark difference between how the
9 State rolled out Raise The Age and how we're
10 addressing this statute.
11 With Raise The Age, implementation was moved
12 out a year and a half, and then phased in over a
13 two-year period.
14 With Raise The Age, the State implemented a
15 statewide task force to analyze all areas of
16 compliance. That included Governor's
17 representatives, probation, courts, corrections,
18 district attorneys, public defenders, county
19 attorneys, department of social services, and many
20 more.
21 This group, which I had the opportunity of
22 being a part of, met regularly over that period of
23 time, to develop plans, to ensure that
24 implementation of that important legislation
25 occurred properly.
67
1 I think, in large part, because of those
2 efforts, Raise The Age has been heralded as
3 a resounding success.
4 But perhaps more importantly, Raise The Age
5 also included a very important funding stream for
6 counties.
7 All the counties had to do, was submit a
8 plan.
9 If that plan was improved -- was approved,
10 all expenses that the county incurred in complying
11 with Raise The Age would be funded by the State --
12 or, refunded by the State, or covered by the State.
13 However, there was one really important
14 caveat, and as a true cynic, I suspect maybe that
15 that was not unintentional, and that is, a county
16 that exceeds the tax cap will not receive that
17 reimbursement funding for (sic) the State for Raise
18 The Age.
19 So when you couple the challenge with the
20 now-implemented and -enacted discovery, bail, and
21 its link to speedy trial, counties across
22 Upstate New York are going to be faced with two
23 simple choices:
24 Do we fund our departments sufficiently to
25 comply with this important piece of legislation, and
68
1 in doing so, exceed the tax cap and be denied
2 funding from the State for Raise The Age?
3 Or, do we ignore the important edicts of the
4 statute, deprive our departments from being able to
5 comply, resulting in ultimate dismissal of cases,
6 and be able to receive the reimbursement for the tax
7 cap, so -- under the tax cap for Raise The Age?
8 So I think, in closing, because we've taken a
9 lot of your time, I think the State needs to ask
10 itself a very important question:
11 Is the goal of the statute to ensure
12 compliance, to provide defendants with the
13 information that you have deemed is critical, which
14 we believe we want to give everything we have, we
15 want to assist them in making intelligent, rational
16 choices?
17 But if that's the true belief, then the State
18 needs to do what it did with Raise The Age, and that
19 is, fund the departments properly so that we can
20 provide the -- this important discovery.
21 And by that, that's also going to include all
22 departments: public defenders, assigned counsel,
23 probation, alternatives to incarceration, local
24 police agencies.
25 Most importantly, and let's not forget, the
69
1 state police lab that provides for probably north of
2 50 of our counties important investigative resources
3 and tools to allow the criminal justice system to
4 work.
5 So with that, I think the key is, if you want
6 compliance, we want to comply, we need funding in
7 order to be able to do that.
8 Thank you.
9 SENATOR BAILEY: Thank you, DA Jordan.
10 DA Soares.
11 DA DAVID SOARES: Good morning, and thank
12 you.
13 SENATOR BAILEY: Good morning.
14 DA DAVID SOARES: Well, we are not strangers
15 to this conversation.
16 I think we've been having a lot of
17 conversations over the course of the last year.
18 And I think that my colleagues have done a
19 fantastic job of articulating some of our concerns.
20 So my remarks will be very short.
21 My hope is that we're doing more engaging and
22 having conversations about some solutions, as
23 opposed to continuing to re-litigate the problem.
24 So if I can, I'll just -- I'll read from my
25 prepared remarks.
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1 The past several months have presented my
2 office with perhaps its most difficult challenge in
3 the 20 years that I've been there.
4 I will discuss some of those challenges here
5 today, but, again, I want to focus on discussing
6 some solutions.
7 It goes without saying that the reforms
8 passed on April 1st were significant.
9 We do not need to spend any time here
10 debating or re-litigating what has been done.
11 We must put aside our differing opinions and
12 concentrate on the matter at hand.
13 While some have called the legislation passed
14 in the budget as "reform of the criminal justice
15 system," I myself prefer to call it "the reimagining
16 of the criminal justice system."
17 In Albany County, and many upstate
18 communities, reimagining the criminal justice system
19 has presented us with significant workflow and
20 technological challenges.
21 In fact, every county in New York State is
22 experiencing the same burden.
23 Albany County is home to 11 distinct police
24 agencies: one county sheriff, the New York State
25 Police, federal authorities, the enforcement arms of
71
1 every state agency, including tax, department of
2 motor vehicle, and the IG.
3 The vast majority of cases presented to my
4 office originate with our police, sheriff, and state
5 police.
6 With rare exception, every single law
7 enforcement agency owns and maintains its own
8 technology.
9 Smaller agencies will, at times, share
10 technology with larger agencies.
11 The technology includes computer-aided
12 dispatch systems, records-management systems, radio
13 and transmission and video systems, body camera and
14 dash-camera systems. And in addition, every agency
15 will have its own evidence tracking and storage
16 systems.
17 A simple traffic stop will employ several
18 technologies, each stored in various places within a
19 police department.
20 If a driver calls 911 to report a drunk
21 driver on the road, that agency must preserve the
22 call, the time that call was received, the car that
23 was dispatched, the car dispatched, the time of
24 arrival, and the time the case was cleared.
25 If the department has a dash cam or a
72
1 body-cam policy, additional materials are generated
2 and must be stored.
3 A simple DWI generates many documents,
4 recording of both voice and visuals, as well as test
5 results.
6 Currently, in most DWI incidents in
7 Albany County, many of the materials just mentioned
8 are turned over to the defense in order for lawyers
9 to engage in meaningful discussions with their
10 clients.
11 There are many materials that are turned over
12 in what we term "open discovery."
13 Electronic transmissions and physical
14 evidence is provided upon demand for discovery;
15 thus, triggering the collecting event within each of
16 the police departments.
17 Picture every police department as a
18 supermarket, with evidence in all of its forms, for
19 every case, sitting in different aisles.
20 When a demand is sent to the department, the
21 demand is like a shopping list, and various people
22 are tasked with going up and down every aisle,
23 placing the items on that list in that cart.
24 Once that cart is complete, then the
25 materials are sent to the check-out, and delivered
73
1 to the DAs' offices.
2 The discovery legislation recently passed
3 will change this process in significant ways, in
4 that there are more materials being sought and a
5 compressed timeline for compliance.
6 In other words, there are more aisles and
7 more shopping carts moving up and down every aisle.
8 The discovery process will present the
9 greatest challenge and need for investment in my
10 office.
11 What I have described thus far are the
12 challenges in getting materials to my office.
13 Once the materials arrive in my office, we
14 have the corresponding obligation to review the
15 materials, redact where appropriate, and make
16 available these materials for the defense.
17 Remember, in Albany County we practice open
18 discovery, which is also termed "substantial
19 discovery."
20 Complete discovery is done only in cases
21 heading for trial, which is less than 5 percent of
22 all of my cases.
23 Requiring complete discovery in 100 percent
24 of the cases requires significant investment, a
25 theme you're going to hear, and I think you have
74
1 heard, from all of us presenting here today.
2 There were hearings that were held last
3 month, and I had the opportunity to review and view
4 some of the exchanges that took place between my
5 colleagues and all of you.
6 I viewed some of that exchange, and there was
7 a discussion about what was possible.
8 And I believe that Darcel Clark from my --
9 from our organization was discussing about was what
10 possible.
11 In view of -- the view of most people who do
12 not work in law enforcement is that everything is
13 digitized.
14 I mean, anyone who watches CSI or the
15 television shows would be right to believe that a
16 robust technological infrastructure exists within
17 all of our agencies.
18 I actually watched a show where the police
19 had access to the database of a library in order to
20 tie a case together.
21 That doesn't exist, and nothing could be
22 farther from the truth.
23 But creating that reality is possible, if we
24 think about it, to have access to all varieties of
25 technology.
75
1 But what makes the possible more probable is
2 investment.
3 Jeff Bezos envisioned a world where people
4 could click a button and purchase products from
5 their homes.
6 I'm sure that the vast majority of the people
7 who were made aware of his vision doubted his
8 ability into making that vision possible.
9 With strategically placed distribution
10 networks, and significant investment in
11 infrastructure and technology, he made that vision
12 possible, and we shop today in ways that we could
13 not have imagined 10 years ago.
14 In a world where we purchase music and food
15 on our phones, everything is, in fact, possible.
16 But without that investment, it would not be
17 probable.
18 The reimagined criminal justice system you've
19 created is possible, but not with the 2 percent tax
20 cap.
21 That's the reality.
22 Reform without investment is empty rhetoric.
23 You can either have real reform, or palm-card
24 reforms which are as worthless as the paper that
25 they're printed on.
76
1 Without State investment, you will have
2 created a dysfunctional patchwork of systems
3 throughout New York whose ability to comply would be
4 dependent on the counties' fiscal health.
5 ZIP codes should not determine the quality of
6 justice experienced in the court systems.
7 And with that, I will take your questions.
8 SENATOR BAILEY: Thank you, District
9 Attorney Soares.
10 I would like to thank you all for your
11 testimony.
12 Thank you for taking time out of what I know
13 are to be incredibly busy schedule.
14 And I want to thank you for what the
15 commonality that we do have.
16 I think as DA Jordan mentioned, and
17 DA Donnelly mentioned as well, we -- we -- we all
18 care about people beyond the scope of who we
19 represent.
20 But I want to start with a couple of things,
21 and I know, DA Soares, you said we didn't want to
22 re-litigate it, but I heard a little bit of
23 re-litigating.
24 So I just want to address some of the
25 re-litigation points that I heard.
77
1 I heard words like "irresponsible" and -- and
2 "cynic."
3 And if I were a cynic, what I would think
4 of --
5 If we can silence phones, please.
6 Thank you.
7 If I were a cynic, I would look at this panel
8 of district attorneys and note that only one had a
9 conversation with me prior to me being the Chair of
10 the Codes Committee.
11 If I were a cynic, I would say that only one
12 of these district attorneys engaged in meaningful
13 discussion with me about justice reform prior to me
14 becoming the Chair of the Codes Committee.
15 But I don't want to consider myself a cynic,
16 and I don't want to be labeled as irresponsible.
17 I think about, what's irresponsible?
18 Is it responsible to allow people not to have
19 access to information that relates to their freedom,
20 to their liberty?
21 I think about, what's irresponsible?
22 And so, like, I wanted to have a conversation
23 about implementation, about what it will take.
24 Because I have a legitimate interest in
25 making sure that this works.
78
1 What I do not have a legitimate interest in
2 is having conversations about what happened in the
3 past.
4 But since it was brought up, I will allow
5 myself the opportunity to have conversations about
6 it, because I want to help.
7 I'm a father and I'm a husband before I'm a
8 state senator.
9 I want my daughters to be safe.
10 And you do a damn good job in keeping people
11 safe, you and members of law enforcement.
12 Let's be very clear about where I stand.
13 This is not a criminal's bill of rights which
14 has been bandied about.
15 This is something about equating justice for
16 people who have been denied it for quite some time.
17 And I'm not in the business of lecturing, but
18 I heard some things that troubled me.
19 And I want to have (indiscernible)
20 conversations about this. And I thought that we
21 were making -- we were making headway.
22 We talked about -- DA Soares, and we
23 talked -- last year, we talked about root causes;
24 two years ago, we talked about root causes, and real
25 investment in communities.
79
1 And DA Hoovler, you mentioned $391 million to
2 the State of New -- from (sic) the city of New York.
3 None of that went to discovery.
4 It was $126 million in previously-planned
5 investments, and $265 million to go towards closing
6 Rikers, and reinvestment in root cause.
7 That's where that money came from.
8 So that's what that's about; that's where we
9 should be spending money.
10 And I want to be very clear as well, I'm not
11 saying you shouldn't receive increases. I'm not
12 saying that at all.
13 In private meetings that we've had, in
14 hearings that we've had, no one can say that I have
15 said, Don't give district attorneys money.
16 I have not said that.
17 I will never say that.
18 Because you need to have funding in order to
19 run your operations.
20 But I'll just ask this:
21 Prior to the enactment of these laws, what
22 was the conversation around updating district
23 attorneys' offices?
24 I would ask that conversation.
25 Aside from D.A. Mills, who mentioned that --
80
1 that there was a conversation about -- about that,
2 what other efforts have been made to update district
3 attorneys' offices in the face prior to the
4 enactment of this legislation?
5 OFF-CAMERA SPEAKER: David, do you want to
6 take that?
7 DA DAVID HOOVLER: Yes.
8 I think a lot, Senator.
9 But, you can only do so much, when you go to
10 a county legislature, you go to a county executive,
11 and they tell you you're bound by the tax cap.
12 In my county, I wish, I wish there was a
13 million dollar -- a million dollars for, basically,
14 pre-arraignment diversion.
15 I know we're here to talk about discovery,
16 but they're all connected. The root cause,
17 everything that you're saying here, it's all
18 connected in one form or another.
19 I wish there was that money.
20 But, I've asked for it, I've been denied.
21 Everybody sitting on this panel, we all
22 answer to a board of supervisors, a county
23 executive, or a legislature, that property taxes --
24 in every one of these counties here, the property
25 taxes that are levied on the people that live there
81
1 set the budget.
2 No of the local -- none of the local elected
3 officials want to go over the tax cap, or even want
4 to say that they raise taxes.
5 Just like the four of you, the last thing you
6 want to say is, I raise taxes.
7 So we're stuck.
8 We're stuck.
9 And not one of us here says -- I don't think
10 the reforms are bad.
11 But, again, if I'm constantly told "no" every
12 time I need something, it's hard to do anything.
13 And, again, I've been asking my county for
14 infra -- for IT infrastructure for years.
15 But I have over 40 different police
16 departments that all have a different chief, that
17 all have a town council, that all have a town
18 supervisor, that all have their own way of doing
19 things, and it becomes difficult to try to
20 interface.
21 And I think that that is what we have across
22 the state.
23 And I know it's a hard issue to deal with
24 when you look at it from the larger, because I know
25 exactly where you want to go. And I think you're
82
1 right on a lot of things.
2 But, it's almost like, once you move north of
3 the GW Bridge, you have to deal with multiple layers
4 of government that are almost impossible to deal
5 with.
6 I can't -- I have to beg, borrow, and steal
7 with my legislature, and I talk to them every day.
8 And since this has come out, I have been
9 talking to them, and, look, I'm going to get a
10 little bit of what I asked for, what I need.
11 But, again, my county has a little bit of
12 money there to help.
13 The others sitting here, they don't, and
14 that's why we're here; we're here to ask for the --
15 we're here to ask for the help.
16 And, again, the help, indigent legal
17 services, legal aid, they're getting some help
18 through grants.
19 Get us the help we need to make the system
20 that you want work, and I guarantee you it will, but
21 it costs money.
22 And, again, every time we ask for it, if all
23 we're ever told is "no," then it does become -- it
24 is a problem.
25 And it's not that we don't want to change or
83
1 do things. It's, just, when you want to change and
2 you want to do things, it costs money, and it's very
3 difficult.
4 SENATOR BAILEY: And you -- and you make --
5 you make a fair point.
6 Being told "no" is frustrating, consistently.
7 And the when people wanted simple reforms,
8 year after year, people being told "no," was
9 consistently frustrating.
10 So -- so I share your frustration in being
11 told "no" repeatedly.
12 DA ANTHONY JORDAN: On the positive side, on
13 the investment in technology, one of the fortunate
14 things we have is the New York Prosecutor Training
15 Institute.
16 They do receive some funding from
17 New York State. And they've re -- continually
18 request increased support, because, through them,
19 I wish I knew the number off the top of my head, but
20 I think it's in the range of 50 to 52 of the 62 DA
21 offices utilize a case-management system.
22 And they've also, over the past three or four
23 years, because of substantial investment from
24 district attorneys' offices, have developed a
25 discovery, which is called "digital evidence
84
1 management system." And it's because of that.
2 You know, one thing I know -- I don't know
3 you -- I know one goal we have in common is to make
4 this work. Right?
5 I -- I've -- I've spent six months saying,
6 this has to work.
7 What I can't do is make something move that
8 is immoveable.
9 And so the digital evidence management system
10 at least gives us a fighting chance.
11 But we have nine agencies, two of which are
12 state agencies, that I don't control, that I have no
13 impact on, no say to. And they lack the ability,
14 they lack the resources, to get us the material as
15 well.
16 So, it's a real problem.
17 I think a lack of adequate information is
18 very -- it's a real problem. And if we don't bridge
19 that gap somehow, then we're just going to sit here
20 and have this battle for decades to come.
21 But resources are the key.
22 We can -- I love what DA Soares said.
23 It is -- this is possible, but without
24 resources, it won't be probable in a 100 percent of
25 the cases.
85
1 And I think none of us want that reality.
2 SENATOR BAILEY: Sure.
3 Sir.
4 DA PATRICK PERFETTI: Senator, I --
5 Mr. Chairman, I have a partial answer to that.
6 Prior to any of this legislation even being
7 contemplated, I took office in 2017, with the
8 intent, and seeing the value, of going paperless.
9 So, without bothering my county legislature,
10 I had seized asset-forfeiture funds, that I utilized
11 to outfit each of one of my five assistants with
12 laptop computers.
13 We already were utilizing the case-management
14 system. And I have a team of professionals that are
15 moving us over to utilizing the digital evidence
16 management system.
17 That's the technological piece.
18 I've managed to make that work for my county
19 without going to the legislature to ask for money.
20 The part I need is the part I told you about.
21 I have to have personnel that can review this
22 discovery before it's being turned over, and that's
23 the really expensive part.
24 I'm sure you're aware, in any organization,
25 whether it's government or private industry, the
86
1 most expensive investment is people, and that's the
2 part I've got problems with, and that's the part I'm
3 asking for help with.
4 DA DAVID SOARES: The challenge that we're
5 presented with is twofold: It's workflow, and it's
6 also technology, because there are solution sets
7 for -- for technology.
8 You had mentioned, what were we doing before
9 April 1st?
10 The New York State Prosecutors Training
11 Institute, throughout the last several years, have
12 invested significantly in being able to provide, for
13 all of us, a prosecutors' case-tracking system.
14 So the solution for upstate states -- for
15 upstate counties has been, you know, NYPTI's
16 investment in all of us with technology.
17 And I believe the vast majority of our
18 offices currently use the New York State -- 56 of us
19 use the case-tracking system, PCMS, which I think
20 gets us to the technology issue.
21 We have to -- for example, I have people in
22 my own family who don't have Apple phones. They
23 have their Sang -- Samsung phones. There's the
24 annoyance of having to keep these people on the same
25 thread.
87
1 This is what we're facing with our law
2 enforcement agencies.
3 So many of them, they operate with their own
4 independent contracts, with different technologies.
5 And what we're trying to do is create
6 uniformity, so that those materials are delivered;
7 however, simply delivering the material is not
8 enough.
9 If you take one incident that requires
10 multiple cars arriving for one call, and, in
11 addition to those cars, you also have body cams, you
12 have to review the body-cam footage for every single
13 officer, and you have to review the body-cam footage
14 for every -- the camera footage from every dash cam,
15 which takes a significant amount of time.
16 Now, if it's a case that -- that is
17 prosuit -- proceeding to a hearing, or a case that
18 is proceeding to trial, I mean, you take the time to
19 do that.
20 However, with cases that are just average
21 cases, that are routine cases, and now we're
22 required to do this for 100 percent of those cases,
23 it's going to require a significant human
24 investment, which is what we're currently seeking
25 from our legislature.
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1 Now, let me just say this:
2 I know that the Governor's Office has talked
3 about, you know, the monies that will be saved from
4 bail and jail, and things of that nature.
5 I just want to demonstrate to you that, in
6 Albany County, when I first took office, we had beds
7 for 1100 people in the Albany County Correctional
8 Facility.
9 We instituted diversion programs. We
10 instituted restorative justice programs. We
11 instituted greater use of community service.
12 We've dwindled that population within our
13 Albany County Correctional Facility by two-thirds,
14 but we don't experience those savings, and those
15 savings are not reinvested back into the good fight,
16 nor are they reinvested back into the community.
17 Much like we've closed a number of state
18 prison -- correctional facilities, with little of
19 those dollars that we've saved being reinvested in
20 continuing to do the same.
21 What I think we're all trying to avoid, and
22 I think you should also have an investment in
23 avoiding, is creating a patchwork of different
24 discovery process, the pre-trial processes, from
25 county to county, that would be based on that
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1 county's ability to invest in our office.
2 And let me just say this, in closing, and
3 I'll take your questions:
4 If you have a dysfunctional DA's office, it
5 gums up everything.
6 It gums up everything.
7 Let me just say, you know, those of us who
8 are sitting here today, we can go back to our jobs.
9 Right? And if we wanted to bankrupt our counties,
10 we would just place every single person on
11 probation. Just, that's our offer, 100 percent
12 probation.
13 And before you know it, you'd go from
14 1 percent of the population in Albany County under
15 community supervision, to a much wider variety of
16 people now subject to that same -- to that -- to
17 that same experience; thus, bankrupting one of our
18 partners.
19 So the downstream effect of inefficiency
20 within our office impacts every other space.
21 And true reform -- right? -- is about making
22 sure that the outcomes are just, not law-office
23 failure.
24 To have cases dismissed on technicalities
25 because of failure to comply, that just can't be the
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1 way that we envision this system to be.
2 And the reality is, I have tremendous respect
3 for you as legislators.
4 You've listened to your constituents.
5 You've passed the law that you've passed.
6 It is our responsibility now in the executive
7 branch to comply with those laws and to make those
8 laws happen.
9 But as I said before, reform without
10 investment is just empty rhetoric.
11 And the -- the reliance on our local
12 legislators to provide for those resources, when you
13 consider that what we do is, in fact -- you know, in
14 fact, affects our state, it is not -- it's just not
15 right.
16 And that's what we're looking for.
17 I want to help you succeed in the legislation
18 that you've passed.
19 How can you help us help you?
20 SENATOR BAILEY: So, to that point, I have
21 two more questions, and then I know my colleagues
22 have a number of questions as well.
23 To that point, DA Soares --
24 Anybody is -- can feel free to answer any of
25 the questions that I'm asking.
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1 -- you mentioned non-uniform -- I guess
2 non-uniform procedures in district attorneys'
3 offices.
4 I know -- I know that you instituted
5 open-file in your district attorney's office, and
6 other jurisdictions don't.
7 Aren't -- isn't there already a non-uniform
8 manner in which -- in which offices --
9 DA DAVID SOARES: But I believe -- there is
10 non-uniformity. And that experience in the criminal
11 justice system will range from county to county.
12 But I think what you're -- what you've tried
13 to do in your legislation is to eliminate that.
14 Right? You've tried to eliminate that with the
15 reforms that were passed.
16 And what I'm saying is, is if there is no
17 investment from the State, in equal shares through
18 the county -- right? -- where we're relying on
19 legislators who will not invest in some communities,
20 then what we're doing is just really recreating, in
21 fact, maybe even enhancing, that disparity
22 experience from county to county.
23 SENATOR BAILEY: So one final question, and
24 then -- then -- then we'll go down to Senators
25 Jordan, O'Mara, and Serino, and then I will have a
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1 second round of questions. I just want to give my
2 colleagues some time.
3 Is there a total cost?
4 I know we spoke about this at the last
5 hearing.
6 And -- and -- you know, is there a total
7 cost, statewide, as to what it would cost for
8 implementation in each county?
9 DA DAVID HOOVLER: Outside, again, in talking
10 with NYSAC (the New York State Association of
11 Counties) and their -- and their counsel, we had
12 originally talked, for the upstate counties, a
13 number north of $100 million in order to implement.
14 And, again, we have not considered every
15 factor and every consideration in that. And a lot
16 of that was still -- was still -- it still hasn't
17 been fully developed at this point, because there's
18 still -- they still haven't completely assessed all
19 pre-trial services, they haven't completely assessed
20 DAs' offices' needs, because all of those counties,
21 right now, the vast majority upstate, are still
22 involved in their budget process, and the budget
23 hearings are going right now at those levels.
24 But it's north of $100 million, sir.
25 Thank you, DA.
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1 Senator Jordan.
2 SENATOR JORDAN: Sure.
3 Well, I guess I go back to my statement from
4 the beginning, and I understand your concerns with
5 costs.
6 And it's sort of incredulous that we're
7 having public hearings way after the fact instead of
8 before passage of any of this.
9 But my question, because I understand you're
10 concern with cost, is --
11 And this is open to anyone who wants to
12 answer.
13 -- what can you do about witness
14 intimidation, and their protection, at this point?
15 If things were to stay as it is, how -- how
16 would you advise anybody, or how would you solve
17 that problem?
18 DA MARY PAT DONNELLY: I can speak just a
19 little to that, basically.
20 What I asked for in my budget was additional
21 investigators to deal directly with these witnesses
22 when we do need them to come and testify, and
23 additional staffing, so that we can -- we can have
24 the network there for these witnesses.
25 And when -- when we don't have their
94
1 cooperation, we have people who are dedicated to --
2 to provide them with a certain amount of reassurance
3 that we will do everything we can to get them
4 protected.
5 SENATOR JORDAN: So in going with what you
6 said, how would you protect them?
7 DA MARY PAT DONNELLY: Well, our proposed
8 budget has given me an additional half of an
9 investigator, it has given me one administrative
10 aide, and one district attorney.
11 So, I don't know that I can under the
12 framework that I have.
13 My hope had been to have investigators
14 dedicated to these witnesses for situations like
15 those crime-scene visits, so that an investigator
16 can be dedicated to assisting the victim under those
17 circumstances.
18 And without funding, I can't do anything
19 additional for them.
20 SENATOR JORDAN: Right.
21 And so, you know, you're looking at it in
22 terms of when they're going back to the crime scene,
23 and, you know, having an investigator with them.
24 But what about afterwards, when the person is
25 coming home from work the next day, and now
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1 everybody knows they're a witness or the victim.
2 And, you know, I'd be afraid to go home.
3 DA MARY PAT DONNELLY: I'm not sure money can
4 protect them.
5 I don't know if anyone else has a different
6 theory on that.
7 DA KRISTYNA S. MILLS: I know that we've had
8 issues up in my county with witness statements
9 getting put out on social media.
10 And that's had a real chilling effect on
11 witnesses coming forward.
12 We've had witnesses that have been refusing
13 to testify at trial, so we've had to dismiss cases
14 because of that.
15 We don't have the infrastructure right now to
16 really protect witnesses.
17 There is no sanctuary. There is no -- other
18 than hotels, there is no place to put witnesses that
19 have been threatened.
20 So I think that we would need significant
21 funding to be able to do that, and we would
22 definitely need to beef-up our victim services.
23 We don't have any dedicated funds in my
24 office for victim services.
25 We have a victims' assistance center that,
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1 basically, donates one of their advocates to my
2 office, that can help us out with some victim
3 services.
4 But, we don't have any funding for that.
5 And we would need significant funding to come
6 up with some type of sanctuary plan for victims that
7 have been threatened and for witnesses that have
8 been threatened.
9 DA DAVID SOARES: There was a current budget
10 for witness protection that is funded through the
11 New York Prosecutors Training Institute, but it's
12 very small. It's $250,000, and that is supposed to
13 be used for the entire state.
14 Let me just -- if I can just back up for a
15 moment and talk to you about -- about witness
16 protection and current the discovery practices.
17 So, with rare exception, the only cases that
18 I would not turn over materials -- identifying
19 materials to the defense, are cases that involve
20 serious domestic violence, or cases that involve
21 gang -- organized crime, gangs.
22 I wait until perhaps a month out, two months,
23 before trial, because, two months, I can afford to
24 remove a person from community and have that person
25 stay at -- at -- at one of the various locations
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1 that we use.
2 And through NYPTI, those dollars are --
3 are -- are reimbursed to us.
4 The problem, however, is when, now we're
5 required to turn over materials so early on in the
6 process, we could not, in fact, provide that kind
7 of -- of -- of witness protection for -- for that
8 kind of period of time, four or five months, could
9 even be possibly six months.
10 I'm not suggesting to you that we -- that
11 couldn't be overcome, but it's -- again, it's
12 going to require a significant investment in
13 witness-protection funds.
14 And these cases, let me just also say that --
15 how do I say this and be polite? -- you know, there
16 are communities, certainly in my community here in
17 Albany County, where the victims and their
18 perpetrators live within a block of one another,
19 they live within two blocks of one another. Their
20 friends and associates are all known to one another.
21 And so, in those instances, the ability to
22 provide witness protection, the witness -- the
23 ability to provide some measure of protection for
24 witnesses, in addition to victims, really sparks
25 cooperation.
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1 And so we may not have a witness-protection
2 issue if we don't have cooperation to bring cases in
3 the first place.
4 And that's the kind of information that I'm
5 going to be tracking throughout the first and second
6 quarters, just to be able to update all of you, for
7 purposes of our having to revisit some of these
8 issues.
9 SENATOR JORDAN: Was witness protection
10 included in any of the additional costs that any
11 of -- that you spoke about?
12 DA PATRICK PERFETTI: Senator Jordan, I --
13 I come from the smallest county represented here.
14 Like DA Soares has mentioned, many times in
15 my county, the perpetrators and the victims know
16 each other. And it is a rural county.
17 Other than the county seat, there really
18 aren't, you know, hotel accommodations or safe
19 houses. And even if there were, law enforcement
20 agencies, they're dealing with the same fiscal
21 constraints that I'm dealing with.
22 I've got a sheriff's office right now that's
23 down two shifts, due to retirements and the
24 reticence of the county legislature to offer him
25 funds to replace those officers he's losing by
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1 retirements.
2 So, largely, I haven't ever budgeted for
3 witness protection.
4 And in this climate, I could just add that to
5 the list of things that are being denied, I think.
6 DA WEEDEN WETMORE: Witness intimidation in
7 the city of Elmira is very a real problem.
8 Many cases are not prosecuted at all because
9 the witnesses don't come forward on shootings.
10 If we do get, by chance, a case that we can
11 present to the grand jury, right now, we will
12 provide all the discovery, but we may be reluctant
13 to give certain witnesses until the time of trial,
14 but counsel will indeed get those witnesses.
15 The problem is a very real problem, and cases
16 have gone unsolved because of that, or cases are
17 dismissed.
18 I've not asked for any witness money of the
19 legislature.
20 Presently, we have asset forfeitures on
21 occasion.
22 If I've gone to trial, I've been able to
23 assure certain witnesses that, following the trial,
24 that we will provide transportation expenses if they
25 might want to relocate to another state, to be with
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1 family members.
2 It is that bad because, in Elmira, as they
3 say, as some of the other district attorneys have
4 pointed out, the witnesses live next door to the
5 very people they're testifying.
6 They are very -- they are very frightened, it
7 is very real; the intimidation factor is real.
8 It's real in drug cases.
9 It's real in domestic-violence cases.
10 It's real in assault.
11 It's real in gun cases.
12 And, in Elmira, we do have a major problem
13 with respect to witness intimidation in that regard.
14 DA DAVID HOOVLER: If I may, Senator, just in
15 one -- one instance, and we've mentioned a whole
16 variety of cases, I am fortunate that I do have a
17 child-advocacy center.
18 Within the child-advocacy --
19 SENATOR BAILEY: DA, one second, I'm sorry.
20 Please silence your phones.
21 We -- we need to give all the people
22 testifying, to make sure that they have -- that we
23 hear -- we hear them out.
24 Thank you.
25 DA DAVID HOOVLER: Thank you, Chairman.
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1 I do have a child-advocacy center. Within
2 that child-advocacy center, I have one family
3 advocate.
4 I utilize that advocate to provide certain
5 resources, but those resources aren't coming from
6 the county. Those resources are largely State
7 resources.
8 And that advocate, largely, assists the
9 families of these child sex- and physical-abuse
10 victims to access the Office of Victim Services.
11 So those are state moneys.
12 And we have, on certain occasions, been
13 denied monies that assist with relocation.
14 That would be my greater concern,
15 particularly with the early discoveries, having to
16 turn over those kinds of Informations relative to
17 children -- child victims, and without the resources
18 to protect them.
19 It's already hard to get them to come
20 forward.
21 Without the ability to protect them, like
22 DA Wetmore said, we'll probably, you know, have
23 cases we can't prosecute.
24 SENATOR JORDAN: Sounds like a step backwards
25 in public safety and justice.
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1 I'm finished with my questions.
2 Thank you.
3 SENATOR BAILEY: Thank you, Senator Jordan.
4 Senator O'Mara.
5 SENATOR O'MARA: Uh, yes, thank you,
6 Chairman.
7 Thank you all for being here today.
8 I applaud each and every one of you for the
9 work that you do. You do truly carry out justice in
10 your communities.
11 And I'm proud to have sat in the position
12 that you're in previous in my career.
13 I want to direct this first question to
14 DA Hoovler and the DAs Association.
15 Can you describe for me what outreach,
16 involvement, inclusion, in the discussions of this
17 legislation were conducted before this legislation
18 was passed?
19 DA DAVID HOOVLER: There -- there were
20 conversations at times over previous -- previous
21 years, and months, where people talked about
22 criminal justice reform with individual DAs, with
23 DAs that sat on the justice task force.
24 But, in the end, this particular package that
25 came down, nothing.
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1 SENATOR O'MARA: No outreach from the
2 sponsors of this legislation once this specific
3 legislation was drawn up?
4 DA DAVID HOOVLER: Not on this specific piece
5 that came down, I think Parts L and K, on this
6 specific.
7 But there were discussions prior to that.
8 SENATOR O'MARA: Now, I understand fully,
9 coming from a background of county government as
10 well, having served as a county attorney, and the
11 constraints of the property-tax cap, which I fully
12 and strongly support, because property taxes are a
13 huge problem in our state.
14 We lead the nation in property taxes.
15 We lead the nation in overall taxes that
16 stifles our economy and our ability to be
17 successful, individually, in this state.
18 So I get it.
19 But this comes as another unfunded mandate.
20 Governor Cuomo pushed for the property-tax
21 cap, saying that unfunded mandates would be
22 addressed.
23 They have not been addressed.
24 And this governor continues to pile on
25 unfunded mandates, such as this one, that's been
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1 estimated by you, to be over $100 million across
2 just Upstate New York.
3 That's huge; that's a huge impact, and a
4 burden on our taxpayers, on our economy as a state,
5 and our ability to succeed as a state.
6 Now, some of you have suggested giving up
7 control of prosecutions in local courts.
8 To what extent can you, if you -- if you --
9 I don't recall.
10 -- what -- what crimes or violations or
11 traffic can be conveyed to either municipal attorney
12 or to law enforcement to prosecute themselves?
13 DA DAVID HOOVLER: Under the county law of
14 our -- of our state, Section 700, the district
15 attorney is charged with all prosecutions that occur
16 in the geographic confines of where he or she is
17 elected.
18 They have the ability, under case law that
19 has been decided in the state, to delegate certain
20 authority.
21 That delegation generally extends to, code
22 violations go to municipalities, traffic violations
23 and such can go to municipalities as well. And then
24 the municipalities can determine on how they want to
25 do that, sir.
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1 SENATOR O'MARA: Okay.
2 What would you foresee, if your offices gave
3 up prosecution of what you can, and how those local
4 courts would deal with, not just this issue of
5 discovery, but how cases would be handled in
6 general, in those local courts?
7 DA DAVID HOOVLER: I think that's a question
8 better answered by some of the smaller counties.
9 DA PATRICK PERFETTI: I'll take a shot at
10 fielding that, Senator.
11 There is case law, as President Hoovler had
12 indicated, under People versus Van Sickle, that
13 allows for delegation of authority.
14 I've done that, prior to this legislation
15 being contemplated, in a certain series of -- or,
16 types of cases for the municipal attorneys.
17 But in doing it in this regard, I'm not
18 certain is really a workable solution. It would
19 really just be an effort to get these off my plate.
20 I know in some areas of the state, traffic
21 enforcement is delegated to the law enforcement
22 agencies.
23 And I think, under our current system, that
24 can be done.
25 But when the Westchester DA testified before
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1 you in New York City, he indicated, and I concur
2 with his assessment, that the certification of
3 discovery compliance, and that's a requirement of
4 the bill, has to be done by an attorney.
5 That's why I'm seeking an additional attorney
6 in my office to head up discovery compliance,
7 because I don't think, in the way the statute is
8 structured, it can be -- that can be done by a
9 non-attorney.
10 So I'm not certain that delegating to law
11 enforcement agencies, the prosecution of traffic
12 tickets, is something in the future that will be
13 possible, although that may have to await a judicial
14 determination.
15 As far as delegating it to the municipal
16 attorneys, as I stated in my comments, they haven't
17 received any resourcing for this either, so that it
18 may just be something that they choose not to do,
19 understanding that municipal attorneys are hired in
20 a variety of ways.
21 Some are done for a specific -- are hired for
22 a specific contract issue -- or, they're contracted
23 to address a specific issue.
24 Some are hired as W-wage -- W-2 wage-earning
25 employees, and -- or, they're a regular employee of
107
1 the municipality.
2 And some -- some have restrictions. Like,
3 they can only work 20 hours a week or per month.
4 It depends on what the municipality decides
5 they want and need.
6 So I don't think that's going to be a
7 solution that can be applied statewide, given the
8 diversity that we have within the state.
9 SENATOR O'MARA: Well, it's going to be
10 shifting that cost to another entity.
11 DA PATRICK PERFETTI: Right.
12 (Multiple parties cross-talking)
13 DA PATRICK PERFETTI: And I'm reluctant to do
14 that too.
15 SENATOR O'MARA: It's going to shift the cost
16 to law enforcement, having to send officers to court
17 every time their case is on for trial.
18 Less resolution of cases, pre-trial, I would
19 assume, to cause police officers to appear in court,
20 local municipal attorneys without the necessary
21 background and experience that have in your offices,
22 would be my thoughts on that.
23 DA KRISTYNA S. MILLS: I think it's important
24 to note as well, that we are all triaging; we are
25 all trying to deal and comply with these laws from
108
1 the most serious cases, down.
2 So I think that what's going to suffer are
3 going to be some of the lesser cases that are
4 prosecuted in the local courts.
5 What that means, is there's going to be less
6 funding, less fine structures, less traffic tickets.
7 All of that revenue is not going to come into the
8 municipalities anymore.
9 They are not going to be able to afford
10 their -- their municipal attorneys and their local
11 police agencies.
12 And that's something I think we're going --
13 we're going to see.
14 DA WEEDEN WETMORE: If we were to turn over
15 the prosecution of vehicle and traffic cases,
16 just -- let's just talk about that, to the local
17 municipal lawyers, it would be utter chaos in
18 Chemung County.
19 These people are part-time attorneys. They
20 would not be capable of reviewing the hundreds, to
21 thousands, of cases, to send out certificates of
22 compliance.
23 My suggestion earlier, is if you could remove
24 the vehicle-and-traffic component from the
25 discovery, that would be a tremendous asset for us,
109
1 a tremendous boon to us.
2 I'm not talking about removing misdemeanor
3 cases, such as DWI or reckless driving, or even if
4 you want to include DWAI, which is a violation.
5 But removing the traffic tickets, the
6 speeding cases, those types of cases, we've got to
7 comply with discovery in all of those. That's --
8 that's not really cost-beneficial, especially when
9 that is such a money-generating venture for --
10 I suppose, you'd call it, "venture," but, a
11 money-making thing that happens for the county, for
12 the state, for the various agencies involved, that
13 collect these funds.
14 But if we're going to turn this over, it's
15 not going to be accomplished.
16 If my office is going to have to certify,
17 I told you, it would 48 e-mails, letters, a day,
18 with a certificate of compliance, saying, we've
19 gathered all the discovery, we've gathered all the
20 video, we've gathered all that, on these vehicle and
21 traffic cases.
22 A simple stroke of the pen, eliminating
23 VNTs, except for the ones that are egregious,
24 would be a tremendous help to, I think, every
25 district attorney's office in the state, not just
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1 upstate.
2 SENATOR O'MARA: There seems to be a
3 perception from those that are behind this -- this
4 legislation and these mandates, that there's some
5 desire by prosecutors to push these cases to trial,
6 and to hold back on discovery to sandbag the
7 defendants at trial.
8 Having been a prosecutor, and I'm sure you
9 all agree, your number-one goal is, first of all,
10 doing justice, but, second of all, doing triage, as
11 you mentioned, and disposing of cases as quickly and
12 expeditiously as you possibly can.
13 When you talk about numbers of less than
14 5 percent of cases going to trial, you're going to
15 be wasting all this time on 95 percent cases that --
16 that aren't going to get that far.
17 And to have to do this in 15 days, it doesn't
18 give time for a defendant to appropriately consult
19 with his attorney, talk about what he knows about
20 the case with his attorney, and consider a plea
21 offer, or a request for reduction of something,
22 which should be done. But it's not going to be done
23 in 15 days.
24 I would think -- and I'm supportive of
25 opening up the discovery further than what we have
111
1 in New York.
2 I don't like the last-minute disclosures of
3 things before trial. Even as a prosecutor I did not
4 like that.
5 But, it seems to me it would be more
6 effective to work from a trial date, backwards, as a
7 time frame for when this needs to be disclosed, as
8 opposed to 15 days from the beginning.
9 What type of -- well, let me just ask you
10 this: What is a typical timeline to trial for
11 cases -- these cases that are going to end up in
12 trial? What's a typical timeline in your counties?
13 DA DAVID SOARES: Currently, in Albany
14 County, with the judges, with their standards and
15 goals, cases are tried, from beginning to end, less
16 than six months, with the exception of a -- of a
17 more-complicated case.
18 It's a rarity that a case is on track for
19 more than six months.
20 DA WEEDEN WETMORE: Yeah, I would agree with
21 that.
22 Those that are incarcerated get priority
23 preferences. We go to trial on those sooner, to
24 remove those, or we try to address those cases
25 sooner.
112
1 I agree, plea bargaining is a major component
2 of a prosecutor's arsenal. We try to resolve these
3 cases, we try to do it fairly.
4 Most cases do not go to trial.
5 I'm not suggesting that -- unlike you,
6 Senator O'Mara, I'm not suggesting that we look at
7 the trial date.
8 I agree that perhaps we should look at the
9 arraignment date, and come up with a time to give
10 some early discovery to defendants, because that's
11 the -- that's the concern, I suppose, of the defense
12 bar, is that, we don't get discovery early enough,
13 and sometimes we lose potential witnesses.
14 More -- we're more than willing to work with
15 the defendants.
16 When defense counsel comes to me and says,
17 "We've got witnesses," we will sit down with them.
18 But as you say, in 95 percent of the cases,
19 they're going to be resolved by pleas.
20 It's the cases that require a lot of work,
21 that we're willing to work, we're willing to give
22 you the open discovery early on.
23 But setting a time limit of 15 days is not
24 necessarily the way to go.
25 If we go back from trial, as you suggest, the
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1 other side is going say, Well, yeah, you're looking
2 at the trial date. You're still not disclosing all
3 that information that needed to be discovered
4 earlier by the defense.
5 We're willing to work with them.
6 We have never hidden our witnesses, other
7 than, some witnesses, especially on drug cases.
8 And, by the way, the defense ends up knowing
9 who they are. They know by the indictment, by the
10 dates, they end up knowing who those persons are.
11 So there is still witness intimidation even
12 when we don't disclose.
13 The problem is that, that 15-day window is
14 much too tight a window for us to gather all the
15 discovery materials, even, even when we get the
16 computer system in place, even when we get the
17 data-management systems in place.
18 That 15 days, it's going to require an
19 assistant DA, at some point, to look at the file, to
20 certify that everything has been gathered.
21 DA DAVID SOARES: I just -- just as a point
22 of correction, because I do know that we are all --
23 we tend to all speak about "15 days."
24 It is not 15 days.
25 The police department will have 7 1/2 days to
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1 gather all the material and to turn it over to us.
2 And then we have 7 1/2 days to review all the
3 material before we turn it over, so that we are
4 falling within the 15-day time frame.
5 So it's not "15." It's 7 1/2.
6 DA PATRICK PERFETTI: In answer to your
7 question, Senator, the last two felony trials that
8 I directly conducted in my office, one was a
9 homicide case.
10 It was -- the homicide occurred in April.
11 Trial occurred in January. So it was about
12 eight months.
13 And then, in a firearm assault case, it was
14 10 months.
15 So we're less than a year, but, I'd say,
16 anywhere between 8 and 10 months, and that's in a
17 county that has two county judges.
18 So, you know -- and -- and both were detained
19 in custody.
20 So like -- like, in Chemung County, we are
21 putting those cases in priority, so that the
22 detained defendant does get their constitutional
23 right to trial in an orderly way.
24 SENATOR O'MARA: Thank you.
25 SENATOR BAILEY: Thank you, Senator O'Mara.
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1 Senator Serino.
2 SENATOR SERINO: Thank you, Senator.
3 First I have a few comments, and then I have
4 a question.
5 But, you know, it's up to all of us to
6 provide public safety.
7 And I can't thank you enough for all of you
8 being here today.
9 And I'm a firm believer that anybody that's
10 got skin in the game needs to be involved in these
11 conversations, especially when it comes to critical
12 legislation like this.
13 And, DA Mills, your comments about the state
14 labs, the drug labs, my DA in Dutchess County too
15 had the same concerns, because they're understaffed.
16 15 days does not seem feasible.
17 So the very people that we are trying to
18 help, we're really going to hurt, because they're
19 not going to be able to have programs.
20 And I love your comment about how many people
21 came to you afterwards, of getting some kind of --
22 into a program, that they -- you know, you saved
23 their life, basically.
24 And I'm afraid that this is going to be a
25 huge problem here.
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1 And, you know, we talked about the witness
2 protection.
3 Domestic violence and gangs, that's a fact of
4 life in each and every one of our communities. And
5 I'm really worried about this.
6 We talk about the finances, the cost.
7 Well, we all hear about the doom and gloom of
8 the upcoming budget, what's going to happen?
9 You know, I'm a firm believer in the
10 2 percent tax cap, because I know how hard it is for
11 people, especially in New York State, to pay their
12 taxes.
13 But when that was enacted, like
14 Senator O'Mara said, we were supposed to address the
15 unfunded mandates.
16 And here we go again, we're back to the same
17 situation.
18 My question is about the multiple police
19 departments that are going to be involved, and all
20 of you, pretty much, mentioned that.
21 How difficult is it going to be to coordinate
22 with multiple departments in 15 days, or, basically,
23 7 1/2 days, like you said, without a centralized
24 system?
25 DA DAVID HOOVLER: Just addressing that from
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1 Orange County, because I'm very unique, next to
2 Westchester, we have the most municipalities:
3 21 towns, 19 villages, 3 cities; over 40 different
4 local police departments that we deal with on a
5 regular basis.
6 They have 19 different operating systems.
7 Not one of them interface with the district
8 attorney's office in a meaningful way.
9 It's extremely difficult.
10 We are looking at a -- we started the
11 e-discovery platform through NYPTI.
12 We've been using that for, now -- now, over a
13 year we've been working with that.
14 Just to take the process to look at a system
15 that can handle all of the law enforcement agencies
16 and the district attorney's office, with servers and
17 what we call a "dig system," that, basically, can go
18 in and extract information, we were looking at
19 initial investment of about a million dollars, that
20 would have to go out in RFP; public bid, lowest
21 responsible bidder.
22 And then, probably, close to $300,000 a year,
23 just to maintain it for those 40 or so different
24 agencies, and allow them to interface with us.
25 Because, the way it's all -- because, again,
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1 you have to remember, in a lot of municipalities,
2 you got a town supervisor, you got a police chief.
3 They all go out and get their own contracts,
4 with their own providers, with their own bidders,
5 and they decide what's best for them.
6 And whether or not that system can interface
7 with anybody else is not their concern.
8 It's, just, does it work for them?
9 So that's a huge problem everywhere you go
10 across the state.
11 But I'll leave that question for others.
12 DA PATRICK PERFETTI: I probably have the
13 fewest law enforcement agencies in my county.
14 I have seven.
15 I -- state police, and the university police.
16 As small and as rural as we are, we enjoy
17 having a college at the state university system in
18 Cortland.
19 Both those agencies are using electronic
20 filing with my office; however, those two agencies
21 are two of the smallest case-generating agencies
22 that I have.
23 I also have a village police department
24 that's e-filing.
25 My two largest case-generators are the
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1 sheriff's office and the city police department.
2 And as I often say when I'm in public
3 hearings, particularly in my county, "the police
4 don't work for me."
5 Like DA Hoovler says, they're their own
6 governmental entities.
7 And in the case of the sheriff, he's an
8 elected official in his own right, and they purchase
9 what systems and resources best suit them.
10 If we get to a resolution with the -- with my
11 city and sheriff's office, hopefully, it will be the
12 same resolution because they use the same computer
13 system.
14 So, I'm sure there's an answer.
15 If I understood IT, I wouldn't do what I do.
16 SENATOR SERINO: And, so, $100 million might
17 not even be enough money that we were talking about
18 for all of the counties above New York City.
19 And I also just wanted to clarify too:
20 I think, DA Hoovler, you mentioned that no
21 one -- none of the counties received funding for
22 this, yet. But there was a county, or someone in
23 the city, that provide -- that was -- received
24 funding? Or --
25 DA DAVID HOOVLER: No, the City --
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1 SENATOR SERINO: No?
2 DA DAVID HOOVLER: -- the City has
3 comprehensive criminal justice reform.
4 SENATOR SERINO: Oh, okay.
5 DA DAVID HOOVLER: They got $391 million.
6 But when you talk criminal justice reform,
7 you have to look at it as a whole, it's not just one
8 piece, because, again, you have to -- you have to
9 address the cause, you have to address the person
10 that's charged, you have to have services for them.
11 And then, ultimately, you have to do justice,
12 whether it's going to be a trial or whether it's
13 services.
14 It's a complete process.
15 And when you look at it as just a piece,
16 it -- it -- we're dealing with people.
17 And -- and, again, I -- I just -- that's --
18 that was my point with Senator Bailey on that.
19 SENATOR SERINO: Okay.
20 DA DAVID SOARES: With respect to the -- the
21 finances, and I believe Senator O'Mara also
22 discussed what cases -- whether we're going to come
23 to a point where we're making decisions about what
24 cases to prosecute, I believe the reason why we're
25 not able to provide you specifically with those
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1 answers now, is because the vast majority of us in
2 Upstate New York, whose budget timetable is
3 different than -- than -- than it is downstate, are
4 all really sitting back, waiting to see what it is
5 that our legislators are going to do.
6 And, therefore, it's almost like we're --
7 we're aiming at a moving target.
8 I'm sure that, within the matter of
9 three weeks, when we begin to see that budget
10 crystallize, then the "Sophie's choice" will have
11 to -- will come. And it's a very -- that's going to
12 be a much different discussion than the discussion
13 that we have now.
14 To get at some of the questions that you had
15 asked about, the interface of technology between all
16 of the agencies, what we're doing in Albany County
17 is not looking to have these agencies speak with one
18 another.
19 We're looking for them to speak with us.
20 And, in terms of infrastructure investment
21 for me, it's really building a little Kinko's within
22 my -- within my operation, where, once the
23 message -- once the information is presented to us,
24 then it's a matter of reviewing, and then
25 duplicating and making it available for the defense.
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1 So, that's really the -- the -- the only
2 structure that I think that we can create in order
3 to fall within compliance on the 1st.
4 The reality is, we are going to fail; I mean,
5 we just are. But it's a matter of choosing where we
6 fail, and how we fail.
7 I have every single member of my
8 organization, right now, making the clear
9 distinction between offenses that involve victims
10 and those offenses that do not involve victims,
11 because when -- if and when we have to make that
12 "Sophie's choice," we are really going to be
13 focusing on those cases that involve victims.
14 SENATOR SERINO: And domestic violence is
15 something that's really near and dear to my heart,
16 so I have a grave concern over that with this new
17 law as well.
18 And my other question is, with access to the
19 crime scenes, are you guys concerned about that with
20 disclosure?
21 And I don't know if we really spoke about
22 that at all.
23 DA PATRICK PERFETTI: Well, I think --
24 I think we're all concerned with the disclosure.
25 And there is process written into the statute, that
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1 allows us to address this by a protective order.
2 SENATOR SERINO: Uh-huh?
3 DA PATRICK PERFETTI: But, like with any new
4 piece of legislation -- and this is not to be
5 critical of this one particular piece of
6 legislation -- but with any new piece of
7 legislation, there will be a time, as we go forward,
8 that we're going to have to see how it plays out in
9 the judiciary.
10 Some judges may grant these protective
11 orders, other judges may not.
12 SENATOR SERINO: Right.
13 DA PATRICK PERFETTI: And until those cases
14 advance their way through the court system, and,
15 probably, ultimately, to be decided by the Court of
16 Appeals, we won't know the ultimate answer as to how
17 that will work.
18 DA DAVID SOARES: And just to add a fine
19 point to what my colleague is saying, look, I know
20 part of the goal here was to create greater
21 efficiencies within the system, to make sure that,
22 if people are incarcerated, that they're not there
23 long, awaiting trial.
24 But what's really happened here, if you look
25 at the totality of these reforms, is that you've
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1 really created more litigation throughout the
2 process.
3 For example, even in something as -- as
4 simple as the bail issue, which is at the very front
5 of the system, there are opportunities for appeals
6 right at that -- in that moment, and hearings that
7 are required.
8 With respect to protective orders, we have
9 the ability to go to the Appellate Division and
10 appeal those decisions that are made by judges,
11 right then and there, which means we're litigating
12 much more on issues that we've never had to litigate
13 before; thus, requiring more bodies to be able do
14 just that.
15 DA DAVID HOOVLER: I cannot imagine.
16 I went to a town hall, and I spoke.
17 And, individuals, if your house gets
18 burglarized, and I explained what the law was.
19 And somebody said -- I'm just going to leave
20 it like this:
21 Somebody said to me: So you're telling me,
22 District Attorney Hoovler, that if my house is
23 broken into, and somebody takes something, and a
24 judge signs an order, the defendant and his attorney
25 can come back to my house?
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1 And I said: Yes. If a judge signs a lawful
2 order, then, yes.
3 The individual looked at me at the town hall
4 and said, "Not coming in."
5 SENATOR SERINO: And --
6 DA DAVID HOOVLER: And --
7 SENATOR SERINO: -- that's exactly what we're
8 afraid is going to happen.
9 DA DAVID HOOVLER: And then the discussion
10 was, How are we going to address that?
11 And as I said to the individual, I said that,
12 That -- that, again, that's your house, that's your
13 right. You have the right to do that.
14 But, again, that is going to happen,
15 somewhere, someplace, that somebody's just going to
16 say "no." And they're going to say, I don't care
17 that a judge signed an order. You're not coming
18 back to my house.
19 And, again, I think that individual that owns
20 that house, they're going to have -- they're going
21 to have standing to put up a fight to say they don't
22 want somebody in.
23 But, again, I think that's going to be a rare
24 instance, but, it's something that's going to
25 happen.
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1 DA WEEDEN WETMORE: Yeah, I think it's going
2 to be a rare instance.
3 I kind of have faith in my local defense bar,
4 that they're going to be very sensitive to the needs
5 and wishes of victims, and they're not going to go,
6 in every case, say, we want to go visit the crime
7 scene.
8 I'm sure that, where necessary, we will
9 assist them in providing access to a crime scene.
10 Maybe it has to do with impossibility of performance
11 of the crime under some scenario.
12 However, there are visiting defense lawyers
13 who come to town, and who may try to utilize
14 whatever they can under the Criminal Procedure Law.
15 And -- so when I talk with victims under this
16 law, we're going to have to say: Generally
17 speaking, we think it's not going to happen, but it
18 may. But we will try to protect you as much as we
19 can, we'll try to get that protective order.
20 We have judges, I think, that are very
21 sensitive to that in Chemung County.
22 So that is not as pressing a concern to me,
23 although it is a concern.
24 I've talked to a police officer on the way
25 here this morning. He says, Hey, we've talked with
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1 the victims. They are concerned about this.
2 The victims are really concerned. And
3 I think it's going to take some education from us to
4 assure them that that's going to be the exception
5 rather than the practice.
6 DA ANTHONY JORDAN: And I would just add one
7 quick point.
8 I think it comes right back to the same
9 thing, though, which is resources.
10 The victims in that instance will reach out
11 to us when they're served with that order to show
12 cause, and say, Do I need an attorney?
13 And we'll have to remind them that we are not
14 their attorney in that instance. And if they want
15 to litigate that, they would have to hire their own
16 attorney.
17 And I think to, you know, sort of bring it to
18 a close, perhaps for me, is, Chairman Bailey, we're
19 kind of in the same position here.
20 The Governor put this in his budget, and
21 there was no money.
22 And you are faced with a tough choice, like
23 those of all of your colleagues that are here and in
24 the other House.
25 Do we vote for it with money -- or, without
128
1 money, or do we vote against it?
2 And I -- what I am encouraged to hear here at
3 this table, with the broad spectrum of DAs, no one
4 is saying repeal it. Right? No one is saying, this
5 was a bad idea.
6 What people are saying is, we desperately
7 want to comply, but we need resources.
8 And it's a state law. And it just -- it
9 defies logic to me, that the State would not fund
10 such an important initiative.
11 And I think that certainly would be my own
12 goal and my own objective, because, without those
13 resources, I think we're going to have a difficult
14 time, you know, an impossible time, in complying
15 fully.
16 But, thank you.
17 DA MARY PAT DONNELLY: I would just like to
18 make one quick point. I know you want to get out of
19 here.
20 But, there's a reason plea bargains occur in
21 the first place. It's because we can't litigate
22 every single case.
23 So now we're looking at a situation where we
24 want to evaluate every case, from start to finish,
25 properly. And that's a -- that's what we should do.
129
1 But we can't do it on the same shoestring
2 that we've been operating on.
3 So there has to be a better way. We all need
4 to figure it out quickly, perhaps.
5 But I want you to know that we all want do
6 this. But as it stands, I don't -- I really don't
7 think it can be done.
8 SENATOR BAILEY: Senator Serino, were you --
9 were you finished with your -- with your line of
10 questioning?
11 Because I have -- I have a couple of more
12 questions before we allow our DAs to go back and do
13 the great work they do in their county.
14 SENATOR SERINO: Sure.
15 No, no.
16 And I just think -- I'm so happy that we had
17 this conversation today, and we all are on the same
18 page, that, you know, reforms are good.
19 But, you guys all have to be included in this
20 conversation.
21 So today your feedback is really important.
22 So anything that you think needs to be
23 adjusted, I think, would be critical at this point,
24 that we have Senator Bailey here today.
25 So thank you very much.
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1 SENATOR BAILEY: Thank you.
2 So I would have a -- just -- just one
3 comment, and then a couple of questions.
4 One, I'm glad we cleared up that is -- that
5 it is more exception than the rule.
6 Because, when it was proffered, the
7 conversation was more about, witnesses' homes will
8 be in danger, as opposed to specifically delineating
9 that, this is a limited circumstance, that a judge
10 has to approve, when the original photos and a video
11 of the crime scene are not insufficient.
12 We should lead with that, because you say you
13 don't intend to fear-monger. But when you lead
14 with, "people are going to have access to your
15 home," anybody, pro/against reform, is going to be
16 concerned, until you specifically delineate what the
17 statute says.
18 We have to lead with that.
19 Like, I think we -- I -- and I -- and I --
20 and I think -- I'm not -- I'm not telling you how to
21 do your job. But when you're telling
22 constituents -- right? -- and even when I tell my
23 constituents, and I'm -- and I was a sponsor of the
24 bill, I tell them the good, the bad, and what --
25 with the good -- what you consider to be the good,
131
1 the bad, or the ugly.
2 That is my duty as a state senator.
3 And when we have to instruct people, we've
4 got to instruct people what it's -- what it's about.
5 So that's the first thing.
6 DA Hoovler, when did you become the president
7 of the District Attorneys Association?
8 DA DAVID HOOVLER: July.
9 SENATOR BAILEY: So -- so you were the
10 president -- you weren't -- you -- you were not the
11 president during the -- the negotiations of the
12 budget.
13 DA Soares, were you the president during the
14 budget; right?
15 DA DAVID SOARES: Yes, sir.
16 SENATOR BAILEY: Did we have discussions
17 about this -- this particular legislation prior to
18 the enactment?
19 DA DAVID SOARES: Absolutely.
20 SENATOR BAILEY: I just wanted to make --
21 I just wanted to make that crystal-clear.
22 I just wanted -- I wanted to make it
23 crystal-clear, about that.
24 And the final question I wanted to have is,
25 witness safety.
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1 You mentioned that -- that there's
2 intimidation happening currently.
3 How does the enactment of this law, how would
4 that -- what -- what creates a tipping point?
5 Because, I -- I -- I ask that in earnest.
6 I want to know, what -- what about this
7 legislation would make -- would make it more
8 dangerous for witnesses, when no other jurisdiction
9 with this type of open-file discovery has had the
10 same circumstance?
11 DA DAVID HOOVLER: Disclosure of grand jury
12 minutes.
13 For -- since time began in the state of
14 New York, we've always, essentially, all prosecutors
15 have told, "Unless or until this case goes to trial,
16 what you say to the grand jury will be secret," for
17 a number of reasons: To protect -- to protect the
18 witness; to protect the investigation; to,
19 basically, protect undercover officers.
20 A myriad of reasons.
21 The fact that that is no longer going to be
22 true, I think that is the most significant factor of
23 all of it.
24 But I'll leave any fellow DAs to comment.
25 DA ANTHONY JORDAN: I think the other issue
133
1 is, within 15 days now of arraignment, we have --
2 we'll have to provide the names of all witnesses and
3 contact information.
4 And, oftentimes, that is -- what will be
5 adequate contact information, we don't know.
6 So in the instances where we have concern
7 with protect -- and we have an open policy --
8 open-file policy, where we have concerns of -- a
9 real concern of potential intimidation, we won't
10 provide that information.
11 We'll provide defense counsel with a summary
12 of what the witness observed, what they saw, but
13 we're not going to be giving out their name,
14 address, what have you.
15 And under this law, we have to, unless we're
16 successful in getting a protective order.
17 And the way the law is written, that is
18 within the sole discretion of the judge, but it
19 requires specific and articulable instances or
20 evidence of threats against that individual from
21 that individual.
22 And I don't have the statute in front of me,
23 so I'm probably misquoting it, but, that's a
24 different standard than, we have this very real
25 concern. We know the person's history. We know his
134
1 or her, co-conspirators', co-defendants', histories,
2 and so we will be protective of that information.
3 We lose control, and it gets turned over to
4 the discretion of a judge, that's going to have a
5 very different standard than what we would be
6 applying. And we have history with those standards,
7 and, typically, they're very narrowly construed.
8 And if you don't meet it, then the disclosure is a
9 must.
10 DA DAVID SOARES: I would also just add --
11 I would add just this one practical element here.
12 Look, when there are shootings that happen in
13 my community here, it's not as if, when police
14 respond, there are a number of people looking to
15 cooperate.
16 One of the ways that we're -- we're able to
17 provide assurances to people that their information
18 is not going to be divulged, is the secrecy of the
19 grand jury, and, also, the promise that, if and when
20 the time comes where I have to disclose this
21 information to the defense, I will do everything
22 that I can to move you from this area and provide
23 you with protection until after trial. And then we
24 can do other long-range planning.
25 That's been eliminated.
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1 That has been eliminated.
2 And, listen, that, what I'm saying right now,
3 is not about, good legislation, bad legislation.
4 This is about reality, and the reality that
5 we're dealing with.
6 Not one of you sitting here, not one of us,
7 I mean, whoever, wherever you stand on these issues,
8 wants to see our communities deteriorate because of
9 violence.
10 We're seeing it happen in some communities
11 more frequently than in others.
12 I think we're all here, trying to achieve the
13 same goals: You want greater transparency in the
14 criminal justice system.
15 You know, I'm the first to admit that, by
16 God, it's about time. Right?
17 To me, our cases are better in the earliest
18 phases of a prosecution than later on.
19 So delaying, you know, that opportunity for
20 that defense attorney to have meaningful
21 conversation with his or her client, that is not in
22 our best interest.
23 But the reality is, there are several laws
24 right now that are really impacting the way that we
25 operate.
136
1 Now, I got to get together with Tony Jordan a
2 little bit later and ask him: How did you get money
3 for Raise The Age, because we didn't?
4 And I don't know that any other county has
5 either.
6 But I want you to just take inventory of
7 something that's happened in the last two years.
8 16-year-old children, 17-year-old children,
9 in my county right now --
10 Facts, not fiction, I'm not -- I'm not
11 telling stories.
12 -- 80 percent of my shooters right now in my
13 county are 12, 13, 14, 15, 16, 17.
14 Okay?
15 These are cases that we would have, that we
16 would -- that we would have people on bail, or
17 holding them, pending the outcome of a case.
18 These cases are now going to family court.
19 Now, mind you, family court is an institution
20 designed to bring people back together. Right?
21 Probation is an institution that is designed
22 to provide community supervision over the least
23 dangerous people that we have in our community.
24 And right now, my shooters are going to
25 family court, where, on Monday, these kids are going
137
1 back to school, with ankle monitors -- right? --
2 putting others in that particular place in fear.
3 That's just the reality.
4 Do they need to be held behind bars?
5 Absolutely not.
6 Do we need to remove them to some other place
7 so that other people who -- their victims and other
8 people can feel safer?
9 Absolutely.
10 But that's not happening right now.
11 The law, as it's written, if I live on the
12 first floor and I'm with my wife, if she and I have
13 an altercation, and the police are summoned,
14 because, domestic violence falls under that
15 particular heading where bail can still be
16 considered and arrests can be made, I will be
17 arrested and I will be removed from my home.
18 But if I get into a fight with a person who
19 lives on the first floor, the second floor, or the
20 third floor, well, when the police are summoned,
21 that person is going to receive an appearance
22 ticket, and that appearance ticket is -- can be, you
23 know, filled out for 20 days out.
24 So where is the order of protection between
25 the period of -- of, you know, the police being
138
1 summoned and the date of arraignment?
2 Right?
3 Now, I mention these things, not because I'm
4 trying to demonize what's been done.
5 I mention these things because there are
6 consequences to -- to the way that -- that these
7 laws have been written.
8 And we need to get to the table, together, so
9 that we're able to fix those things and to address
10 some things.
11 I'm not suggesting to you that, you know, we
12 reinstitute bail here, or do that, or change.
13 What I'm talking about, is that there are
14 collateral consequences here that -- that for
15 purposes of public safety, we need to come together,
16 and to fix and to address.
17 SENATOR BAILEY: Thank you.
18 I just have one final -- well, one comment
19 and then a final question.
20 You mentioned, DA Soares, that we had a
21 conversation about this, about the people coming to
22 testify.
23 And -- and -- and -- and I would say this, in
24 public, in private: The reason why some people
25 don't testify is because they don't trust the law
139
1 enforcement system, because they have had negative
2 experiences with them.
3 DA DAVID SOARES: But, listen --
4 SENATOR BAILEY: And -- and -- and I know
5 we've had commonality.
6 I wanted to make sure I address that, and say
7 that, we spoke about that, and you agree with that.
8 But I just wanted to make sure I stated it
9 for the record, because we talk about root causes a
10 lot.
11 And both -- and -- and beneath the surface of
12 all the legislation, we should have a conversation.
13 You should all come talk to me at the beginning
14 session.
15 Not about discovery.
16 If you want to talk about discovery, fine.
17 But if you want to talk about anything that's
18 happening in your counties, my office, Room 609,
19 LOB, is open to you, period, to anybody that wants
20 to come by.
21 You got to make an appointment first, because
22 it might get a little crazy, but, you have to -- you
23 should come by.
24 The final question I would have is this:
25 You mentioned that -- that you -- that you
140
1 wanted an increase in funding.
2 Would you -- would you -- do you think that
3 defense attorneys and defense-attorney organizations
4 should also receive an increase in funding?
5 DA DAVID SOARES: My public defenders, my --
6 in Albany County, if you look at our budget, the
7 indigent defense system has more lawyers than I do,
8 they have more resources than I do.
9 And the reality is, that, in Albany County,
10 the indigent defense system, they handle anywhere
11 between 55 to 60 percent of the cases.
12 We still have to address those cases that --
13 that defendants are not indigent.
14 So we have private attorneys, as well as
15 indigent defendants, in addition to investigations
16 that we conduct ourselves.
17 So, when you talk about a system that is
18 balanced, absolutely.
19 Every person, indigent or wealthy, should
20 have counsel.
21 I do not begrudge my colleagues for receiving
22 the funds that they do, but I believe, right now,
23 with the additional burdens that have placed upon us
24 in terms of the discovery reform, we need to balance
25 that scale.
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1 DA PATRICK PERFETTI: I'd be happy to address
2 that, Mr. Chairman, and just so you're aware, I'm --
3 I came from the defense bar, only 2 1/2 years ago.
4 And in my county, there was a time that I served as
5 the deputy public defender.
6 And I argued back then that they needed to be
7 properly resourced.
8 Right now, the public defender's office in my
9 county, in terms of staffing, is equal in number to
10 my office.
11 And through indigent legal-defense grants and
12 resources, the public defender in my county has got
13 about a million and a half dollars to spend.
14 In order to comply with the statute, I need
15 less than half a million dollars, and it's -- it's
16 not forthcoming.
17 The public defender's got more money than he
18 knows what to do with.
19 In fact, there's been discussions that he's
20 looking for ways to try to find how to spend it.
21 One of the unique aspects of being in a rural
22 county like mine, where the public defender doesn't
23 have -- I mean, he has his staff, but, where he
24 can't handle a case because there's a conflict of
25 interest due to their being co-defendants, and such,
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1 things -- matters then get assigned out to an
2 assigned-counsel program.
3 There are several articles in the state
4 "Bar Journal" about a lack of attorneys in rural
5 areas.
6 And so, even though we have an
7 assigned-counsel program, it is far from robust.
8 It's got about -- about half a dozen attorneys that
9 are available. And even some of them are not
10 universally available.
11 There may be -- there may be certain town
12 courts they don't want to go to because those
13 sessions are at night.
14 There may be certain types of cases they
15 don't want to handle, whether it be sex-offense
16 cases, or cases where there's child victims.
17 And so, in that regard, they've got resources
18 in terms of money, but they don't have personnel.
19 I need much less money and I can get the
20 personnel. I mean, I've got -- I've got two law
21 schools within 30 miles of my county. I can get
22 the -- I can get the personnel.
23 I just need to figure out a way to fund it.
24 But I have always -- I've always said that,
25 you know, the defense should be in a parity with the
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1 prosecution in terms of resourcing.
2 SENATOR BAILEY: All right.
3 I greatly appreciate all of your time and
4 your attention to this -- to this very important
5 matter.
6 I thank you for the job that you do.
7 And I look forward to having serious
8 conversation, not just about discovery.
9 But any other matters that -- that come
10 before your counties, please feel free, again.
11 It's -- I don't want to say -- keep referring
12 to DA Soares, but he walked into my office and we
13 had a conversation.
14 The door is open for all of you.
15 Thank you.
16 (All witnesses say "Thank you.")
17 SENATOR O'MARA: Thank you.
18 SENATOR SERINO: Thank you.
19 SENATOR BAILEY: The next panel will be:
20 Attorney Terence Kindlon from Albany County;
21 Attorney Sandra McCarthy from
22 Rensselaer County;
23 And, Attorney -- Chief Attorney Kevin
24 Stadelmaier of the Legal Aid -- Stadelmaier, hope
25 I appreciate -- pronouncing that correctly --
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1 Legal Aid Bureau of Buffalo.
2 LEE GREENSTEIN, ESQ.: Excuse me, Senator?
3 I was scheduled for one. My name is
4 Lee Greenstein.
5 If it's okay, I'm going to join this panel.
6 SENATOR BAILEY: Sorry, and your name?
7 LEE GREENSTEIN, ESQ.: Lee Greenstein. I'm
8 on the 1:00 (parties cross-talking) --
9 SENATOR BAILEY: Lee Greenstein will be
10 joining this panel.
11 No objection?
12 TERENCE KINDLON, ESQ.: No objection.
13 SENATOR BAILEY: So ordered.
14 I may never be a judge, so I -- probably
15 won't ever be there, so I --
16 TERENCE KINDLON, ESQ.: You did that very
17 well, though.
18 SENATOR BAILEY: -- so, you know, I practice
19 a little bit. Right?
20 So...
21 So you may commence in the order that you
22 wish. Just state your name for the record prior to
23 the commencement of your testimony.
24 And thank you for your patience in -- in --
25 in coming to testify.
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1 TERENCE KINDLON, ESQ.: I'll go first.
2 Terry Kindlon, Albany, New York.
3 Senator Bailey, I -- I'm going to quote you
4 when I say that it's no secret that I disagree with
5 your colleagues. I do so respectfully.
6 Senator Jordan, I was troubled by the fact
7 that you described this legislation as,
8 quote/unquote, coddling criminals.
9 I haven't heard that phrase used in a
10 sentence since Nixon was in the White House.
11 And I'd like to emphasize something, that
12 we're talking about a point in the criminal justice
13 process which is one in which the -- the presumption
14 of innocent attaches.
15 These people who are pre-dispositioned are
16 not criminals. They're accused.
17 And all that we're asking for here is that
18 they be treated fairly.
19 Now, just briefly, who am I?
20 At present --
21 I'm probably the oldest person in the room.
22 -- but, at present, after almost 50 years in
23 this line of work, I started out as a law student,
24 working in Albany County Public Defender's Office,
25 in 1970.
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1 I, if nothing else, bring a great deal of
2 institutional memory to this conversation we're
3 having.
4 Over the years, first as an assistant public
5 defender, then for, in excess of 30 years, in
6 (indiscernible) private practice, and then, at the
7 end, as a public defender -- again, as the acting
8 public defender in Albany County, I've had about
9 175 jury trials to verdict, 36 of which were murder
10 cases. A couple of those were in federal court.
11 I'm capital-qualified when we used to need
12 that designation in New York State, before we got
13 rid of that blasted death-penalty statute.
14 I'm designated as learned counsel in federal
15 court.
16 And I was actually in the office the day that
17 the Criminal Procedural Law which we're discussing
18 here came into effect, which was September the 1st
19 of 1971.
20 And, by the way, the CPL didn't really help
21 the very dismal discovery availability that we had
22 at the time.
23 The Criminal Procedure Law, specifically,
24 Section 240, which deals with discovery, is,
25 essentially, meaningless.
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1 We don't get -- we have not gotten discovery
2 in New York State unless the district attorney's
3 office chooses to give it to us.
4 Frankly, the discovery material, at best, is
5 trickled out.
6 The section, 240, or the article, 240, of the
7 Criminal Procedure Law was toothless.
8 After it was slightly revised in 1978, it was
9 still toothless.
10 When that, combined with the mandatory
11 minimum sentences provided by the Rockefeller drug
12 laws, a very dark period in New York State criminal
13 prosecution set in, because what you had was, you
14 had prosecutors who had this incredibly powerful
15 weapon of mandatory minimum sentences, and you had
16 criminal defense lawyers who were dealing with all
17 of these unknowns, because so many of the cases
18 arose, allegedly, through confidential informants
19 and -- and street sales.
20 And what that did, what that toxic mixture of
21 circumstances did, was it began the formation of a
22 lot of really bad habits that, essentially, almost
23 killed off trial practice in New York State
24 altogether.
25 And I have to tell you, my -- my focus is
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1 primarily on indigent defense.
2 I was in the beginning, as I said, an
3 assistant public defender.
4 I finished up that way.
5 And, currently, my law partner and I, my law
6 partner is my wife, we are involved in doing
7 mentoring for the New York State Office of Indigent
8 Legal Services.
9 Everybody knows that this situation gave rise
10 to a massive prison population; that most of those
11 people in prison are people of color, or they're
12 indigent defendants; and that most of them were
13 represented by assigned counsel, who, until very
14 recently in upstate, were working with extremely
15 limited resources, as so many of them were young
16 lawyers with no training.
17 And, frankly, my experience was that, judges
18 were generally indifferent to the lack of discovery.
19 We would make a discovery demand. The
20 district attorney would give us what I always
21 affectionately referred to as a "bread sandwich,"
22 nothing there.
23 We would make a motion to compel.
24 The judge -- judges were generally
25 indifferent.
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1 I actually had, and this is a classic, a
2 local county court judge look at me and smirk, and
3 say, Well, your client knows what he did.
4 Now, that's not the definition of
5 "discovery," "your client knows what he did," but
6 that's what I was told more than once.
7 I have spoken with assistant district
8 attorneys, who being, I hope, facetious, referred to
9 the paper shredder in their office as the "Brady
10 machine."
11 You know, power corrupts, we know this for a
12 fact.
13 And the reality is this:
14 I had a -- and this is a good example of what
15 I'm talking about.
16 I had a -- the last trial -- last serious
17 trial that I did a couple of years ago, and it was a
18 four-week trial, and I had to pull three
19 all-nighters during the course of that trial, and
20 I decided, at the age of 69, that's enough of that.
21 So I throttled back a little bit.
22 But in that trial, I received, after several
23 requests, copies of the police reports.
24 Now, under the new sec -- under the new law,
25 we get the police reports.
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1 I had to beg and plead to get police reports
2 in this case.
3 And I swear to God, what I found when I got
4 the police reports was that, a lot of information
5 was redacted, including, and I'm not making this up,
6 the telephone number of the police department from
7 which the report had come.
8 So, obviously, they had some -- some person
9 just in there redacting everything of any
10 significance.
11 I had a preliminary hearing in a very serious
12 case. And my client had given a statement, a
13 written statement. And the district attorney -- the
14 assistant district attorney refused to turn it over
15 to me because it wasn't required to be turned over
16 under the Criminal Procedural Law, Article 240.
17 In a nearby county, I had no discovery.
18 I made a motion to compel.
19 The judge basically shined me on and said,
20 Well, you know, the DA knows what his responsibility
21 is.
22 And I filed another motion to compel, and
23 I got the same thing.
24 As so frequently, typically, happened, we got
25 to trial. And on the morning of trial, the DA came
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1 in, and took a box full of papers and dropped them
2 on my desk, like that (demonstrating), and says,
3 There's your discovery material.
4 That is -- that makes it impossible for a
5 criminal defense lawyer to do his or her job.
6 You know -- and the reality is this:
7 Thorough discovery is going to facilitate the
8 disposition of cases.
9 You know, if -- if I'm talking to a client,
10 and he says, What do they got? Why should I plead
11 guilty? What do they have?
12 And I say, I don't know. They say they have
13 this, they say they have that, they say they have
14 the other thing.
15 And he says, Well, what -- and I've heard
16 this 1,000 times in last almost 50 years: Do they
17 have any statements?
18 I guess.
19 Well, can I see it?
20 No. I can't see it either.
21 You know, I have -- I -- I -- I'm friends
22 with some of the assist -- some of the district
23 attorneys who were up here, and I know them to be
24 good men and women.
25 But, they've -- they've been happy with the
152
1 situation as it has existed for the last 50 years.
2 They've resisted change through their
3 District Attorneys Association.
4 You know, and what I think has really forced
5 change recently is this, an observation:
6 People on the panel purport to not have
7 any -- you know, to say that, you know, well,
8 this -- this law popped out of -- popped out of the
9 woodwork suddenly, that's not true.
10 According to public records, the New York
11 State -- the New York City Legal Aid Society was
12 working on this in 2009.
13 Discovery for Justice was working on it in
14 2012.
15 2014, New York State Bar Association Task
16 Force Report.
17 2015, New York State Bar Association.
18 2017 through 2019, Repeal the Blindfold.
19 Senator, I know you've been putting a lot of
20 time and effort into this effort over the last
21 several years.
22 And, what happened was this:
23 This legislation finally became possible when
24 there was a change in the makeup of the Legislature.
25 Let's not -- let's not be -- let's not be
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1 naive about that.
2 And the statute is brilliantly conceived. It
3 is developed with broad -- with input from a broad
4 spectrum of people. It's carefully constructed to
5 sort of preemptively negate all the usual excuses
6 that we became so tired of listening to.
7 DAs are obligated to do justice.
8 This statute gives them the means to do that.
9 You know, and instead of acting like
10 William Buckley, standing (indiscernible) history,
11 yelling, "Stop," they should be explaining the law
12 instead of just complaining about it.
13 They're dragging their feet. They're making
14 baseless claims. They're scaring people.
15 Oh, if we divulge the grand jury minutes, all
16 these witnesses are going to be killed.
17 That's nonsense.
18 40 states, 40 states, have disclosed this
19 kind of information for decades.
20 My wife practiced in Phoenix, Arizona, for
21 11 years before I met her.
22 I met her in 1988.
23 Phoenix, Arizona, was doing complete
24 open-file discovery in the '70s.
25 So to say that this is, you know, terrible,
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1 it's just -- it's just -- it's just not -- just not
2 so.
3 Our -- our old statute is unfair, and it's
4 unwise, and, worse, it has positioned the great
5 Empire State at the absolute bottom of the -- of the
6 states.
7 We can change it.
8 We have changed it.
9 All we have to do, I think, is put a sincere
10 effort into observing its terms and its conditions.
11 There's no reason why New York State should
12 be worse than Texas when it comes to discovery, and
13 we are.
14 We are worse than Texas.
15 We are worse than Arizona.
16 We are worse than New Jersey.
17 We are worse than any number of places.
18 Places where open-file discovery is a
19 reality, not some noble gesture by a district
20 attorney who is being a good person by doing it, the
21 law has to require it, and it does.
22 And I think the district attorneys are just
23 going to have to adjust to that.
24 So, anyway, I think I covered everything.
25 Most of the -- most of these reforms that are
155
1 going to cost $20 million, baloney, it is malarkey.
2 Most of these -- most of these reforms can be
3 accomplished with a photocopying machine.
4 There's no magic in getting a report from,
5 you know, three blocks away, and just making another
6 copy, or, even electronically, forwarding it to the
7 defense lawyer.
8 District attorneys are going to have to --
9 and we defense lawyers know all about this --
10 they're just going have to move a little bit faster.
11 They're going to have to change a lot of bad
12 habits that have set in over the years.
13 And, granted, it won't be perfect.
14 You can't let perfection be the enemy of
15 good, but it's doable.
16 And we all can do it if we all work together
17 for the benefit of our clients and the criminal
18 justice system of the state of New York.
19 And that's all I got to say.
20 Thank you very much.
21 SENATOR BAILEY: Thank you, Mr. Kindlon.
22 Again, I want to make sure I make the same
23 reminder: Please, let's try to limit our testimony
24 as much as we can.
25 Thank you for your testimony.
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1 Who will be next to testify?
2 LEE GREENSTEIN, ESQ.: Senators, my name is
3 Lee Greenstein.
4 I worked for the criminal defense division of
5 the Legal Aid Society in Queens, New York, from 1986
6 to 1990.
7 And I've been a criminal defense lawyer in
8 the Capital District since 1991 when we moved here.
9 I have represented people, from murder
10 defendants, to DWI, to burglaries, everything in
11 between.
12 I represented clients in Queens during the
13 crack epidemic in the late '80s, up until today.
14 So I'm here to tell you what I have seen, and
15 how some of the things that you're considering, how
16 I've experienced them.
17 When I -- I would like to first remind
18 everybody who we're talking about, because it's my
19 sense, and the sense of any other defense lawyer
20 I know, that the previous discovery laws were
21 written for an unknown frightening class of
22 defendants.
23 When I meet clients for the first time, and
24 I want them to trust me, I tell them that I work for
25 them, and that they're flesh and blood, and they're
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1 my responsibility.
2 And those flesh-and-blood people are not the
3 sensational people you read in headlines, but,
4 they're your neighbors, your family; they're people
5 that we all know.
6 And my sense is that, for the first time,
7 this legislation was written with real people in
8 mind, not the rarest and most unusual frightening
9 people that you might see in headlines.
10 The people that testified this morning, the
11 district attorneys, many of whom I know and am
12 friends with, who are all well-intentioned,
13 well-meaning, hard-working people, they have a lot
14 of power, and they don't want to give up that power,
15 because they can control what they give and when
16 they give it to the people who are accused of
17 crimes.
18 And how are they trying to keep that power?
19 We heard terms this morning like: What's
20 going to happen if this law goes through when it's
21 supposed to go through?
22 They used terms like:
23 Chaos.
24 Roulette with public safety.
25 Witness intimidation.
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1 We don't want to see communities deteriorate
2 because of violence.
3 I have news for you, Senators: The sky will
4 not fall, the world will not come to an end, there
5 will not be mayhem in the streets, if you allow what
6 has been legislated, which is reasonable discovery,
7 to go forward.
8 I'd like to address Senator Jordan's concern
9 about witness intimidation.
10 Witness intimidation is another way for
11 saying, a defense lawyer and his investigator going
12 to someone's home to ask what happened.
13 And that person cannot answer the door,
14 cannot answer the phone, or, if they want, they can
15 talk to them.
16 It's the same thing that happens now when
17 police officers and the staffs of district
18 attorneys' office investigators go speak to the same
19 people.
20 Okay?
21 But the reality is, is that defense lawyers
22 and defendants know who the victims are now, the
23 alleged victims. They know who the witnesses are.
24 Okay?
25 This law, there's no law that you can write,
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1 that is going to disallow people who are charged
2 with crimes and their lawyers from trying to speak
3 to people who are accusing them of crimes.
4 And I heard one of the prosecutors say this
5 morning that it's an "unknown world." They don't
6 know if judges will grant protective orders.
7 Senators, I guarantee, if a prosecutor goes
8 to any judge in this state and gives a reason why
9 it's a gang case, or it's a domestic-violence case,
10 or there's something particularly dangerous about a
11 case, I guarantee you they'll get a protective
12 order.
13 There will not be a -- a -- you know, what
14 are we afraid of?
15 Okay?
16 Nobody on this panel wants to wake up in the
17 morning and read about harm that came to somebody
18 because of legislation that was passed by this body.
19 Okay?
20 And the truth is, is that the only thing
21 that's going to change is the speed at which
22 prosecutors have to deliver the information to
23 defense lawyers and those who are accused of crimes.
24 And when they can't, cases are not going to
25 be dismissed. They'll explain to the Court.
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1 And when they shouldn't, because it's
2 dangerous, judges will allow them not to do it.
3 There will be no change, there will no death,
4 there will be no anarchy or chaos, as the
5 prosecutors would like you to believe.
6 As Mr. Kindlon just said, it's a reality
7 they're going to have to adjust to.
8 In an effort to convince you that they can
9 never, or can't do it now, I just want to clear up a
10 few things.
11 We heard many, many times that: How can we
12 get grand jury minutes to defendants in 15 days?
13 There are never grand jury minutes in
14 Albany County within 15 days.
15 People don't get indicted within 15 days.
16 And a judge is not going to dismiss a case
17 because a stenographer has not produced it, if, on
18 those rare occasions, and they are rare occasions,
19 that there are grand jury minutes.
20 And I worked in Queens. The vast, vast
21 majority of the time, there is not an indictment
22 within 15 days.
23 911 calls, they get erased within a certain
24 time period, depending on the county, if they're not
25 requested in a certain time period.
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1 They are all preserved immediately.
2 All right?
3 The rest is paperwork.
4 These are not great burdens that are going to
5 overwhelm these offices.
6 And it -- the simple reality is, it will be
7 difficult, but people in the state have been waiting
8 many, many years for rights that have been
9 legislated.
10 And I guarantee you something else.
11 That the county legislators that they're
12 going to before now, who won't give them the money?
13 When the law is passed, they'll give them the money,
14 and they'll get the resources that they need.
15 SENATOR BAILEY: Will that be all,
16 Mr. Greenstein?
17 LEE GREENSTEIN, ESQ.: That will be all.
18 I skipped the script, as you asked.
19 So, I appreciate your time.
20 SENATOR BAILEY: Thank you very much.
21 Next person to testify?
22 KEVIN M. STADELMAIER, ESQ.: Thank you.
23 Good morning, Senators, and, Senator Bailey,
24 and member of the Codes Committee.
25 Thank you for allowing us to come here today.
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1 My name is Kevin Stadelmaier. I'm the chief
2 attorney of the criminal defense unit for the
3 Legal Aid Bureau of Buffalo.
4 With 31 attorneys and 14 support staff,
5 representing approximately 12,000 clients per year
6 in Buffalo City Court and New York State
7 Supreme Court and Erie County Court, we pride
8 ourselves in providing the highest quality of
9 client-centered representation without regard to
10 cost.
11 I'm also the legislative co-chair of the
12 New York State Association of Criminal Defense
13 Lawyers.
14 And although my colleague Karen Thompson
15 testified in the September 9th hearing in
16 New York City, my comments today are made with the
17 full backing of NYSACDL.
18 We anticipate the reforms that we've talked
19 about here today will bring a heretofore unseen
20 level of fundamental fairness to a process that, for
21 many years, was fundamentally unfair.
22 No longer will our clients be held on unfair
23 bail, awaiting trial, only to be offered plea
24 bargains without first being apprised of all of the
25 evidence against them.
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1 Under the outgoing discovery statute in
2 New York, unlike most of the rest of the country,
3 including such liberal outposts as Texas, as pointed
4 out in Mr. -- by Mr. Kindlon, prosecutors and police
5 are not required to provide police reports and other
6 crucial evidence or discovery to people facing
7 criminal allegations, or -- or their attorneys,
8 until trial begins months or years after an arrest.
9 More than 95 percent of cases never make it
10 to trial. They either end in pleas or dismissals.
11 That means nearly everybody who is charged
12 with a crime might never see the evidence collected
13 by the police and prosecutors.
14 This "Blindfold Law" contributed to mass
15 incarceration, wrongful convictions, and court
16 delays.
17 This injustice had hugely disproportionate
18 impacts on Black and Latinx New Yorkers who are far
19 more likely to be arrested and to be jailed on
20 unaffordable bail.
21 The pre-trial system effectively operated as
22 a tool of coercion to plead guilty regardless of
23 guilt or innocence.
24 The criminally -- criminal discovery reform
25 legislation including -- included in this year's
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1 budget generally requires all evidence and
2 information in a criminal case to be turned over as
3 soon as it is practicable, and no later than 15 days
4 after a criminal case begins, and, in some cases,
5 extended to 45 days, and on an ongoing basis.
6 And to clear up a misconception that was
7 proffered by the district attorneys up here earlier,
8 vehicle and traffic violations, speeding tickets,
9 are not under this statute. They do not require to
10 turn over discovery in speeding-ticket cases within
11 15 days.
12 The new speedy-trial statute addresses that,
13 but not the discovery statute.
14 It also mandates that prosecutors make these
15 disclosures prior to the expiration of any plea
16 offer.
17 It further mandates that a prosecutor's plea
18 offer may not be conditioned on the waiver of the
19 discovery obligations, an important provision to
20 prevent abuse of this system.
21 Early and complete disclosure promotes
22 fairness in the criminal justice system. As such,
23 the law does not limit discovery to the specified
24 list of discoverable items.
25 The party can request, and the Court can
165
1 order, disclosure even if it is not specified within
2 the law, as long as it's relevant to the case.
3 This landmark reform also allows for the
4 defense to adequately investigate a case so that,
5 even if items are not within the control or
6 possession of the prosecutor, the defense can still
7 move to preserve evidence or a crime scene, and the
8 defense can subpoena any additional items that are
9 not in the prosecutor's control.
10 In the first Senate hearing on discovery
11 reform implementation, several prosecutors stated
12 that the law would require them to turn over DNA lab
13 results before they are completed, and then failure
14 to do so would result in a case being dismissed.
15 Contrary to these fear-mongering talking
16 points, the law does not require them to turn over
17 what does not yet exist, as is common sense.
18 Furthermore, the large -- the range of
19 sanctions listed in its statute offer judges a
20 variety of options for ensuring compliance.
21 And it is, frankly, absurd to suggest that
22 judges will dismiss charges for failing to turn over
23 DNA lab results that have not yet been completed.
24 More to the point, prosecutors will have to
25 turn over drug-lab results as soon as practicable,
166
1 which are often completely complete early in a case,
2 but under the outgoing discovery statute, are
3 withheld for many months.
4 To address some issues on victim and witness
5 safety, I'd like to offer five points that we should
6 all keep in mind.
7 In the vast majority of cases there are no
8 risks to witnesses. Often there are no civilian
9 witnesses at all.
10 The new law empowers judges to order that any
11 and all evidence be withheld from people facing
12 criminal allegations and their attorneys in the rare
13 cases in which witness safety might be at risk.
14 Prosecutors from other states have endorsed
15 reform, as have crime-survivor advocates here in
16 New York.
17 Three: Judges already of the tools to
18 protect crime victims and other witnesses, including
19 orders of protection, which prohibit all contact
20 between defendants and the other party.
21 Four: Prosecutors already have tools to
22 protect crime victims and other witnesses, including
23 felony charges, for violating orders of protection
24 or intimidating witnesses.
25 Discovery reform is not an experiment.
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1 The vast majority of other states have
2 enacted legislation that both requires the timely
3 disclosure of evidence, including witness
4 information, and keeps survivors and witnesses safe.
5 You may hear that the truncated timelines in
6 obtaining and provisioning discovery are one of the
7 main sticking points to implementation.
8 And while we agree that the timelines will
9 require fundamental changes in prosecutorial
10 practices, the stakes are too high to allow DAs'
11 offices to hide behind (indiscernible) logistical
12 excuses any longer.
13 Prosecutors in other states with early
14 discovery have long complied were their state's
15 laws. And with the right administrative philosophy,
16 this can be readily accomplished here.
17 And, further, the statute allows for
18 extension requests where they are appropriate.
19 The statute also recognizes that people
20 should make decisions about guilty pleas, not only
21 voluntarily, but knowingly.
22 Having early access to the items that we've
23 described, and to review them with our clients, and
24 advise them of plea offers, is of critical
25 importance.
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1 (Indiscernible) our attorneys were forced to
2 counsel defendants on life-altering plea offers,
3 many with dire collateral consequences, without the
4 benefit of knowing everything there was to know
5 about a particular case, no longer will they have to
6 do so.
7 These reforms fundamentally alter the
8 landscape of the attorney-client relationship in
9 criminal cases, as we can now have a fully informed
10 discussion about available options, with the benefit
11 of having all the factors available for review.
12 And as Mr. Kindlon said, it's likely to
13 result in quicker outcomes, and better outcomes.
14 What should not be lost in all this, is the
15 district attorney offices around the state, instead
16 of fighting tooth and nail to gain ground against
17 the reforms, should instead see themselves as
18 partner in implementation of these reforms.
19 Although there will always be a fund -- an
20 adversarial relationship between prosecutors and
21 defense counsel, an overriding principle of
22 fundamental fairness should always permeate, and
23 prosecutors must always seek to do justice rather
24 than leverage power-secured convictions.
25 While some prosecutors' offices take an
169
1 obstructionist and alarmist position relevant to
2 these reforms, the district attorney of Erie County,
3 John Flynn, has taken a different tact.
4 DA Flynn and his key deputies have been
5 working collaboratively with our office on the
6 implementation of these reforms.
7 Instead of seeking ways to subvert the
8 reforms or undercut -- undercut the required
9 provisions, they have been diligent in meeting with
10 stakeholders, and reforming their administrative
11 processes to assist us with the logistics of these
12 complicated reforms.
13 It is their credit, and, in our view, are a
14 model for the rest of the state prosecutors to
15 follow.
16 While we expect that they will, as always,
17 zealously prosecute those they believe guilty of
18 crimes, they absolutely recognize that these reforms
19 are important, and require substantial efforts to
20 effectuate them as intended.
21 And for that, we offer our thanks do
22 DA Flynn.
23 In conclusion:
24 The Legal Aid Bureau of Buffalo recognizes
25 that change is always difficult.
170
1 We further recognize that there are certain
2 factions who will never agree that the reforms, as
3 highlighted, are a positive development.
4 While we strenuously disagree, we understand
5 that position.
6 However, after years of watching our clients
7 languish under an unfair criminal justice system, a
8 system where prosecutorial efficiency and pragmatism
9 was prized over transparency and fairness, it is
10 clear that we can never go back.
11 These reforms were hard-fought over a period
12 of years and thoroughly considered in advance.
13 These reforms demonstrate New York State's
14 commitment to bringing our criminal justice system
15 into the twenty-first century.
16 The reforms recognize that no longer can
17 indefinite pre-trial incarceration and trial by
18 ambush be the normative state.
19 These reforms were achieved through
20 deliverative (sic) -- were deliberative, and
21 designed to impart fundamental fairness.
22 And we urge you to continue to support and
23 uphold the important gains that were achieved.
24 Thank you.
25 SENATOR BAILEY: Thank you.
171
1 SANDRA McCARTHY, ESQ.: (Microphone off.)
2 My name is Sandra McCarthy -- I have a
3 little cold, I'm sorry.
4 My name is Sandra McCarthy. I'm the conflict
5 defender in Rensselaer County, which means that,
6 when someone is poor, and they are accused of a
7 crime, they are assigned a public defender office.
8 But there are times when the public defender
9 cannot take the case because of a conflict of
10 interest: They represent one of the parties in
11 family court. There's a co-defendant. They
12 represent a witness or the crime victim.
13 And that is where my office comes in.
14 So we represent the same types of cases that
15 the public defender's office would take. Felonies,
16 misdemeanors; the same exact types of cases.
17 Before I had this job, I did practice on the
18 CJ panel in federal court.
19 I've done all kinds of different indigent
20 defense, including children's law.
21 And, now, I've been doing this for -- I think
22 for about 14 years.
23 So, I know that I should say to that, I'm
24 very honor to be here, and somewhat humble to be
25 here too, before all of you.
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1 In Rensselaer County last year, I just pulled
2 a little bit of data:
3 We had 147 cases that closed after a plea of
4 guilty after an indictment.
5 And 75, about half of those, that number were
6 pled as a result of what we call an "SCI," and there
7 were 5 trials.
8 This is by the public defense, not the
9 private defense.
10 This would just be public-defense numbers
11 from my office and Mr. Turry's (ph.) office, the
12 public defender.
13 The way that the discovery statute works now,
14 the defendant is not entitled to even ask for
15 discovery until the case has been indicted.
16 They can't even ask.
17 The DA has six months to decide if they're
18 going to indict.
19 So during that six months we don't even have
20 the right to ask for discovery.
21 We can't even ask.
22 I know that there was some talk about
23 voluntary discovery, and things like that, by the
24 DAs that were up here.
25 That is not uniform, even within a county.
173
1 One assistant DA may be really willing to
2 give you information, and another one says
3 "absolutely not."
4 So it's not -- not only not uniform from
5 county to county, but not even really uniform within
6 a county.
7 You have some DAs you get along with better
8 than others. Some that are more -- I was going to
9 say, fair-minded, than others.
10 In any event, that six months goes by. And
11 during that six months, there's often plea-bargain
12 offers being thrown out all the time. Right?
13 The DAs, as they said, have all the power.
14 Right?
15 You have this crazy high maximum, 15 years,
16 25 years. Right?
17 And you have everything down to what we want,
18 which is a dismissal. Right?
19 And all the space in between.
20 And all this six months is going by, and the
21 DA is throwing out plea-bargain offers.
22 How about two plus two? Two to six?
23 Whatever.
24 And we're getting these plea-bargain offers.
25 The defendant often risks higher penalties
174
1 after indictment, because the way the sentencing
2 structure works, particularly when they're indicted
3 on a violent felony offense.
4 So you have a young kid facing a violent
5 felony as a house burglary, or something like that.
6 The DA's throwing out plea-bargain offers,
7 two to six, (indiscernible) whatever they're
8 offering.
9 If we wait until that defendant gets
10 indicted, that young person, our plea-bargaining
11 offers are going to be restricted.
12 For example, we would not be able to plea
13 that defendant to a non-violent felony -- right? --
14 that two-to-six offer I threw out.
15 That's what we call a "non-violent felony
16 offer" -- right? -- minimum of two, maximum of six.
17 Once that young person is indicted, that
18 offer, by law, cannot be given. Right?
19 So, we go to the defendant and say, He offers
20 two to six.
21 And they say, What's the proof?
22 And we say, We don't know.
23 And they say, Really?
24 And we say way say, Really. We don't know.
25 We not only don't know, we can't even ask for it.
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1 We have to wait until after you're indicted on that
2 violent-felony event, where now you're going to have
3 to plead guilty to a violent felony -- right? -- and
4 any plea-bargain offer.
5 Am I making -- am I doing this good --
6 OFF-CAMERA SPEAKER: You're doing great.
7 SANDRA McCARTHY, ESQ.: -- explaining it this
8 way?
9 [Laughter.]
10 OFF-CAMERA SPEAKER: You nailed it perfectly.
11 OFF-CAMERA SPEAKER: That was good.
12 SANDRA McCARTHY, ESQ.: And so it's like a --
13 it's like a crapshoot.
14 And like I do do public law, and I've also
15 done public law. But, as the private attorneys here
16 pointed out, like, this isn't about public law.
17 The bail-reform statute is about public law.
18 Right?
19 You or I would be able to bail ourselves out
20 if we were accused of something -- right? -- and be
21 able to fight the case from the outside.
22 But this statute is not about public law.
23 If you or I were accused of something, and we
24 made bail and we were on the outside, we still
25 wouldn't have access to any information about what
176
1 was going on with our case.
2 Right?
3 This is about everybody.
4 This is about rich people, poor people;
5 anybody who's accused of a crime in New York State.
6 So, to me, my dream world would be where the
7 public defense, the public defendants, the poor
8 people, were afforded same types of protections as
9 the rich people -- right? -- where maybe they
10 wouldn't make the arrest in the first place, unless
11 they actually had evidence.
12 The statutes of limitations are very long.
13 I think two years on misdemeanor, six years
14 on felonies -- right? -- or homicide forever.
15 So if the -- if the law enforcement delays
16 the arrest until they actually have evidence --
17 right? -- then that would solve a lot of these
18 problems.
19 Then the DA would have their file because law
20 enforcement would delay.
21 There's no doubt that this is going to be a
22 huge change for law enforcement and how law
23 enforcement does things, instead of just going out
24 and arresting people, without knowing if the drugs
25 are really drugs; without really having any
177
1 witnesses; without, whatever.
2 One more thing I did want to point out about,
3 what we call "Brady."
4 "Brady" is -- is evidence that could be
5 favorable to the defense. Right?
6 And it is true that we now have a statute, as
7 well as constitutional law, saying that, the
8 government/the DA has to hand over to the defendant
9 exculpatory information. Right?
10 But we have mountains of case law, saying
11 that it is not the DA that decides what is
12 exculpatory. It is the defendant.
13 Because they routinely don't give us what we
14 call "Brady," because they say, it's not Brady, it's
15 up to us to analyze our defendant's case, and decide
16 if that is exculpatory or not. Not up to the DA to
17 figure it out.
18 So by having the whole file turned over
19 early, we can decide.
20 That would resolve a lot of those Brady
21 issues that we have now, whether it's Brady or
22 whether it's not Brady.
23 It doesn't matter if it's Brady. We get it
24 all. Right?
25 And I know that my colleagues did a great job
178
1 with the witness-protection situation.
2 But I'm also hoping, in hearing about
3 Senator Jordan's concerns, that maybe law
4 enforcement might not make that arrest with the
5 domestic-violence case for something really serious,
6 where someone's life is in jeopardy, until they have
7 already protected that witness.
8 Right?
9 It's not more resources; it's just when you
10 put them into place.
11 Maybe that person needs to work with a better
12 women's shelter to be safely removed before the
13 arrest is made.
14 Right?
15 So a little bit more investigation, law
16 enforcement goes in on the front end before arrests
17 are made, instead of afterwards, then trying to
18 scramble to get a file together.
19 But, in any event -- there was one more here.
20 Oh.
21 One of my colleagues from the district
22 attorney's office there brought up the idea of
23 sandbagging.
24 That, with defendants, defense attorneys say
25 that, DAs push cases to trial, and then sandbag us
179
1 with evidence -- boxes of evidence.
2 That's not really my experience.
3 It's actually kind of the opposite, that
4 DAs, not -- not -- I'm not saying (indiscernible),
5 but everyone's overwhelmed with work. Right?
6 So what they -- they don't push cases to
7 trial, not in my experience.
8 Instead, they try to force these pleas early
9 on, to get rid of the case before they've even
10 looked at it.
11 I mean, that's one thing that really struck
12 me this morning in hearing them.
13 They're, like, we haven't even seen the
14 Information yet.
15 And I'm thinking:
16 Then how are you making a plea-bargain offer?
17 And how are you saying three to six, two to
18 four, five plus five?
19 Like, how are you doing that when you haven't
20 even seen the file?
21 How is that truth-seeking?
22 How is that justice?
23 One of my -- the colleagues here came in and
24 said, We're going to spend more time now on
25 discovery compliance than seeking justice.
180
1 And I was, like, what?
2 That is seeking justice.
3 You should see your file before you throw out
4 a number just to get rid of the case. And then tell
5 us that, if we ask for discovery, our plea-bargain
6 offer is going to go higher. Or, if we get
7 indicted, our plea-bargain offer is going to go
8 higher.
9 That's -- I don't see them pushing things to
10 trial and sandbagging us. That's not what I see.
11 I see them pushing pleas before even they
12 know what's in the file.
13 So, anyway, I apologize for going over.
14 SENATOR BAILEY: So thank you,
15 Ms. McCarthy.
16 And I wanted to thank everybody for your
17 patience.
18 I know the -- you know, the time schedules we
19 gave, it's a little skewed, but we want to make sure
20 we have a full and fair discussion.
21 And I hope you would avail to my -- to myself
22 and my colleagues for -- for some questioning.
23 The first question that -- that I would have,
24 would be, you mentioned -- you mentioned a lot of
25 things. Right?
181
1 But I want to mention, also, I want to --
2 I want to -- I want to thank DA John Flynn, who --
3 who came to the New York City hearing on the
4 9th of September.
5 I would have thought he would have come to
6 Albany, but, you know, DA Flynn made -- made it down
7 there.
8 So I wanted to thank him as well before
9 I started my -- before my comments.
10 You mentioned a lot of the onus being on the
11 district attorney because they -- they -- they have
12 the power. Right?
13 But this law is going to take effect
14 January 1st.
15 What can defense attorneys do to -- to
16 effectuate a smoother transition, in your opinion?
17 Any of you may answer.
18 KEVIN M. STADELMAIER, ESQ.: I can tell you
19 generally what we've done in my office.
20 When the reforms came out, we immediately
21 convened some focus groups inside our office,
22 consisting not only of our support staff, but also
23 some of the attorneys on staff, to go through the
24 law and figure out, not only, you know, what it gave
25 us on the legal side, but, also, what the
182
1 administrative challenges were going to be.
2 And out of those focus groups, and then out
3 of meetings with the district attorneys, which we've
4 been having pretty consistently since about June,
5 we've talked about centralized discovery apparatus.
6 So, in our office, we're tasking specific
7 support-staff people to deal with the discovery
8 inflow that's going to be coming.
9 We expect, you know, a vast amount more than
10 we had received in the past, pursuant to the new
11 regs.
12 And we've spoken with the district attorney's
13 office about doing a similar thing, centralizing
14 discovery in their offices.
15 So it goes from the police agencies they have
16 to deal with, to one centralized location. And
17 then, packaged up, sent to us, with inventories of
18 what's there and what's not, for us to obtain in one
19 centralized location. Log it into our systems, and
20 then distribute it out to our attorneys, tracking
21 everything that comes in, from start to finish.
22 I think if we didn't do it that way, it just
23 came in scattershot, it would be near impossible to
24 make sure that we were maintaining everything we
25 need to maintain.
183
1 So, those types of things have been
2 happening.
3 And I'm serious when I say, I mean, District
4 Attorney Flynn has been very proactive with this.
5 He's been meeting with us regularly.
6 I've been meeting with his deputies on a
7 weekly basis.
8 They are fully engaged in this process.
9 And if they weren't, I can't imagine what
10 we'd all be facing come January 1st.
11 I'm sure it will be worst than even what I'm
12 imagining right now. So...
13 LEE GREENSTEIN, ESQ.: Senator, your question
14 is a good one, but I think the reality is, there
15 won't be some cliff on January 1st. There will
16 just be a -- a -- a nuanced power shift.
17 Okay, now, they have all the power, so that
18 the counties that have, you know, quote/unquote,
19 voluntary disclosure, it's not uniform. It depends
20 upon the prosecutor.
21 And when you ask for something, some are very
22 forthcoming. Some sort of hang it out there, that
23 maybe the offer won't be as good if they have to
24 give it to you.
25 Well, now the conversation will just be a
184
1 little different, because we as defense lawyers know
2 that, if we run to a judge on January 2nd,
3 nobody's going dismiss a case.
4 But they'll just have a little more burden, a
5 little more urgency, to get us the things that we
6 need.
7 But I appreciate your question in terms of
8 trying to address the concerns of some people, that
9 the world is going to see a seismic shift.
10 It's not.
11 It's just going to change the conversation
12 because there will be a different obligation on the
13 prosecutors.
14 And just one example of what a "voluntary
15 disclosure" is now, it was the county that was not
16 represented here, so I won't name them.
17 But, in order to get voluntary disclosure in
18 this county, a defendant has to give up rights.
19 In order to get police reports and witness
20 statements, a defendant has to sign a contract which
21 says, I won't file a discovery motion, and, I'll
22 tell you who my witnesses are before the trial
23 starts.
24 And that is one of the few weapons or tools
25 that a defendant has in a country where you're
185
1 presumed innocent, which is to keep that stuff to
2 yourself.
3 And so the reality about voluntary
4 disclosure, it's not so voluntary, it's not so open.
5 It's up to the people who have it, which is
6 the prosecutors, and that's just going to change
7 after the 1st.
8 TERENCE KINDLON, ESQ.: I would respectfully
9 submit that I think the prosecutors have been
10 exaggerating the magnitude of the problem.
11 Lee's point is well taken: There's going to
12 be a bump in the road, but it's not a cliff.
13 It's going to be something we can move
14 through.
15 SENATOR BAILEY: Thank you.
16 The next question I would have would be:
17 I know that you mentioned comments about the
18 prosecution requiring an increase in funding.
19 And -- and your belief that that may not be
20 as high, or higher, or necessary at all.
21 Will defense groups -- I'm not talking about
22 individual public defenders, individual private
23 defenders.
24 Will legal aides and inde -- indigent legal
25 services, will you need an increase in funding as
186
1 well?
2 And, if so, how much?
3 TERENCE KINDLON, ESQ.: A lot of funding has
4 come from this Hurrell-Harring settlement that you
5 probably know about. And that has -- that money
6 has gone to public defense offices throughout
7 Upstate New York, as far as I -- as far as I know.
8 So there's already a lot of new money there.
9 And beyond that, I -- I don't -- I don't know
10 what else their financial requirements might be.
11 SANDRA McCARTHY, ESQ.: I don't -- I don't
12 want to speak for all the public defenders, that's
13 for sure, and I could be wrong about this.
14 But -- but Mr. Kindlon brings up this 5-year
15 rollout of the Hurrell-Harring settlement for the
16 non -- counties that were not involved in that
17 litigation. Right?
18 My hope would be that, if the 5-year rollout
19 happens at the same time as these new reforms go
20 into place -- right? -- that offices like mine, we
21 will be using those resources for those rollouts.
22 Right? They'll be coming at the same time.
23 So my hope would be, I mean, I don't want
24 to -- maybe (indiscernible) answer -- my hope would
25 be I wouldn't need additional funding.
187
1 I might.
2 But, because I'm having the -- you know, I'm
3 having this come in, and unlike the DAs who have
4 been doing it one way all this time, and now have to
5 suddenly change it, getting funding simultaneously
6 with criminal justice reform, that would just,
7 coincidentally, be the way that it rolled out.
8 So, I don't know if you agree with that.
9 KEVIN M. STADELMAIER, ESQ.: I do.
10 We're still assessing our needs, but, at this
11 point, we're hoping to use the money that's coming
12 from ILS in order to satisfy what we need to do in
13 our office.
14 SENATOR BAILEY: So I have a couple more
15 questions, but I want to allow my colleagues the
16 opportunity to ask you questions as well.
17 Senator Jordan.
18 SENATOR JORDAN: (Microphone off.)
19 Sure.
20 I listened to you -- oh.
21 (Microphone on.)
22 Thank you all for being here, first of all.
23 And I did listen to each of you carefully.
24 Mr. Kindlon, you started -- you said, at one
25 point, that this was all carefully constructed.
188
1 If it was carefully constructed, we all
2 wouldn't be here trying to fix it.
3 And that's the importance of having public
4 hearings before we pass major policy such has been
5 done.
6 But I am a little bit disturbed with -- with
7 what you said, because you're basically telling us
8 not to listen to the panel before us, the district
9 attorneys that spoke.
10 You know, you're telling us that what they're
11 saying isn't so, that they shouldn't have the
12 concerns they have, cost isn't a problem, and --
13 Did you ever work in a district attorney's
14 office?
15 TERENCE KINDLON, ESQ.: Actually, I did,
16 yeah, when I was in law school.
17 And --my -- my -- my wife was a prosecutor in
18 Maricopa County in Phoenix for a number of years.
19 So we spent a lot of time talking to each
20 other about being prosecutors.
21 Now, budgets are not my problem, so I really
22 can't address the district attorneys' budgetary
23 problems.
24 However, my point is not -- I'm not -- I'm
25 not saying they're lying.
189
1 I'm saying that they're overreacting.
2 I'm saying they're exaggerating.
3 I'm saying that they're reluctant to give up
4 this -- power that they've had is -- is close to
5 absolute power.
6 You know, we are -- we, as criminal defense
7 lawyers, and I spent my -- I spent my whole life
8 under the CPL as a criminal defense lawyer, we are
9 dictated to.
10 And Sandy McCarthy made, you know, a good
11 point, a number of good points.
12 And the fact is, that you're given an offer
13 by an assistant district attorney who doesn't even
14 understand the case, but knows full well, that if
15 your client doesn't take that offer, and she goes to
16 trial, and she is convicted of a violent felony,
17 there's going to be a mandatory minimum prison
18 sentence, which might not be -- which might not be
19 just under the circumstances.
20 So, again, Senator, I -- I mean no
21 disrespect, but the fact is, that I do sincerely
22 believe that the district attorneys who testified
23 here this morning are overreacting to a change that
24 they have to make, and people don't like to change.
25 I used to joke to a county court judge that,
190
1 if he had his way, there would still be gas lights
2 in the courthouse.
3 People resist change. It's unpleasant, it's
4 hard, it requires you to work late. And, you know,
5 it's usually for a very good reason.
6 So, again, I want to be clear: I'm not --
7 I'm not insulting the district -- the district
8 attorneys who were here. Those that I know are
9 really good people.
10 But, you know, they don't want to change.
11 They've had things their own way since they
12 became lawyers.
13 And now it's different, and it's going to be
14 a very healthy difference.
15 It's going to benefit, not just our clients,
16 but society at large.
17 You know, and when I hear people talk to
18 DAs, you know, you would think that the DAs
19 are -- you know, have descend from heaven and are
20 magical or imbued with some kind of supernatural
21 grace.
22 The fact of the matter is that, you know, we
23 have a system of justice here, which is supposed to
24 be in balance.
25 And criminal defense lawyers have to fight
191
1 like hell to keep it that way. It's not easy.
2 And we have spent the last 40 years
3 underfunded.
4 Only recently have funds finally started to
5 become available for criminal defense lawyers.
6 So, that's all I got to say.
7 SENATOR JORDAN: Well, in the same veins, the
8 district attorneys were telling us the problems with
9 the roll out of this.
10 TERENCE KINDLON, ESQ.: Right.
11 SENATOR JORDAN: And so we have to listen to
12 them.
13 TERENCE KINDLON, ESQ.: Oh, of course.
14 SENATOR JORDAN: Just as we are listening to
15 you.
16 TERENCE KINDLON, ESQ.: Which -- which I am
17 profoundly grateful for, believe me.
18 It is so important.
19 This criminal justice system -- this criminal
20 justice system, it lies at the heart of my marriage.
21 I mean, it's -- all I ever talk about is
22 criminal law to my wife.
23 I mean, she's -- you know, she's
24 actually giving a seminar to lawyers down in
25 Westchester County today.
192
1 It's what we do, and it has to work right.
2 And I was thinking, if I can just take
3 30 more seconds, I went to a prison up in Canada a
4 couple of years ago, Donnacona. It's right halfway
5 between -- well, it's up -- it's up there.
6 But, anyway, I walked in, and it was visiting
7 day, and all the prisoners were there, talking to
8 their wives and girlfriends and moms and dads, and
9 everybody was White.
10 And I said, Wow, look at that.
11 That looks about as unlike an American prison
12 as you could possibly ever hope to see.
13 And the fact of the matter is, that it is our
14 clients of color who have really taken it on the
15 chin here, because they -- you know, they have to
16 depend upon public defense.
17 And as good as many of the public defense
18 lawyers are, if you don't have discovery and you
19 don't have time, you're just stuck.
20 And the outcome of the case is going to be
21 dependent upon your ability to think at the speed of
22 light, and to ask the right question, sort of,
23 almost intuitively, rather than to study the record.
24 So, that's what I'm talking about, ma'am, and
25 I thank you for your question.
193
1 SENATOR JORDAN: And, Mr. Green...
2 LEE GREENSTEIN, ESQ.: Greenstein.
3 SENATOR JORDAN: ...Greenstein, yes, when you
4 were talking about witness intimidation, you said,
5 "I guarantee you'll get a protective order when one
6 is needed."
7 Those are your thoughts.
8 That's not how the bill is written.
9 You know?
10 It's all very subjective, and that is
11 dangerous.
12 LEE GREENSTEIN, ESQ.: Sure.
13 SENATOR JORDAN: And so you cannot guarantee
14 that.
15 Nobody can guarantee it.
16 And that's also why we're here, because it's
17 not a perfect bill.
18 LEE GREENSTEIN, ESQ.: To the extent that
19 you're holding these hearings to get the viewpoints
20 from public defenders and district attorneys, I'm a
21 private lawyer, and I've been doing this for over
22 30 years.
23 So, "guarantee" was a strong word.
24 My view is that, judges go to incredible
25 lengths, largely, appropriately so, but not always,
194
1 to give district attorneys what they want when
2 there's an allegation against a victim.
3 And the best example I can give you are
4 orders of protection, which are given out because
5 prosecutors ask for them -- okay? -- and there are
6 two kinds of orders of protection.
7 So say it's a domestic-violence situation.
8 And there are two people who have had a problem, a
9 big enough problem, where there's an order of
10 protection, where someone has to leave the home.
11 And there's another kind of order of
12 protection, where you can be around somebody, but
13 you just have to refrain from illegal contact.
14 And there are occasions, Senator, where no
15 matter what I say to a judge, no matter what
16 evidence I present to a judge, that the allegation
17 is wrong, that it is a lie, that is baseless, that
18 difficulties will happen to my client in terms of,
19 where he lives, financial problems, work, they
20 always get the order of protection.
21 Why?
22 Because of the umbrella of fear in
23 domestic-violence cases, which is so often true, but
24 not always.
25 So my experience is, is that when prosecutors
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1 say, "Hey, there's a danger here," they get what
2 they want.
3 And that's not going to change under the new
4 law.
5 SANDRA McCARTHY, ESQ.: Can I just say
6 something and add to that?
7 So I did hear your concern.
8 I know a lot of people are worried about
9 witness protection, obviously, crime victims, and
10 things like that.
11 I've been doing this for a while, for over
12 20 years. And I will tell you that, like,
13 particularly in a domestic-violence case, where your
14 concerns are, which I understand, the defendant
15 always knows the identity of the victim.
16 It's not that the discovery reform is going
17 to change that. It's their intimate partner.
18 Right?
19 How -- I just feel like that's a bit of a red
20 herring, and that's getting kind of confused with
21 discovery reform. Right?
22 The defendant will -- in a domestic violence,
23 always knows the identity of the alleged victim,
24 because that's they're intimate partner.
25 It's not like, suddenly, now we're going to
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1 tell them where they wouldn't have known that
2 before.
3 Obviously, they knew that.
4 In drug cases, which is, a lot of times,
5 where they have con -- use confidential informants,
6 I'll just tell you, in 20 years, my clients always
7 know who it is, because the date, time, and location
8 of the sale is written on the complaint.
9 They know who they were with at that time.
10 Right?
11 So I just -- not that it's not valid, and not
12 that we don't need orders of protection for
13 domestic-violence victims, or we don't need orders
14 protection for the confidential informant in the
15 drug case.
16 I'm just saying that this statute is -- does
17 nothing. That's exactly the same as it's always
18 been.
19 Those identities of those people were all --
20 are always known to the defendant.
21 And the Court has always taken measures to
22 try to protect them to the best of their ability.
23 SENATOR JORDAN: All right, those aren't the
24 only crimes, though.
25 SANDRA McCARTHY, ESQ.: That's true.
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1 And --
2 SENATOR JORDAN: And so that's not -- you
3 know, the -- those aren't the only crimes that I'm
4 worried about.
5 SANDRA McCARTHY, ESQ.: Okay.
6 I understand.
7 I mean, generally speaking, the defendant
8 knows who -- who was -- you know, who they're
9 talking about, and who was involved in the
10 situation, as a general rule.
11 If there's something new that's going to be
12 disclosed to the defendant, the DA can ask for the
13 protective orders. They can do what they -- you
14 know, what they need to do to protect the -- those
15 people.
16 I'm just -- I'm just saying that those are
17 the mostly the victims that I deal with, and the
18 people that -- the defendant is aware of, the two
19 cases we brought up earlier.
20 And the defendant is aware of the identities
21 of those people already.
22 SENATOR JORDAN: Let's talk about maybe the
23 grandmother that lives down the street, and was
24 looking out the window and saw a rape.
25 Do you think she'd want to come forward as a
198
1 witness?
2 SANDRA McCARTHY, ESQ.: Well, I -- I'll --
3 that's -- that is an issue, and I think that that
4 was brought up earlier, is that, why people don't
5 come forward to say that they witnessed a crime
6 really doesn't have to do with the discovery
7 statute.
8 Right?
9 That's -- this is a problem that's been
10 persistent.
11 Is it because they feel like criminal justice
12 won't -- that -- that -- that law enforcement won't
13 protect them? Is it because they're concerned?
14 I don't really know.
15 I -- Mr. Kindlon looks like he wants to say
16 something.
17 TERENCE KINDLON, ESQ.: I'd like to interject
18 something here.
19 If we are concerned with gramma down the
20 street being the victim of a crime, because of her
21 being a witness, this statute provides for what's
22 called "attorney discovery," so that the information
23 can be given to the criminal defense lawyer, but not
24 to the accused.
25 And that is a -- that is a very significant
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1 safety valve that's built into the statute.
2 Senator?
3 SENATOR JORDAN: Thank you.
4 I'm finished.
5 Unless you --
6 LEE GREENSTEIN, ESQ.: Just one more view
7 from my years of experience.
8 That circumstance, that a witness comes
9 forward, and the defendant knows about it, and that
10 witness being threatened or harassed or harmed by a
11 defendant, that's a fantasy.
12 Does it happen?
13 Over the course of human behavior, yes.
14 Has it ever happened in one of my cases since
15 1986? Never.
16 To me, the prosecutors who were here earlier,
17 when they used terms like "chaos" and "tragedies,"
18 that's fear-mongering.
19 That is nine -- that is -- that is 1 percent,
20 or less than 1 percent, of reality, and the police
21 and the courts and the prosecutors can take care of
22 those situations.
23 I have seen many tragedies from my side of
24 the fence, and they have to do with people who are
25 incarcerated for long periods of time, who are
200
1 overcharged, who are innocent, or who don't have
2 money.
3 So I just want to remind the senators that,
4 despite the use of the word "tragedy" by the
5 prosecutors, there are tragedies all throughout the
6 criminal justice system.
7 And I think this law will prevent more
8 tragedies than create them.
9 SENATOR BAILEY: Thank you, Senator.
10 Nothing else, Senator Jordan?
11 Senator O'Mara.
12 SENATOR O'MARA: Yeah, sure, just a couple.
13 Thank you all for being here, and, again,
14 thank you for the work that you do.
15 I know it's as equally as important to our
16 criminal justice system as that of the prosecutors
17 that testified before you.
18 So, thank you for that work.
19 Two things I really want to focus on, that
20 are most concerning to me in this whole legislation.
21 First of all, it's the 15 days.
22 Seems a little unreasonable to me, as far as
23 length of time.
24 So let's just talk about that one first.
25 I mean, 15 days seems awfully fast to me,
201
1 having been in the situation before, knowing the
2 volumes of things that you have, and what you don't
3 get timely from law enforcement at times.
4 Things do need to change to make that work
5 better, and I believe they will.
6 And I'm all in favor of greater discovery in
7 timely -- so you have it for timely use as well.
8 But, you know, there's a long period of time
9 between -- between arrests and the initial
10 arraignment, and either the indictment, or -- or, if
11 it ultimately goes to trial, there's a long period
12 of time there.
13 And no -- and I understand that you want to
14 get the information so you can properly inform your
15 client: The odds of success. The odds of
16 conviction. The odds of acquittal. And maybe even,
17 I'm sure, point out inconsistencies or weaknesses in
18 the case to the prosecutor when they're determining
19 what to do with it.
20 But 15 days just seems too fast to me.
21 Can you just comment on that?
22 TERENCE KINDLON, ESQ.: Well, here's --
23 here's my concern, and this just happened to a
24 client of mine.
25 He was arrested and charged with a Class B
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1 felony, possession of drugs with intent to sell.
2 My client is a junky. He had some crack in
3 his possession. He was not going to sell it. He
4 was going to use it.
5 And here's the problem:
6 The possession was a little tiny misdemeanor;
7 a little, insignificant, tiny misdemeanor of the
8 sort which, under prevailing practice, would result
9 in, you know, get out of here, go get some rehab, or
10 something.
11 But as it was, he was stranded in jail with a
12 Class B felony for a whole month before anybody
13 looked carefully at this and decided that he was
14 overcharged.
15 And I think, under the circumstances, if
16 total disclosure had been made at the start, then he
17 would not have borne that burden for so lengthy a
18 period of time.
19 And that's just an example of probably
20 (parties cross-talking) --
21 SENATOR O'MARA: But I believe our bail
22 reforms certainly covered that, and that individual
23 will not be put in jail on bail, as of the first of
24 the year, with the changes.
25 Not that I support the whole-scale changes
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1 that we made to bail, but a lot of it I did, and do.
2 So, you know, that won't be a factor going
3 forward with another reform that was done.
4 TERENCE KINDLON, ESQ.: Well, Senator,
5 I happen to agree with you.
6 I think that 15 days is -- is lightning-fast
7 right now.
8 I'm sure that the prosecutors and the State
9 and the police will probably adjust somewhat.
10 And as I understand it, as I understand the
11 statute --
12 SENATOR O'MARA: Well, it's going to take a
13 change to the law now --
14 TERENCE KINDLON, ESQ.: Right.
15 SENATOR O'MARA: -- or a so-called "chapter
16 amendment."
17 So -- and then the second aspect --
18 LEE GREENSTEIN, ESQ.: Senator, can I just
19 address that real quick?
20 SENATOR O'MARA: Oh, yeah, sure.
21 LEE GREENSTEIN, ESQ.: I'm sorry.
22 I think you said you were a prosecutor
23 earlier in your career.
24 SENATOR O'MARA: Yes.
25 LEE GREENSTEIN, ESQ.: The -- there's been a
204
1 requirement, since I started about 1986, and I'm
2 guessing when you were a prosecutor, for prosecutors
3 to hand over statements of defendants within
4 15 days. And that happens routinely.
5 And when it doesn't happen, and it's a week
6 later, a month later, or sometimes six months later,
7 a judge wags their finger at the prosecutor and
8 says, "Don't do it again."
9 Okay, on the rare occasion, there's some
10 sanction or remedy or suppression which happens.
11 My sense is, the same thing will happen with
12 the new law, that the realities of the limitations
13 that the prosecutors have will -- will -- will just
14 flesh themselves out.
15 Is it fast? Yeah.
16 But when you're sitting in jail, Judge, it's
17 not that -- judge -- I'm sorry.
18 [Laughter.]
19 LEE GREENSTEIN, ESQ.: -- that's not that --
20 it's not that fast.
21 And in the vast majority of the cases, this
22 is basic stuff.
23 It's some documents, there's a 911 call, you
24 hand it over.
25 And if you can't, the case won't get
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1 dismissed.
2 KEVIN M. STADELMAIER, ESQ.: And, Senator,
3 just to piggyback on that, there are provisions in
4 the law that allow the district attorneys to ask
5 judges for extensions of time when they don't have
6 materials in their possession.
7 But, really, this all keys on, is -- is the
8 30/30 time.
9 I mean, the real change in this statute, is
10 that they can't declare ready until they've turn
11 over everything in their possession, and then ask
12 for extensions on the stuff that they have (sic).
13 So, you know, as Mr. Greenstein says, what is
14 a judge going to say when they don't turn it over
15 within 15 days, and we object?
16 They're going to say, Can you go and get it a
17 little bit quicker? Can you go and ask whoever, you
18 know, you have to ask in order to get that discovery
19 faster?
20 No matter what we ask for, whatever sanctions
21 we ask for, really, the only thing that's going to
22 matter at the close of the day is the 30/30 time;
23 and that's 90 days for misdemeanors, 6 months for
24 felonies.
25 I think judges are going to, at least for
206
1 first little while of this statute taking effect,
2 they're going to be awfully lenient with
3 prosecutors' offices and police agencies in the
4 implementation of this.
5 TERENCE KINDLON, ESQ.: We (indiscernible)
6 developed over the last half century.
7 It's not the sort of thing that's just going
8 to go away overnight.
9 SENATOR O'MARA: Oh, I know. It will be a
10 forced change, for sure.
11 The other aspect of it is, is the cost.
12 And I've heard you say you disagree with the
13 costs of what the prosecutors have talked about.
14 And, I get it: You don't think it will be as
15 much. They think it's going to be more.
16 Who should bear that cost?
17 This is an unfunded mandate from the State
18 that, right now, will have to be borne by the
19 counties if the district attorney's office can't get
20 the funding from the county.
21 Who should pay -- who should be paying for
22 this?
23 The State, since we're mandating it, or the
24 county taxpayers, where -- that's where the county
25 DA gets their money from?
207
1 SANDRA McCARTHY, ESQ.: Well, this is above
2 my pay grade, but I'd say the State.
3 I don't want to see anymore mandates on my
4 county. That's resources.
5 You know, I deal with this all the time,
6 being a county employee, since I'm an appointed
7 county employee.
8 So -- and to -- to -- and I did appreciate
9 the DA's argument too, about the RTA statute, and
10 about, if the counties go over the 2 percent tax cap
11 on this, then they won't be able to get reimbursed
12 for that.
13 It is sort of a catch-22 and a bit of a
14 circular problem.
15 SENATOR O'MARA: Uh-huh.
16 SANDRA McCARTHY, ESQ.: I do also agree,
17 though, that they're overemphasizing the amount,
18 because a lot of it is a shift of when you do it.
19 It's not that you -- it's not that you're --
20 you just did it later.
21 So a lot of times it's a shift of resources
22 to making sure we get this done up front.
23 And a lot --
24 SENATOR O'MARA: Yeah, but don't you think,
25 with 90 percent of cases getting plea-bargained,
208
1 that this is going to create much more volume of
2 work --
3 SANDRA McCARTHY, ESQ.: That's what --
4 SENATOR O'MARA: -- in that aspect?
5 SANDRA McCARTHY, ESQ.: -- well, that just
6 shows how little discovery we get now, I guess.
7 I guess that just goes to the argument.
8 Right?
9 They never saw it.
10 We never saw it.
11 That's exactly the argument that we're
12 making.
13 But I think it's going to have more of a
14 shift, honestly, with local law enforcement.
15 I actually think that -- because if law
16 enforcement has their file in a row -- their ducks
17 in a row, and their file put together properly
18 before effectuating the arrest, they'll be able to
19 get all that to the district attorney's office.
20 I think that's probably more where the bigger
21 fundamental change is going to be, is in law
22 enforcement.
23 As we heard the DAs, all these agencies, the
24 sheriff's department, (indiscernible), and getting
25 this information to them.
209
1 Once the DA's office has it, and it's in a
2 nice package for them, I don't think it will be hard
3 for them to turn it over to us.
4 But, I'm not an expert on the funding of the
5 DA's office.
6 I don't any think of us are, so...
7 LEE GREENSTEIN, ESQ.: Senator, I'll just
8 tell you who shouldn't be pay for it, and that's
9 those who are accused of crimes shouldn't pay with
10 their rights.
11 SANDRA McCARTHY, ESQ.: Right.
12 SENATOR O'MARA: Okay. Thank you all.
13 TERENCE KINDLON, ESQ.: Thank you so much.
14 SENATOR BAILEY: Senator Serino.
15 SENATOR SERINO: Thank you.
16 And I'd like to thank you all for being here
17 today.
18 You know, not to beat a dead horse, but
19 I really wish that these hearings would have taken
20 place before this legislation passed, have all of
21 you guys at a table together.
22 I'm a firm believer of that, because there
23 are going to be unintended consequences.
24 We talked about domestic violence, and you
25 had mentioned how law enforcement would place
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1 victims in a safe house.
2 I could tell you, in my district, we don't
3 have the funds for that.
4 We have Grace Smith House, which is a
5 wonderful institution, but they don't have places.
6 They don't have the resources.
7 I really worry about that.
8 Earlier today, too, we talked about the drug
9 labs.
10 15 days is not possible.
11 I know, in every county, I can imagine we all
12 have a heroin and opioid epidemic.
13 I've gone to many, many wakes, and it's just
14 so, so sad.
15 So now we're making a situation where, a lot
16 of these cases, because the drugs have to be tested,
17 if I understand this correctly, within the 15 days,
18 so then people will know that, okay, there's not
19 going to be a case, with the speedy trial, it's not
20 going to happen, so they're not going to be put into
21 a place where they might get help, like a diversion,
22 or the drug court, or what have you.
23 That's not going to happen.
24 So now we're making it worse, and I believe
25 that they're going to be the victims of this bill.
211
1 And as everyone said, too, the lack of
2 dollars are a true reality.
3 You know, we hear the doom and gloom about
4 our budget next year.
5 I can't even imagine.
6 I don't know where the money is going to come
7 from, and it's going to take dollars, because it's
8 going take the resources, whether it's in bodies or
9 computer equipment, what have you.
10 So those are just my comments that I had to
11 make.
12 And I don't know if you have anything that
13 you'd like to add?
14 SANDRA McCARTHY, ESQ.: I agree with you that
15 the -- you know, the lack of domestic-violence
16 funding for these advocacy groups or shelters, that
17 is a reality. But that has nothing to do with the
18 discovery statute.
19 You know what I mean?
20 It's really not in any way related.
21 Because, like I said, discovery is just about
22 letting the person know the name of that person,
23 which they already know.
24 So it's just -- I just don't want to confuse
25 that very real and prevalent issue with this
212
1 statute.
2 Really, one has nothing to do with the other.
3 SENATOR SERINO: Can I ask you another
4 question, then?
5 So with the discovery bill, is there a
6 danger, like -- and I forgot what the situation was
7 earlier, that they mentioned, there's a time frame
8 in between of the person -- and you know who
9 your you know, not everybody that's a victim goes
10 after their abuser. Right?
11 That's a fact of life too, in a
12 domestic-violence case.
13 SANDRA McCARTHY, ESQ.: Not (parties
14 cross-talking) --
15 SENATOR SERINO: Right, right.
16 SANDRA McCARTHY, ESQ.: -- that the defendant
17 goes after their victim --
18 SENATOR SERINO: Yes.
19 SANDRA McCARTHY, ESQ.: -- is that what you
20 mean?
21 SENATOR SERINO: Yeah -- no, no, no.
22 That the victim actually goes to court.
23 SANDRA McCARTHY, ESQ.: Oh, prosecutes?
24 SENATOR SERINO: Yes, absolutely, because
25 they're afraid.
213
1 So is there a time frame in between, because
2 of this 15 days, that, now, they are -- they're
3 going know that their abuser, you know, the vic --
4 the abuser is going to know that their victim is
5 coming after them.
6 You know what I mean?
7 Like (parties cross-talking) --
8 SANDRA McCARTHY, ESQ.: They got arrested.
9 SENATOR SERINO: Right.
10 SANDRA McCARTHY, ESQ.: They've been
11 arrested.
12 And the -- you know, due to the statements
13 attached, they already -- they already know that.
14 If there's only two people in the room,
15 obviously, they know that that victim has come
16 forward.
17 And I hope that that person has gotten the
18 services that they need to extricate themselves from
19 the situation.
20 As was pointed out, we have orders of
21 protection, and things like that.
22 But lack of services for domestic-violence
23 victims really doesn't have anything to do with the
24 discovery statute. Right?
25 They already know the name of that person.
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1 That's the person they're in an intimate
2 relationship with.
3 And I know that this is new, and not true
4 everywhere, but, in Rensselaer County, we do have
5 the new opioid court.
6 So any defendant, at -- when they're --
7 right -- when they get -- right -- before they're
8 even arraigned, they're questioned with this little
9 questionnaire about, do they want help for their
10 drug problem?
11 So we can get those people out.
12 Whether the case is strong or weak is not
13 relevant to the opioid court.
14 The opioid court, which is different than a
15 drug court -- but, anyway, the opioid court does
16 allow the defendant -- and I'd like to be more
17 involved in that, but, whatever -- to get access to
18 drug treatment before even discovery, before
19 anything.
20 Just (indiscernible) -- we're going to try to
21 connect that person, to the best we can, with
22 whatever treatment we have available through our --
23 we have these (indiscernible) that work in the
24 courts, and whatnot.
25 So we have -- but that doesn't have to do
215
1 with discovery.
2 It's just that I don't want to mix up the
3 social-justice issues, which we do work on, with the
4 discovery statute.
5 SENATOR SERINO: And -- but even with the --
6 like, you can ask somebody if they need help that's
7 on drugs. Right?
8 If it's not mandated, most likely they're not
9 going to get the help.
10 That's what I'm saying.
11 Because now they're saying that they're not
12 going to -- they're not going -- if the 15 days is
13 not going to allow them the time to comply with the
14 discovery, and they cannot meet their speedy-trial
15 burdens, so then that person knows that nothing is
16 going to happen, so, literally, they can walk away.
17 That's my point with that -- right? --
18 because they're not getting mandated to get help.
19 SANDRA McCARTHY, ESQ.: Well, the opioid
20 court is voluntary.
21 I don't want to get into a big discussion
22 about (parties cross-talking) --
23 SENATOR SERINO: No, voluntary.
24 No, I don't either.
25 SANDRA McCARTHY, ESQ.: -- especially
216
1 (parties cross-talking) --
2 SENATOR SERINO: I'm just trying to make a
3 point here, that --
4 SANDRA McCARTHY, ESQ.: -- it's just a
5 mandate -- when you're mandating somebody to drug
6 treatment, you're -- they're going to use
7 (indiscernible).
8 But, like, when you put people in jail, most
9 of these overdoses are people coming out of jail or
10 rehab because it was mandated.
11 When the person's ready, is when they're most
12 likely to get -- I mean, I don't want to get into a
13 huge debate about this, because, again, it has
14 nothing to do with discovery.
15 But -- but voluntary services, usually, are
16 more effective.
17 So this -- we have the opioid court, to allow
18 people to go into services voluntarily. And we have
19 the service that we're doing, now, three -- four
20 courts in the county.
21 KEVIN M. STADELMAIER, ESQ.: Senator?
22 SENATOR SERINO: Yes.
23 KEVIN M. STADELMAIER, ESQ.: When someone's
24 arrested on the spot, marijuana, drugs, there's a
25 field test, which is a -- has a certain amount of
217
1 validity, but not the kind of validity you could use
2 at a trial.
3 So when there's that test that exists, they
4 have to turn that over under the statute.
5 But before trial, they send it to a lab, and
6 that takes a much longer period of time.
7 Cases are not going to be dismissed because
8 they don't have the lab within 15 days, nor -- or,
9 there will not be a flourish of defendants, who
10 should otherwise get drug treatment, who are going
11 to go free because of the statute.
12 They'll hand over the field test, and at some
13 point before trial, they'll hand over the lab.
14 Nothing is going to change.
15 I can also assure you that drug courts, which
16 have been in existence for maybe 15 years, have --
17 have really changed the nature our practice.
18 They have given a vast amount of sympathy and
19 treatment for many of our clients who would
20 otherwise go to jail.
21 So there's a real positive effect in the last
22 15 years of drug courts and opiate courts.
23 But this discovery statute will not -- will
24 not change anything, because all they have to do is
25 give over the field test at the beginning, and the
218
1 lab test will come when it comes.
2 SENATOR SERINO: Okay.
3 I'm not an attorney.
4 LEE GREENSTEIN, ESQ.: That's why I'm glad
5 you asked the question.
6 [Laughter.]
7 SENATOR SERINO: No, but it is -- it's a
8 concern, because we don't know what's going to
9 happen. This is all new, so, we'll have to see.
10 And the drug courts a wonderful thing.
11 I know Putnam County has an amazing
12 drug-court system, and it's helped many, many
13 people, but we do lack resources to help, you know,
14 people that need the help.
15 That's a real problem throughout every one of
16 our counties.
17 And I think everybody's on the same page: We
18 need reform.
19 That's why we're here today.
20 I didn't hear anybody on the prior panel say
21 that they wanted to repeal.
22 It was all about reform.
23 So, thank you.
24 SENATOR BAILEY: Well, I'd like to thank --
25 I would like to thank you for testifying.
219
1 I would like to thank you for the work that
2 you're doing, as -- as my -- as my colleagues also
3 mentioned.
4 And, again, thank you for your patience, and,
5 thank you for testifying.
6 TERENCE KINDLON, ESQ.: Thank you.
7 KEVIN M. STADELMAIER, ESQ.: Thank you so
8 much.
9 SENATOR BAILEY: The next panel will be:
10 Martin Mayfield, New York State organizer for
11 Just Leadership USA;
12 Justin Harrison, policy counsel for the
13 New York Civil Liberties Union;
14 Darryl Herring, community leader for
15 VOCAL-NY;
16 Erin George, civil rights campaign director,
17 Citizen Action of New York;
18 And, Chuck Keller, member of the
19 assigned-counsel program, Onondaga County.
20 So I would ask that -- that the same rules
21 apply to the -- as the prior panel.
22 You can go in any order that you choose to
23 go, but just state your name prior to the
24 commencement of your testimony.
25 And, again, I -- I -- I will ask, once again,
220
1 as I have said to the -- I've been saying before the
2 panels, let's try to stick to the 5 minutes as much
3 as we possibly can.
4 I know we're passionate about this testimony,
5 but we want to make sure everybody -- senator --
6 some of the senators and I get a chance to -- to --
7 to answer -- to -- to question you.
8 With that being said, please commence.
9 JUSTIN HARRISON, ESQ.: Good afternoon,
10 Senators.
11 My name is Justin Harrison. I'm a policy
12 attorney with the ACLU of New York.
13 We've heard a lot about -- and I have a few
14 pages of written testimony, I've submitted that.
15 And at the first part of that testimony, we
16 go into considerable detail about the 6th and
17 14th Amendment implications, and all of the
18 constitutional underpinnings of the discovery reform
19 law.
20 However, because my panel seems to have
21 expanded considerably from what's on the list, and
22 because we're also quite pressed for time, I'm going
23 to move sort of directly into a discussion of
24 something that I haven't heard anything about yet
25 today, but we've heard a lot of sort of collateral
221
1 mention of, and that is the idea of electronic
2 discovery and evidence portals.
3 Uhm -- uh, let's see.
4 And, please forgive me for skipping around.
5 So, yes, in light of many of the comments
6 that we heard earlier today, particularly comments
7 by some of the district attorneys, especially
8 Mr. Soares, the NYCLU would like to offer just a
9 word of caution about the growing use of evidence
10 portals.
11 Evidence portals, for those who might not be
12 aware, are online and, in many cases, cloud-based
13 databases, in which evidence is stored by the
14 prosecutor's office, stored by police departments,
15 and by which it is shared with defense attorneys.
16 The NYCLU supports electronic discovery, and
17 we are not flatly opposed to portal-based evidence
18 production; however, those systems raise troubling
19 questions of privacy, as well as the control of
20 evidence.
21 And I noted, Senator Bailey, that you have
22 some paper in front of you.
23 If you're following along, if anybody is
24 following along, with my testimony, this is page 5.
25 So, first: Who enters evidence into the
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1 portal database?
2 If it's just police and prosecutors, then it
3 is inevitable that some evidence, particularly
4 exculpatory evidence, won't make it into the
5 electronic database, and defense attorneys will
6 simply never know it exists.
7 Such a system risks negligent exclusion of
8 evidence, or, worse, invites Brady violations.
9 In any portal system, the prosecutor, as part
10 of the new discovery law's compliance-certification
11 process, must certify that the evidence
12 electronically available; that is, the evidence in
13 the portal, is identical to the evidence in the file
14 and that nothing has been excluded.
15 Appropriate remedies, including sanctions,
16 must be available for the Court to impose if
17 something is missing.
18 Second: A portal system must allow
19 defendants who represent themselves, as well as
20 indigent defendants who lack Internet access --
21 excuse me -- to inspect evidence without having to
22 go through the portal.
23 Everyone must have the right to opt out of
24 electronic evidence production and sharing systems.
25 The portal system cannot be the only way
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1 defendants or their counsel are allowed to access
2 evidence. It must be purely optional.
3 Third: Evidence placed into the portal must
4 remain in the public domain.
5 Many of the companies who offer commercial
6 portal services assert intellectual property rights
7 as to uploaded evidence.
8 For example: Axon, which is the same company
9 that makes police body cameras and tasers, makes an
10 evidence-sharing platform for use by police
11 departments in uploading, storing, and sharing
12 police body-camera footage.
13 The website that Axon has created is cleverly
14 named "evidence.com."
15 Police can share a link to the footage with
16 the prosecutor's office, and the prosecutor can
17 share that link with the defense.
18 The problem, however, is that Axon's terms of
19 use grant Axon free and permanent license to do
20 almost whatever it wants with the footage, that
21 includes body cam and police dash-cam footage,
22 uploaded to the website.
23 That footage often includes people's faces,
24 license plate numbers, the insides of their homes,
25 their children's identities, and everything else, if
224
1 it has been uploaded in -- without having been
2 redacted first, and other details that people who
3 were captured in this footage might not want shared
4 by Axon, or, eventually, subsequently, monetized in
5 ways that they don't understand and haven't
6 consented to.
7 To avoid this, portal evidence must be held
8 by the prosecutor's office.
9 The prosecutor cannot simply provide web
10 links to defense attorneys and tell them to visit
11 evidence.com to see dash-cam or police body-camera
12 footage.
13 Moreover, if the evidence is held by a
14 private company, that company cannot be allowed to
15 monetize that data any way it wants.
16 Access to evidence cannot be subject to
17 license agreements or intellectual-property
18 protections.
19 Lastly: No matter who operates the portal,
20 there cannot be -- and I am told by attorneys who
21 have practiced in a lot of courts throughout the
22 country -- there cannot be tracking or
23 data-collection activity of any kind embedded in the
24 portal software; that is to say, the prosecution
25 cannot use the software or electronic discovery
225
1 suite to find out what evidence the defense has
2 viewed, what evidence the defense has prioritized,
3 or whether the defense has viewed some parts of the
4 evidence and not others.
5 The defense must be able to download all the
6 prosecution's evidence at once and examine it
7 offline at their leisure.
8 In conclusion:
9 Thank you, Senator Bailey; thank you, the
10 rest of the members on the Committee.
11 And I'm happy to take any questions you might
12 have.
13 SENATOR BAILEY: Thank you.
14 CHUCK KELLER, ESQ.: I guess I can go next.
15 Senators, appreciate the time.
16 My name is --
17 SENATOR BAILEY: Please -- please speak into
18 the microphone, so -- because you're -- we're -- you
19 know, this is for -- on the record.
20 So, thank you.
21 CHUCK KELLER, ESQ.: Thank you, Senators.
22 My name is Chuck Keller. I'm a
23 representative from the assigned-counsel program in
24 Onondaga County.
25 I'm not just a member of the assigned-counsel
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1 panel. I'm also a private attorney, so I take
2 retained cases as well.
3 So I have -- my perspective on this is, both,
4 as a defender who deals were indigent defense, and
5 as also a person who represents people who are able
6 to afford their defense.
7 And, I won't belabor the panel with some of
8 the remarks we've already had, but one of the things
9 that I think has been lost in the long conversations
10 is that, these reforms are, basically, changing the
11 standard of discovery practice for the prosecution,
12 from lowest common denominator, to highest common
13 denominator.
14 And what do I mean by that?
15 So in my county, Onondaga County, our
16 district attorney claims to have an open-file
17 policy; however, that open-file policy is subject to
18 interpretation by each individual ADA.
19 And what do I mean by that?
20 Some ADAs will, literally, hand you every
21 single thing they have in their file on the first
22 day they get it.
23 Other ADAs will refuse to give you anything
24 until after an indictment comes. And under the old
25 process, you had to file motions and argue it with a
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1 judge.
2 I think we can do better than lowest common
3 denominator.
4 I think these new reforms are important and
5 meaningful.
6 The other issue is that, what I hear is, all
7 this concern about this "15 days."
8 But we've already heard that the 15 days is
9 extendable by the prosecution, even without an
10 application, up to 45 days in most circumstances.
11 But more importantly, is the mechanism that
12 would result in a dismissal, is it's being tied to
13 speedy trial.
14 And for a felony that's six months.
15 So, whereas, you know, a failure to comply
16 with voluminous discovery does not result in
17 immediately -- immediate dismissal of a case, it
18 just means that the prosecution can't say, "We're
19 ready for a trial."
20 I've been practicing for 20 years.
21 I can tell you that I've seen, literally,
22 memorandums from my prosecutor's office that says,
23 Our policy is to announce ready for trial at
24 arraignment.
25 Every single case, 100 percent of the time.
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1 That is a practical and legal impossibility.
2 But what that announcement is, is it's a
3 mechanism to stop that clock.
4 And the new reforms are important because now
5 we're going to get prosecutors announcing "ready"
6 when they really are ready for trial.
7 What that does is, it forces prosecutors to
8 go to their files, review their files, take a look
9 at those files.
10 I can't tell you how many cases I've handled
11 that a prosecutor, who finally takes a good look at
12 their file, right before the eve of trial, finally
13 turns over the information, realizes they don't have
14 the same case they thought, we're able to work it
15 out.
16 I think that these reforms will actually
17 create savings in terms of economies of scale and
18 timing, because prosecutors will be forced to look
19 at their cases and make decisions about which cases
20 are worth prosecuting, which cases are not, and
21 which ones should be negotiated.
22 The prior rules under the discovery statute
23 were, and we've heard this before, essentially,
24 toothless.
25 The failure to comply resulted in no
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1 sanctions whatsoever.
2 And the most troubling problem with that was,
3 where the prosecution would withhold what we call
4 "Brady material." And even the rules for Brady
5 material have, essentially, been toothless.
6 I can tell you that I've had -- I've
7 presented to judges, "I have found Brady material"
8 over and over again, and the judge's response is,
9 Well, you know about it, so there's no sanction,
10 there's no penalty.
11 All that does is encourage hiding the ball.
12 And our criminal justice system can't be
13 about hiding the ball.
14 I think these reforms were needed. I think
15 they are a long time in coming.
16 And, Senator Bailey, I specifically wanted to
17 address something that you had raised, which is, we
18 had talked about the cooperation of witnesses in the
19 criminal justice system.
20 I'm a defense attorney, and I have trouble
21 getting people to cooperate, and it's not because of
22 discovery rules.
23 It's because I think that there's a general
24 mistrust of the criminal justice system.
25 And I think if the system appears -- again,
230
1 perception can be reality -- and I think if the
2 perception is that the system is fair, that when we
3 make an allegation against you, we tell you what the
4 allegations are, we tell you what the evidence
5 against you is, then I think people will start
6 understanding that the criminal justice system can
7 be fair.
8 And I think that will address these concerns.
9 Lastly, I'll just say that, I think what
10 we've seen is, from the prosecutors who testified,
11 was a -- a very reasonable and sound complaints
12 about problems in prosecuting cases in the criminal
13 justice system, but these are not attached to the
14 discovery reforms.
15 Getting witnesses to testify is a systemic
16 problem. It's not tied to discovery.
17 Communicating with law enforcement, getting
18 them to do their jobs in a timely manner, that's
19 not -- that -- that's -- again, that's a systemic
20 problem. It didn't just happen now. It's not going
21 to just start in January.
22 That's been a problem.
23 Crime-scene access: I'm a defense attorney.
24 I can make an application now to go to a crime
25 scene, with a judge. And the judge applies,
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1 literally, the same standard that's now codified.
2 To sum it up:
3 What we have now is, we're, literally, taking
4 something which has been piecemeal, and, again,
5 lowest common denominator across the state, and
6 changed to it standardized responses, with a
7 timetable that's meaningful, and now we have highest
8 common-denominator discovery.
9 And I can't see how that's bad for anybody,
10 whether you're a prosecutor or a defense attorney.
11 SENATOR BAILEY: Thank you for your
12 testimony.
13 DARRYL HERRING: Yes, my name is
14 Darryl Herring. I'm a VOCAL leader.
15 I'd like to address two issues that I heard
16 also, and ya'll have my testimony.
17 One, there's a group of people that are
18 incarcerated in our system who are 50 years and
19 older. And a lot of those gentlemen in New York
20 City, actually, whether it was misdemeanor or
21 felonies, did not have the discovery material that
22 was needed in their cases, and a lot of them ended
23 going upstate.
24 It was used like a noose over them.
25 When I look at their history, discovery has
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1 been an issue in New York, actually, it's been with
2 the Assembly first, for 20 years.
3 Assemblyman Lentol, I believe, was the one
4 that started it.
5 And this organization, as well as the public
6 defender's office, The Bronx defenders, that have
7 been pushing for this bill, and have, literally,
8 went to most of the Assembly, as well as senators,
9 with a package that we presented to everybody's
10 office.
11 For the last three years, I personally have
12 been a part of that -- a part of that issue.
13 And then I was a given a testimony of things
14 that had happened previously to me.
15 And, so, I know that we presented the
16 discovery package to people, and we also had people
17 that was testifying about what happened to them.
18 Now, in my testimony, one thing that I said
19 that was important, is that all the people that are
20 wrongfully prosecuted, once they come out of jail,
21 they have a chance for a lawsuit.
22 Why would the City want to have to pay out
23 money in lawsuits, when, if a person is done
24 properly -- when the discovery material and things
25 are done properly from the beginning, it doesn't
233
1 have to be done.
2 That's going to save the city and the state a
3 whole lot of money.
4 Why -- and -- and -- and it's only right.
5 I just can say this, I can't say too much
6 about it, in my case, I would have preferred to have
7 the discovery material, instead of a lawsuit,
8 because, at -- at -- at 60 years old, or 58 years
9 old, coming out of jail, losing everything, and
10 having to start all over, it's not an easy thing.
11 I look at young Kalief Browder, the young man
12 that died over a book bag.
13 And not only what happened to him, but you
14 got to look at what happened to his family too. His
15 mother had two heart attacks behind that issue. The
16 second one killed her.
17 So, looking at it from a legalistic point of
18 view is one thing, but looking at it from a
19 humanitarian point, it's another.
20 And most of the people that do end up in --
21 well, I'll say Rikers Island because I'm from the
22 city, are people of color.
23 And it's not fair, that whether it's a
24 misdemeanor or a felony, that they have to suffer
25 the indignity of not being able to properly present
234
1 a case.
2 And, yes, I'll end with this:
3 A lot of -- I did not begin to respect
4 lawyers until I got involved in this process, and
5 I saw legal-aid lawyers fighting in this battle with
6 me.
7 That's when I began to respect lawyers.
8 But before that, I felt like I was by myself,
9 because I -- and during my process, I got rid of
10 two, and was going get rid of the last one, but, it
11 didn't happen.
12 But, it's sad, that when people are in jail,
13 the only person they're supposed to put their trust
14 in is their lawyer. But he doesn't have any
15 information to give to them.
16 So how can you trust somebody, and you don't
17 know what's going on?
18 You're looking at four walls all day.
19 You're looking at another inmate that's
20 locked in with you.
21 You want to get to the truth of your case
22 too. You don't want to spend 17, 18 months, or
23 2 years, in jail, and don't -- and -- and not really
24 receive the information that you need or your
25 discovery material.
235
1 Or the sad thing about it is, people that
2 goes upstate, 15, 20 years of their life is gone,
3 behind that process.
4 I'm glad that the bill has been passed.
5 Now what we need to do is come together,
6 whether it's the prosecutor or public defender, and
7 find the best solution to implement it, because it's
8 here now.
9 It's like a baby, a baby goes through stages.
10 So now it's being born.
11 So now we have to find a way to make it
12 profitable for everybody.
13 SENATOR BAILEY: Thank you for your
14 testimony.
15 MARVIN MAYFIELD: Good afternoon.
16 My name is Marvin Mayfield. I'm a state
17 organizer with Just Leadership USA.
18 Thank you, Senators, for allowing me to be
19 here today to testify.
20 I consider it, you know, a privilege to be
21 here, to be able to speak about my personal history,
22 my personal experience.
23 And I believe the significance of me being
24 here, is so that I can bring light to the person
25 who -- people who are directly impacted, formerly
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1 incarcerated, and people who have been negatively
2 harmed, or negatively affected and harmed, by
3 these -- the laws that governed discovery.
4 At 22 years old I was arrested on suspicion
5 of burglary, burglary in the third degree, of which
6 I was charged.
7 At that time, I was taken off the street,
8 beaten. I was taken to central booking in Brooklyn,
9 New York.
10 At that point in time, I suffered some
11 serious indigenities at that point in time, going
12 back and forth from cage to cage.
13 Finally getting to court and seeing a judge,
14 where he imposed a $10,000 bail on me, which
15 I couldn't make.
16 Subsequently, I was sent to Rikers Island,
17 where I was again assaulted. My leg was broken.
18 I endured, I mean, numerous beatings and numerous
19 assaults throughout the 11 months that I spent
20 there, unable to make bail, and going back and forth
21 to court no less than 22 times.
22 22 times in that amount of time, I remember
23 distinctly, because it was one time for each year
24 that I was alive.
25 Each time I went to court, I saw -- sometimes
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1 I didn't see anyone. Most times it was adjourned.
2 But at no time, at any point, did anyone
3 offer me any evidence that was held against me.
4 There was no discovery at that point in time.
5 Being young and naive, I didn't know the word
6 or the term "discovery."
7 All I knew is, is that I didn't do what they
8 claimed I had done, and, there was no evidence to
9 prove otherwise.
10 After 11 months of suffering the
11 indigenities, assaults, by both staff and other
12 fellow incarcerated, I -- I was offered a plea deal.
13 And the judge told me, Mr. Mayfield, if you
14 plead guilty, you can go home today. We're going to
15 give you time served if you plead guilty.
16 As someone just invoked the name of
17 Kalief Browder, I didn't have the fortitude to say
18 that, you know, I'm innocent.
19 I just wanted the suffering to end.
20 So, the greatest indignity, and the greatest
21 injury, that I -- that I -- that was inflicted upon
22 me during that time, was the fact that I had to
23 plead guilty to something that I didn't do, just to
24 end the suffering.
25 And I believe that discovery is one of the
238
1 most important aspects to justice in our courts now.
2 And I would like to ask the prosecutors that
3 oppose these new discovery laws:
4 Aside from complaining, what have you done to
5 prepare for implementation?
6 What have you done to comply with what is now
7 the law?
8 All I have been hearing from district
9 attorneys is that they need more money and more
10 staff.
11 Well, it didn't take more money and more
12 staff to railroad defendants into taking plea
13 bargains.
14 For decades, New York State prosecutors have
15 held all the cards and were not compelled to release
16 any discovery evidence until the case was ready for
17 trial.
18 Many lives were devastated as a result of
19 these practices.
20 The new law presents an opportunity for DAs
21 to turn a new page on justice, a new page on
22 fairness.
23 It was through the activism of people who
24 were formerly incarcerated, or directly impacted,
25 that we have this legislation, which illustrates
239
1 that the lives of the people -- of those people are
2 on the line.
3 Even with the new legislation regarding bail
4 reform, there will still be people who are being
5 detained pre-trial in lieu of cash bail.
6 Every moment that a person spends in jail is
7 a moment where their life is at risk.
8 I don't think anyone here denies that jails
9 are violently deadly places.
10 Open, early, automatic discovery will save
11 lives.
12 These are not numbers or statistics or dollar
13 signs.
14 These are people, mostly poor, mostly people
15 of color.
16 It was us, the directly impacted, who fought
17 for this reform -- for these reforms, and we are not
18 about to surrender our hard-won victory to apathy
19 and business-as-usual attitudes.
20 Discovery reform is not an anomaly.
21 There are clear examples of -- from other
22 states that implementation is -- is as difficult or
23 -- is not as difficult or expensive as New York
24 State district attorneys claim.
25 Obviously, there needs to be changes in the
240
1 way prosecutors do business.
2 But even the State, through all -- even if
3 the State threw all the money they wanted at these
4 jurisdictions, there is still, and more importantly,
5 an attitude, that the people who suffer at the hands
6 of unfair policies do not deserve the right to
7 fairness, that the people -- that Black and Brown
8 people are inherently predisposed to criminality.
9 There's an attitude that, if you're arrested,
10 you must be guilty.
11 We have to protect the presumption of
12 innocence at all costs.
13 If the attitudes and the sensibilities of
14 district attorneys and judges and law enforcement
15 are stuck in a Jim Crow Era, then it is the
16 responsibility of the government to step in and
17 ensure that the law is adhered to, that the reforms
18 are implemented.
19 I am not here to indict an entire industry,
20 but I am here to expose the underhanded plans to
21 thwart implementation.
22 For instance, there were some DAs that
23 who -- who threatened to impose an order of
24 protection on every case in order to circumvent the
25 15-day rule.
241
1 That's just one example of the methods being
2 contemplated by the DAs that don't want to give up
3 the control they have enjoyed for ages.
4 I, too, am concerned about public safety, but
5 the issue of witness intimidation puzzles me.
6 If -- if a -- if a district attorney
7 prosecutes a case, it's because they believe that
8 person is guilty.
9 Am I right?
10 Okay, that part makes sense.
11 But if they believe that the defendant -- if
12 they believe the defendant to be guilty, then
13 doesn't that defendant already know who the victim
14 is, and even without the benefit of discovery?
15 Well, of course we care about the safety of
16 victims and witnesses, but what about the innocent
17 and -- men and women who have been coerced into
18 taking plea bargains?
19 Open discovery protects the innocent from
20 malicious prosecution.
21 As an advocate, and a person abused by the
22 policies of denying discovery, I and my colleagues
23 understand that open, early, and automatic discovery
24 is just simply about fairness, which is the
25 foundation of justice.
242
1 Thank you.
2 SENATOR BAILEY: Thank you for your
3 testimony.
4 ERIN GEORGE: Hi.
5 Thank you very much for the opportunity to be
6 here today.
7 Thank you to Senator Bailey for convening
8 these hearings.
9 My name is Erin George. I'm the civil rights
10 campaigns director at Citizen Action of New York.
11 We are a statewide grassroots organization,
12 and we're deeply engaged in the campaign and the
13 coalition that fought to pass this law.
14 Issues of mass incarceration are also
15 personally really important to me as someone whose
16 younger brother has spent most of his life in and
17 out of the system.
18 I think as folks have named, it's really
19 important to name, that the new discovery law brings
20 New York in line with dozens of states across the
21 country who have successfully passed, and also
22 implemented, laws to overhaul their discovery
23 practices.
24 And these states include traditionally red
25 states, like Texas, where that law was passed with
243
1 the support of prosecutors, because advancing
2 fairness, transparency, and efficiency is not, nor
3 should it be, a partisan issue.
4 The new discovery law advances safety and
5 justice, and I think it's really important that we
6 name that.
7 Without early and open discovery, and given
8 that more than 95 percent of cases end in a plea
9 bargain, that means that the vast majority of people
10 who are accused of crimes are never seeing the
11 evidence against them before they're making
12 decisions about whether or not to accept a plea,
13 decisions that will impact their life forever
14 thereafter.
15 Currently, prosecutors overcharge regularly,
16 and leverage Draconian sentencing laws in ways that
17 make it extremely risky to go to trial.
18 So the options at hand, the options that
19 someone who's been accused of a crime is facing, is
20 to accept a plea deal on a lesser charge, along with
21 whatever sentence the prosecutor is offering and has
22 applied, or to face trial on the top charge that
23 that prosecutor filed, with no information about
24 their case, and trust that a system that's rigged
25 against them and rooted in racism and stigma is
244
1 going to serve them justice.
2 And that doesn't seem like much of a choice
3 to me.
4 Our new discovery law will correct this
5 imbalance, and it's also going to roll back the
6 rampant injustice of a system that we have to say is
7 designed to decimate communities of color and
8 low-income communities.
9 This new law, people are saying that it was
10 rushed.
11 This new law was carefully crafted over the
12 course of years.
13 Discovery legislation has been introduced and
14 negotiated for decades.
15 And this specific law was carefully
16 negotiated over the course of years with input from
17 stakeholders across the board.
18 And despite the false rhetoric being pushed
19 by law enforcement, the new discovery law was
20 written with deliberate attention to protecting
21 witnesses.
22 It includes the same measures that have been
23 used in over 40 states that have passed discovery
24 reform.
25 And, in fact, New York's new law goes even
245
1 further to ensure witness safety, an issue that, in
2 reality, only comes up in a very limited percentage
3 of cases to begin with.
4 Under the new discovery law, judicial
5 discretion remains in place for the sharing of
6 witness contact information. Judges can choose to
7 only share witness contact information with the
8 defense attorney. And all discovery materials are
9 subject to withholding by Court-ordered protective
10 orders.
11 And as people have attested to today, motions
12 for protective orders made by prosecutors are
13 granted by judges the vast majority of the time in
14 the system.
15 Prosecutors have opposed discovery reform for
16 decades, and this is because, the goal is for them
17 to maintain the upper hand in plea negotiations by
18 withholding evidence.
19 And this prosecutorial advantage in the
20 courtroom has resulted in court delays, which costs
21 the state money; wrongful convictions; and mass
22 incarceration.
23 And, this is really driven by the perverse
24 incentive of law enforcement metrics -- right? --
25 where -- wherein, like the success, promotions,
246
1 professional advancement, of prosecutors and law
2 enforcement is directly tied to securing convictions
3 at all costs, and is not tied to achieving outcomes
4 that address root causes and prevent future harm.
5 So despite the fact -- and, you know, it's
6 upsetting to see that, despite the fact that a
7 majority of New Yorkers, as recent polling shows, a
8 majority of state-electeds, support the pre-trial
9 bills, including the new discovery law, prosecutors
10 continue to engage in a coordinated and intentional
11 strategy to subvert these laws, before they've even
12 gone into effect, by spreading fear and
13 misinformation.
14 I feel that this is extremely concerning,
15 given that prosecutors are, literally, responsible
16 for upholding the law, not circumventing it.
17 Recently, their opposition efforts have
18 become more explicit, with prosecutors publicly
19 stating their intentions to manipulate the new
20 discovery law, to the greatest extent possible, in
21 order to maintain the status quo.
22 In statewide trainings, public documents,
23 public forums, prosecutors are sharing strategies
24 for how to circumvent these new laws and prolong
25 discovery turnover.
247
1 DAs' offices are directly explaining to
2 other prosecutors how they can delay and withhold
3 the sharing of discovery material, by delaying the
4 setting up of arraignment on the indictment,
5 unnecessarily identifying people as confidential
6 informants instead of witnesses, and increasing
7 claims of exceptionally voluminous discovery, which
8 all of this flies directly in the face of the spirit
9 of the new law.
10 Prosecutors should not be training on how to
11 stop the clock.
12 They should be training on how to achieve the
13 intent of the law.
14 Prosecutors continue to claim that
15 implementing this law will cost enormous amounts of
16 money.
17 I'm not an attorney, but I do know that
18 this -- from many conversations, from being engaged
19 in hundreds and hundreds of conversations, with
20 prosecutors, law enforcement, defense attorneys,
21 legislators, other policy advocates, that this is an
22 exaggeration.
23 I also believe that fundamentally reduces
24 values for justice, fairness, and human life to
25 dollar amounts.
248
1 I've heard complaints about the increased
2 work that's going to be required to pursue
3 infractions, violations, and misdemeanors under the
4 new law.
5 I think a good way to address this concern,
6 and also reduce caseloads, would be for prosecutors
7 to decline to prosecute or to dismiss these
8 low-level cases.
9 As regards to 15-day time -- the 15-day
10 timeline that keeps being raised, the law calls for
11 turn over of materials that are in the prosecutor's
12 possession at 15 days.
13 And additional -- like, additional material
14 thereafter, can be turned -- that arrives
15 thereafter -- right? -- lab testing, et cetera,
16 turned over after the 15 days.
17 And, again, there are extensions that can be
18 filed for, especially voluminous discovery.
19 The starting point for implementing this
20 discovery law should be for DAs to rethink how
21 they run their offices in order to comply.
22 Yes, implementation is going to require
23 adjustments. Right?
24 They're going to need to rethink how they
25 prosecute, bring fewer meritless cases, and
249
1 re-prioritize existing resources.
2 Law enforcement should be treating arrests
3 and prosecutions as limited resources, and thinking
4 about discovery implementation as an opportunity to
5 reallocate funds, and shift many cases out of the
6 system completely because they never belonged there
7 in the first place.
8 These things are all easily done, and they're
9 also necessary to meet the discovery obligations
10 when the law goes into effect in a couple of months.
11 The new discovery law is also going to lead
12 to quicker, fairer, and more accurate case
13 resolutions, which means fewer taxpayer dollars
14 spent on maintaining mass incarceration.
15 These are resources that can and should be
16 invested in the things that truly create community
17 safety and stability, like public education,
18 affordable and stable housing, health care,
19 community-based services, et cetera.
20 I'll sort of -- one of the, like, last things
21 I want to add is:
22 I'm also concerned with the continued
23 rhetoric that I've heard on -- at these hearings,
24 and that I've heard from law enforcement, that
25 implementation of the new pre-trial laws, and
250
1 implementation of the discovery law, will
2 necessarily result in decreased funding for
3 programming and treatment.
4 This is incredibly disturbing.
5 It's not a zero-sum game, and we need to stop
6 treating it that way.
7 Government can and should, both, implement
8 the new pre-trial laws, and increase funding of
9 services.
10 And the costs that we should care the most
11 about, are the costs centered by those of us who
12 fought and won these bills, won these laws, and it's
13 the human cost of an unjust system of mass
14 incarceration that destroys lives.
15 New York's discovery law was passed with the
16 express intent of achieving necessary overhaul of
17 the system.
18 And I think that we talk a lot about laws in
19 Albany as being driven by a New York City agenda.
20 That's not the case here. Right?
21 Unlike downstate, in recent years, upstate
22 counties have seen an explosion in pre-trial
23 incarceration, overwhelmingly targeted at people of
24 color.
25 And we really have stop the statewide
251
1 geographic distinction of how justice is served.
2 Upstate counties, as folks have named, face
3 unique challenges in ending mass incarceration, as
4 there's, generally, fewer defense and advocacy
5 resources, more limited court infrastructure.
6 And that's exactly why strong implementation
7 and compliance with this new law is so critical.
8 This is an opportunity for us to rethink
9 public safety, which we all care about, and to
10 utilize the implementation process as an opportunity
11 to advance solutions that create safety for
12 everyone; and "everyone" includes, particularly, the
13 low-income communities and communities of color
14 whose safety is threatened by the current system of
15 mass incarceration, criminalization, and punishment.
16 Prosecutors and law enforcement can't be
17 allowed to undermine the implementation process and
18 continue to impede true safety for all New Yorkers.
19 Thank you.
20 SENATOR BAILEY: Thank you.
21 I want to thank you all for your testimony,
22 and I appreciate your -- your consistent efforts
23 in -- in -- in this matter, much like I appreciate
24 the prosecute -- prosecutors and defense attorneys.
25 I don't have any questions just yet, because
252
1 I don't believe in speaking just to speak.
2 I -- I think many of you, your testimony has
3 spoken, and we -- and we've covered these
4 conversations in -- in -- in -- in the prior panels.
5 I appreciate your testimony.
6 And I would ask if Senator Jordan has any
7 questions?
8 SENATOR JORDAN: I just have just a short
9 one.
10 Erin?
11 ERIN GEORGE: Yeah.
12 SENATOR JORDAN: Large part of what you spoke
13 about was DAs trying to subvert the new laws
14 coming down.
15 Where -- where do you get that information
16 from?
17 Because the panel that was here are all
18 trying to be in compliance, but they're telling you
19 there are problems that they're running across with
20 complying.
21 They're doing the best that they can with
22 what they have.
23 So how many district attorneys do you know
24 that are trying to subvert the laws?
25 Where do you get that information from?
253
1 And, how do you figure that?
2 ERIN GEORGE: Yeah, I'd be happy to share.
3 There was a state -- a PDF that was
4 circulated, a statewide, from DAASNY -- or, I don't
5 know if it was DAASNY specifically -- from the
6 training institute, that includes really specific
7 recommendations -- and I'm happy to share that --
8 specific recommendations on things that prosecutors
9 can do to stop the clock, some of which -- all of
10 the things that I named in my testimony came
11 directly out of that PDF.
12 There are also reportings of trainings that
13 have been held, where -- and I'm happy to share that
14 as well -- trainings that have been held where
15 prosecutors are training other prosecutors on how to
16 use loop -- what they're identifying as "loopholes"
17 in the law to slow the clock, to --
18 SENATOR JORDAN: Right, because in -- they
19 are having problems with that 15-day time frame.
20 So, they're trying to comply, and they're
21 looking at how they're going to comply, and come
22 forth with all of this.
23 So --
24 ERIN GEORGE: I think neither of us -- with
25 all due respect, neither of us are district
254
1 attorneys, and I would encourage you to listen to --
2 I'm happy to send -- I would encourage you to listen
3 and read the materials that are out there.
4 I'm happy to also send press, and press
5 clips, where, almost every single day, we are
6 seeing -- we are seeing multiple articles, dozens of
7 articles, where -- where specific cases are taken
8 and misrepresented as to how those cases will be
9 handled under the new laws; under the new bail and
10 new discovery law.
11 And that is fear-mongering tactics to
12 undermine these laws, from my perspective.
13 SENATOR JORDAN: In your opinion, correct.
14 Okay. Thank you.
15 SENATOR BAILEY: So, with that being said,
16 I wanted to thank you, especially, you know,
17 speak -- speaking about your former -- your --
18 your -- your past experiences.
19 You know, one of the things -- I was going to
20 save this for the end, but -- but it may bear worth
21 repeating, but I wanted to mention it now.
22 One of the reasons why discovery was just
23 really important, in my opinion, was just because
24 it's about knowing what you've been accused of.
25 And -- and that -- and that's, essentially,
255
1 what it's distilled down to.
2 And -- you know, and if you're -- you're
3 forced to take a plea, and -- and you're asking
4 somebody to condition their life upon something, and
5 place your hands in -- and place your life in the
6 hands of people that you don't know, and if you're a
7 poor indigent person, you really haven't met them
8 prior to the assignment of counsel, and they come
9 before you and they say, Hey, you know, I don't have
10 everything, but guess what?
11 You can go home right now if you take this,
12 or, you'll only do four years if you take this.
13 And -- and, again, I -- I am not judge, jury,
14 or, you know, anything else, but what I am is
15 somebody who have -- who -- who's seen this play out
16 in my community in real life.
17 And -- and -- and I'm appreciative of you --
18 of you telling your stories.
19 I just thank you for your -- for your
20 testimony --
21 OFF-CAMERA SPEAKER: Thank you, sir.
22 OFF-CAMERA SPEAKER: Thank you.
23 SENATOR BAILEY: The next panel:
24 Reverend Emma J. Lottin-Woods (sic) of
25 WESPAC Foundation;
256
1 Mr. Khalil Cumberbatch, chief strategist for
2 New Yorkers United for Justice;
3 And Mr. Dewey -- Dewey -- and Dewey Bozella,
4 exoneree advisory counsel for the Innocence Project.
5 At your leisure, you may commence, and please
6 state who you are prior to your testimony.
7 REV. EMMA J. LOFTIN-WOODS: Good afternoon.
8 I am Reverend Emma Jean Loftin.
9 Thank you.
10 I thank the panel.
11 I thank you, Senator, for holding this
12 hearing.
13 As you have my testimony:
14 I am a 54-year resident of New York,
15 Westchester County.
16 I'm representing WESPAC here today.
17 AUDIENCE MEMBER: Can't hardly hear.
18 REV. EMMA J. LOFTIN-WOODS: Sorry,
19 I apologize.
20 I said again that:
21 I am Reverend Emma Jean Loftin-Woods.
22 I'm a 54-year resident of New York,
23 Westchester County.
24 I am representing WESPAC here today, a
25 community organization in Westchester County
257
1 fighting for critical social change.
2 I want to begin by thanking the Legislature
3 for passing discovery-law reform in April of this
4 year.
5 I'm one of the thousands of New Yorkers
6 across the state who have been impacted by our
7 regressive, unjust discovery laws, and who fought
8 for change.
9 I want to express my deep gratitude to the
10 Legislature for hearing the suffering of
11 New Yorkers, and responding by passing the new law.
12 Together, we stood up and said no to a
13 "Blindfold Law" that allowed prosecutors to withhold
14 evidence or hide the fact that none existed.
15 We insisted that New Yorkers deserve to know
16 the facts of their cases, that we all deserve open,
17 early, automatic discovery turnover.
18 While much of this hearing has focused on the
19 specifics of implementation, it is critical to
20 remember the human impact and the importance of
21 discovery reform, to ensure that New Yorkers are not
22 coerced into pleas, and have all the evidence they
23 need to prepare for their own defense.
24 I know these issues very personally.
25 I spent four days in the Westchester County
258
1 jail. No bail, because it was a weekend.
2 I had three charge -- three felony charges
3 alleged against me, Friday night, you don't get
4 bail.
5 The court proceedings lasted for 96 days.
6 My legal term -- team repeatedly asked for
7 trial. They were prepared for it.
8 There was no discovery. I didn't know what
9 was going on.
10 I knew what was alleged against me, but a
11 trial never took place.
12 In the end, the charges alleged against me
13 were subsequently reduced to a misdemeanor, and the
14 file has been sealed.
15 My legal fees amounted to over $7,500.
16 The mental and emotional scars will never go
17 away. They are constant reminders of where this
18 system was.
19 Now, the Legislature has passed discovery-law
20 reform.
21 No one else will suffer like I did, like my
22 family did.
23 Prosecutors will be required to turn over all
24 of the evidence 15 days after arraignment and prior
25 to any plea deal.
259
1 As New Yorkers, who suffered and fought for
2 change, we insist on the effective implementation of
3 these bills.
4 Discovery reform has been implemented in many
5 jurisdictions, so this work is not unique to
6 New York.
7 Both Texas, of all places, North Carolina,
8 have implemented open-file discovery systems. And
9 prosecutors in Texas have written in support of
10 New York legislation.
11 Finally, I want to address relate -- issues
12 related to funding.
13 Some of the requests for additional funding
14 from DA offices have just been outlandish.
15 For example, Westchester County's DA has
16 claimed that he needs 42 additional staff positions
17 to implement discovery reform.
18 Underlying the testimony of the DAs is the
19 belief that they should continue to do business as
20 usual, prosecuting the same number of cases, and
21 doing so with the same illegitimate leverage.
22 However, the goal of the discovery
23 legislation is to change prosecutorial practice.
24 Prosecutors must rethink how they prosecute.
25 We pay them.
260
1 They must bring fewer needless cases, and
2 re-prioritize, and reallocate their resources.
3 They must be more thoughtful about charging,
4 to apply scrutiny on their front end, so that they
5 are not pursuing wrongful or needless cases.
6 This is an opportunity to exercise true
7 prosecutorial discretion.
8 Our communities, those who have been
9 devastated by mass incarceration and decades of
10 disinvestment are in dire need of funding for
11 education.
12 When our children are educated, they are more
13 less likely to commit crimes.
14 Health care, which is a dire need in my part
15 of town, and all services that all families of lower
16 income, even what used to be middle income, that
17 doesn't exist, we all need services for our
18 families.
19 This is where the resources should be
20 directed, not in the pocket of the prosecutors.
21 Our communities are counting on you all.
22 We cannot wait.
23 Thank you so much.
24 SENATOR BAILEY: You for your testimony.
25 KHALIL CUMBERBATCH: Thank you, Chairman, and
261
1 Committee members, for the opportunity to speak
2 before you today.
3 My name is Khalil Cumberbatch, and I am here
4 today on of behalf my organization, New Yorkers
5 United for Justice, a broad, diverse coalition that
6 I'm heading up, along with another
7 formerly-incarcerated New Yorker, Topeka K. Sam,
8 with one mission: Ensuring a fairer and more just
9 criminal justice system for all New Yorkers.
10 As a new organization, we work with our
11 colleagues to help raise statewide awareness of the
12 need for pre-trial reforms.
13 After dozens of conversations, we decided to
14 launch had a video campaign that focused on
15 discovery reform, because we believed, as did many
16 others, that discovery, despite its misleading and
17 ambiguous legal terminology, referred to one of the
18 core values of our justice system, a value that is
19 shared across political spectrums and ideologies.
20 The simple notion that, if you are accused of
21 a crime, you have to right to see the evidence and
22 face your accusers in court.
23 However, and as the Committee and the
24 witnesses who have testified earlier knows all too
25 well, the theory is very different than practice.
262
1 Thanks to the members of this Committee and
2 other members of both chambers, New York State
3 joined 35 states, including Texas, as was mentioned
4 by previous witnesses, New Jersey, and Florida, who
5 have open-discovery practices that require
6 prosecutors to turn over police reports and other
7 evidence in a timely manner in the criminal-case
8 process.
9 Prosecutors in these states support lifting
10 so-called "Blindfold" laws to ensure that laws
11 fair -- that laws are fairer and more efficient.
12 Assistant District Attorney Linda Garza from
13 Webb County, Texas, said:
14 "Prior to discovery reform, Texas prosecutors
15 were saddled with the gatekeeping responsibility of
16 deciding what evidence should be turned over to the
17 accused.
18 "But under the Michael Morton Act, we've been
19 relieved of this ethical dilemma without any
20 increased security concern for witnesses or victims.
21 "Every day, open discovery helps to restore
22 Texans' faith in our criminal justice system, and we
23 know it's something New Yorkers can accomplish
24 here."
25 Texas, a particularly conservative state,
263
1 reformed their discovery laws in 2013 to no
2 ill-effect.
3 That year, Texas, a historically,
4 quote/unquote, law-and-order state, with
5 254 counties, 192 more counties than New York State,
6 passed and implemented the Michael Morton Act, named
7 after a wrongfully-convicted, falsely-imprisoned
8 exoneree.
9 Michael was convicted in 1987, and sentenced
10 to life in prison, for the murder of his wife.
11 He was exonerated in 2011 after DNA testing
12 connected another man, who subsequently killed again
13 to the brutal crime.
14 In their investigation, Michael's lawyers
15 discovered that the prosecutor in the original case
16 had withheld critical evidence that could have
17 pointed to the real killer, and spared Morton the
18 quarter century he spent behind bars, and would have
19 spared another woman's life and another family's
20 senseless tragedy.
21 It is worth noting that, since 2013, the sky
22 hasn't fallen in Texas, as it relates to public
23 safety, witnesses' names and addresses, along with
24 other sensitive information, being leaked or turned
25 over to defense counsels.
264
1 In fact, crime rates in Texas, as well as
2 other states who had implemented similar laws, have
3 seen crime rates decline.
4 Similarly, in New York, there have been
5 equally appalling cases of injustice, where the
6 withholding or delay of turning over critical
7 evidence led to false confessions, and, therefore,
8 wrongful convictions of individuals, costing
9 taxpayers millions of dollars spent in prosecution,
10 housing, and in some cases, financial-compensation
11 payouts to those wrongfully-convicted persons.
12 The "Exonerated Five," formerly known as the
13 "Central Park Five," being one of the most prominent
14 cases and examples.
15 Another example is the case of Dewey Bozella,
16 who is set to testify after I, and don't want to
17 steal any of his thunder, but I will say something
18 that he said to us:
19 "In 1977, 92-year-old Emma Crapser was
20 murdered in her Poughkeepsie, New York, apartment.
21 And police claimed Ms. Crapser walked in on a
22 burglary I was committing, and that I killed her.
23 "Once convicted, I learned that key
24 information was not disclosed to my defense,
25 including pages of police reports containing
265
1 statements from neighbors that contradicted the
2 testimony of the prosecution's key witness.
3 "Discovery rules requiring early disclosure
4 would have enabled my defense to find these
5 witnesses and call them at trial, and would have
6 had" -- "and wouldn't have lost more than a quarter
7 century of my life.
8 "It is time for New York to get it right.
9 "No one should ever have to go through what
10 I went through.
11 "And I am an example of how poor discovery
12 can spell a dead end for justice, and why lawmakers
13 in Albany must pass discovery reform in this
14 session."
15 Obviously, that was stated before the reforms
16 were actually passed.
17 In closing, and as the Committee knows, and
18 as witnesses have highlighted already today, there
19 are many benefits to discovery reforms passed
20 earlier this year, one of which being a much-needed
21 upgrade to -- of the digital capability of law
22 enforcement, and prosecution's ability to make
23 evidence accessible much earlier in the process to
24 defense, and also making the communication between
25 police departments and district attorneys' offices,
266
1 as was mentioned earlier by DAs themselves, more
2 streamlined; thus, eliminating the reliance on,
3 quote/unquote, tape rooms, triplicates, typewriters,
4 and paper chain-of-command sheets.
5 Bringing this aspect of the justice system
6 into the twenty-first century is also a necessary
7 and long-overdue overhaul.
8 More importantly, the new discovery law will
9 make our communities safer.
10 No longer will public safety be at risk by
11 the inappropriate withholding of evidence that has
12 led to false confessions, pressured plea deals,
13 wrongful convictions, and, ultimately, the failure
14 to hold those who commit crimes accountable for
15 their actions.
16 New York is safer, fairer, and more just
17 because of this law.
18 Thank you again, Chair, and Committee
19 members.
20 If there are any questions the Committee has,
21 I will attempt to answer them.
22 SENATOR BAILEY: Thank you for your
23 testimony.
24 DEWEY BOZELLA: First of all, I'd like to
25 apologize.
267
1 I had to go outside and, you know, for the
2 car, pay that ticket.
3 First and foremost, I apologize, Senators,
4 and thank you for having me.
5 I would like to first start out by saying,
6 I was wrongfully convicted.
7 I did 26 1/2 years for a crime did I not
8 commit.
9 And I'll start off by saying that, in 1977,
10 I was arrested for a murder. And I was only
11 supposed to have been hold for three days. But they
12 kept me for 28 days, to where the judge said, You
13 got to let this man go.
14 And, they let me go on what they called
15 (indiscernible) in Kentucky.
16 They didn't have no evidence on me or nothing
17 like that.
18 So after that, 5 1/2 years went by, and I got
19 re-arrested for the same charge, but they made a
20 deal with two guys from the state penitentiary to
21 testify against me.
22 But they also needed a collaborating witness.
23 So, without one single shred of evidence,
24 nothing pointed to me, and everything, I went to
25 trial, and I got sentenced, 20 years to life.
268
1 For the next -- from 1983, all the way to
2 1990, I was fighting my case. And while I was
3 fighting my case, my case was overturned, and it was
4 overturned because I didn't have a jury of my peers.
5 So I went to trial, and this time I went to
6 trial, it was so bad, that they offered me three
7 different times.
8 They offered me manslaughter, which I didn't
9 take.
10 Then they offered me time served.
11 And then the last one they offered me was
12 (indiscernible) offer plea. All I had to do as was
13 sign a piece of paper and I could have walked right
14 out the courtroom right on the spot.
15 I didn't take the deal.
16 Then, right behind that, the jury came out
17 and I got convicted again, 20 years to life, with
18 not one single shred of evidence.
19 From 1990, all the way to 2005, for the next
20 15 years, I kept fighting for my freedom.
21 And then I heard about the Innocent (sic)
22 Project.
23 So I heard about the Innocent (sic) Project.
24 I kept writing them and writing and writing them,
25 till one day they finally accepted my case.
269
1 When they finally accepted my case, which was
2 in 2005, they went to the Poughkeepsie Police
3 Department, and the Poughkeepsie Police Department
4 destroyed all the evidence.
5 They destroyed the hair samples.
6 They even destroyed the evidence that said
7 that someone's fingerprints was found on the side of
8 the house. And he was arrested for the same type of
9 murder I was arrested for.
10 So, from 2005, when after they found out that
11 all the evidence was destroyed, the Innocent (sic)
12 Project went and got Wilmer Cutler Hale law firm, a
13 high-powered law firm, to get involved in my case.
14 So they were started working on my case for
15 the next three years.
16 And then they told me: Listen, Mr. Bozella,
17 we can't do nothing for you. All the evidence is
18 destroyed. We can't find a witness or witnesses, or
19 they're dead.
20 And something came over to me, to where
21 I said, Just go -- go -- go by the arresting police
22 officer (sic) house. I think he might have a change
23 of heart. Just -- just go by and see him. Just,
24 please talk to him.
25 So, I think about eight months went by. This
270
1 was in 2008.
2 They finally went by.
3 But in the meantime, before they went over
4 his house, I went to four parole boards. And each
5 time I went to the parole board, they gave me two
6 more years added to my sentence.
7 So I was like saying, how the heck am I going
8 to get out of here?
9 So when this -- when I told them about
10 Lieutenant (indiscernible), the police officer, they
11 finally went over to his house. And when they went
12 over his house, he, at first was (indiscernible).
13 But then he opened up, and they asked him a
14 question: Do you have any recollection about
15 Mr. Dewey Bozella (sic) case?
16 And he said, Yes, I do.
17 What can you tell us about Mr. Bozella (sic)
18 case?
19 He said, I want you to know, I kept
20 Mr. Bozella's case, his personal files, at my house
21 for the last 19 years.
22 Are you supposed to keep his personal files
23 at your house?
24 He said, No, I'm not. But I always felt that
25 this man was innocent when the other guy's
271
1 fingerprints was found. So I took the files and
2 I kept them here at my house, because I always knew
3 that someone would come talk to me about it.
4 "So here are his files."
5 Inside of them files were Brady and Rosario
6 material that said that someone else committed the
7 murder.
8 Not only that, my lawyers, they went to the
9 prosecuting district attorney's office, and when
10 they went to his office, they didn't want him to go
11 into the files. But they found way to where they
12 had him to give him the files, and there was four
13 boxes, but one of the boxes was missing.
14 Inside one of the boxes they found the tape.
15 And inside the tape it said that someone else
16 committed the murder.
17 And the worst thing about it,
18 with the prosecuting district attorney,
19 William O'Neill (ph.), who prosecuted me in 1983 and
20 1990, was in the room, with two police officers,
21 that someone else said that they committed the
22 murder.
23 And -- so that was the beginning of my case
24 being overturned.
25 Not only that, they also found evidence that
272
1 someone else, that was also arrested for the same
2 type of murder, his fingerprints were found on the
3 side of the same woman, and it showed the same
4 identical type of killing.
5 They didn't go after him, they came after me.
6 So with all this newly-discovered evidence,
7 I went before the judge. And, in 2009, the judge
8 said: This is overwhelming evidence. I believe, if
9 this man would have had this in any one of the two
10 trials, it would have been a different outcome.
11 So the case was dismissed, and it was
12 dismissed on the day, like today, the 28th.
13 OFF-CAMERA SPEAKER: Wow.
14 DEWEY BOZELLA: And this make 10 years that
15 I've been out.
16 OFF-CAMERA SPEAKER: Wow.
17 OFF-CAMERA SPEAKER: Wow.
18 ERIN GEORGE: And, so, when you talk about
19 discovery, and a miracle, after 32 years of fighting
20 for my freedom -- excuse me for being emotional --
21 after 32 years of fighting for my freedom, because
22 the prosecuting district attorney didn't want to
23 turn over the evidence, you need it.
24 You need it.
25 They need to be fair.
273
1 Just be fair.
2 Don't be injust (sic) just to make a
3 conviction.
4 Thank you.
5 SENATOR BAILEY: I -- I'm rendered speechless
6 very infrequently, but I am speechless as to what
7 I heard.
8 Thank you for your courage, and thank you for
9 your testimony.
10 And thank you for the courage.
11 Some people say the courage of your
12 convictions, but there's a pun there.
13 But you had so much courage, like, I --
14 I cannot -- like, facing that kind of adversity, and
15 being asked to -- you can go home. But if you know
16 what you didn't do, that -- that -- that -- that
17 sort of strength happens.
18 And, we talk about the fiscal cost.
19 What's the human cost that we face?
20 Like, I -- I -- I -- I -- I have vivid
21 memories of things that have happened to me far, far
22 less serious than that, and they are an indelible --
23 indelibly, you know, etched in my mind.
24 I -- Mr. Bozella, I -- I -- I simply cannot
25 imagine that.
274
1 I thank you -- I thank you for -- for your
2 strength again.
3 I thank you for your testimony today.
4 And -- and I -- and I would hope that this is
5 instructive to anybody that's listening, and as to
6 what the goal of this whole justice reform is.
7 It's not about just letting people free, but
8 there was somebody else who did that. And if
9 somebody else took someone else's life, that person
10 should be prosecuted as opposed to you.
11 If we're really in the business of finding
12 truth, the more evidence that we have, ultimately,
13 it -- it has to come back.
14 And -- and -- and you -- you -- you both
15 testified incredibly wonderfully.
16 Khalil, I've known you for quite some time,
17 so thank you for your testimony.
18 Reverend, thank you for your testimony.
19 But Mr. Bozella, I just -- I don't have any
20 questions.
21 I just -- I just want to say, thank you.
22 I truly want to say, thank you, for -- for
23 just being willing to -- to -- to come before us
24 today.
25 DEWEY BOZELLA: You're welcome, sir.
275
1 SENATOR BAILEY: Senator Jordan?
2 SENATOR JORDAN: I don't have any questions,
3 but thank you for your testimony.
4 DEWEY BOZELLA: Thank you.
5 SENATOR JORDAN: You're so welcome.
6 SENATOR BAILEY: Thank you all for -- for --
7 for coming.
8 SENATOR BAILEY: The next and final panel
9 will be:
10 Attorney Art Frost, a private criminal
11 defense attorney, and partner at Frost & Kavanaugh
12 Law Firm;
13 Attorney Shane Hug, a criminal defense
14 attorney from the Capital District, formerly of the
15 Rensselaer County District Attorney's Office;
16 And, Andrew Correia, a public defender in
17 Wayne County.
18 I thank you all for your patience in -- in --
19 in waiting to testify today.
20 And I appreciate your -- and
21 Mr. George Lamarche.
22 I apologize.
23 Mr. George Lamarche as well.
24 So, thank you, gentlemen, for -- for -- for
25 sticking it out until the -- the final panel.
276
1 And you may commence, and please indicate
2 your name for the record prior to your testimony.
3 ARTHUR FROST, ESQ.: Good afternoon, Senator.
4 My name is Arthur Frost.
5 For the last 18 years I've had the privilege
6 of being a public defender in Rensselaer County.
7 Apart from that, I am engaged in private
8 practice, and I do criminal defense and civil
9 litigation.
10 I'm not going to repeat a lot of stats for
11 you. You've heard enough of them, you know them
12 already.
13 Instead, I'd like to contrast two cases that
14 I'm currently working on.
15 One is a young man who's accused of assault.
16 He's been criminally prosecuted, and the case
17 has been pending for eight months.
18 I have no discovery.
19 Zero.
20 I went to a pre-trial hearing, and my client
21 looked at my file, and looked at the prosecutor's
22 file, and said, Why's her file three times the size
23 of yours?
24 I said, Good question.
25 I didn't have an answer for him.
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1 Now, I also represent a woman who was beaten
2 badly by some city workers.
3 It's a civil case.
4 I've spent the last seven months preparing
5 discovery responses.
6 I've given a full bill of particulars, a list
7 of every injury she's ever suffered, any injuries
8 that I claim are permanent, any preexisting
9 conditions that were aggravated by these workers'
10 actions.
11 I've given every medical record she's had for
12 the last five years.
13 I've given authorizations so they can get
14 those medical records themselves.
15 I've submitted her for a deposition.
16 I've submitted her for a medical examination,
17 not by one, not by two, but by three doctors.
18 Even -- because it's against city workers,
19 even before that, she sat for a 50-H hearing, where
20 they examined her, and then they examined her again.
21 If we had discovery in civil cases like we
22 have in criminal cases, Progressive, Geico, and
23 Liberty Mutual would storm the doors, screaming high
24 dudgeon, How dare you take our money without
25 discovery.
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1 If we're going to protect money like that,
2 shouldn't we protect liberty?
3 New York's discovery rules in criminal cases
4 are appalling. They're shameful.
5 And now, fortunately, they're different.
6 I can't tell you how many times I've sat with
7 young attorneys.
8 Part of what I do in the public defender's
9 office is train some of the younger attorneys in our
10 office.
11 I can't tell you how many times I've sat with
12 them and said, "I know what your case looks like on
13 paper, but here's what's really happening."
14 The reason I know that is because I've
15 practiced law for 23 years.
16 How is a young prosecutor -- or, pardon me, a
17 young defense attorney supposed to know the things
18 that I've gained through all that experience?
19 When the papers exist, and they're in the
20 prosecutor's or the police's files, they should be
21 turned over.
22 There's no reason.
23 What's the big secret?
24 Where are these papers?
25 Why can't we have them?
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1 Sometimes prosecutors don't disclose material
2 out of malevolence.
3 Most times, they don't do it innocently.
4 Occasionally, they don't do it because of
5 ignorance.
6 But every time they don't do it, it's wrong.
7 Give us what we need. Let us do our jobs,
8 let us defend.
9 Most of what I've heard has been under the
10 assumption that the accused is guilty.
11 You've just seem a dramatic example of what
12 happens when they're not.
13 How dare we do this.
14 You fixed it.
15 Keep it this way.
16 Thank you.
17 SENATOR BAILEY: Thank you.
18 And I'm going to break from what I was doing
19 before, and I just want add a comment to what
20 your -- what your testimony was.
21 I was a practicing civil attorney, and
22 I practiced in civil courts downstate, usually
23 Bronx County and Kings County.
24 And I would -- I often saw pleadings
25 stricken, you know, for an inability to provide
280
1 discovery at a preliminary conference or a
2 compliance conference.
3 But, generally speaking, that discovery was
4 plentiful in a civil case.
5 Your response to your interrogatories and
6 other statements.
7 And, as you mentioned, when a monetary matter
8 is on the line, the civil statutes allow for broad
9 and sweeping discovery.
10 Yet, when life and liberty are on the line,
11 and -- and, sometimes, in all of conversations and
12 arguments we've had on this, we forget to make these
13 points.
14 And I'm glad you made that point for the
15 record, because, I know money is important, but the
16 human cost is the most important.
17 And I just -- I would like to thank you for
18 that.
19 And I've been -- I'm sorry for breaking with
20 the discussion of letting the people on the panel
21 testify prior to my interjection.
22 But I just wanted to thank you for your
23 testimony.
24 ARTHUR FROST, ESQ.: You're welcome, Senator.
25 GEORGE LAMARCHE, ESQ.: I'll go next, in that
281
1 same vein.
2 My name is George Lamarche. I am a
3 private-practicing criminal defense lawyer.
4 I'm also a civil litigator, and limit my
5 civil practice to representing plaintiffs in serious
6 personal-injury claims.
7 I would like to thank the many people who
8 have dedicated countless hours and tireless energy
9 to bringing much-needed change to our criminal
10 justice system.
11 My perspective, like Mr. Frost's
12 perspective, is a little different than some of the
13 other individuals who have testified before you, in
14 that, I am not only in private practice, but also a
15 civil litigator.
16 As you now well know, when a claim is brought
17 against a defendant in a personal-injury claim, that
18 defendant is entitled to full and complete
19 disclosure of all matters material and necessary to
20 the defense of that action.
21 As a -- as plaintiff's lawyers (sic), I can't
22 say to a defense lawyer, My client was injured. Pay
23 my client money, unless there is full and complete
24 discovery.
25 I can't say, Your client knows full well what
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1 your client did, so pay my client, unless, and
2 until, there is full and complete discovery.
3 In a civil case, understandably, the defense
4 wants to examine my client's background, explore all
5 of her medical history, obtain statements or take
6 depositions of parties and relevant non-parties, as
7 well as obtain disclosure regarding the use of
8 experts.
9 On the other hand, historically in New York,
10 the defendant in a criminal matter, essentially,
11 receives none of that information until the day of
12 trial, if we're lucky.
13 I have struggled with the fact that claims
14 for money seemed more important than matters where a
15 defendant faces prison.
16 That our state was more content with someone
17 going to jail than it was with someone having to pay
18 a money judgment.
19 For years, I've had to explain to my clients
20 the fundamentally unfair system of justice in
21 New York, that authorizes more mandated discovery in
22 a simple tort case than for a person who is facing
23 life-altering consequences and loss of liberty.
24 We have heard the calls from prosecutors that
25 the capabilities to comply with the sweeping and
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1 long-awaited discovery reform will be difficult;
2 That the limited resources and technological
3 incapacities will require millions of dollars in
4 additional resources to make compliance possible.
5 We've also heard complaints that this statute
6 will require more judicial intervention,
7 applications for protective orders, and more
8 hearings.
9 However, in my experience in civil cases,
10 judicial intervention is rarely required, because
11 plaintiffs and defense counsel often work together
12 to resolve issues, rather than filing motions and
13 seeking judicial involvement.
14 Importantly, if I decide to prosecute a civil
15 case on behalf of an injury victim, I know what the
16 rules are.
17 When I go to a conference in a civil case,
18 and the Court sets a scheduling order, I don't say
19 that I don't have the time to get the discovery done
20 because my firm lacks technology or staff.
21 If I decide to prosecute a civil case, I do
22 it with the knowledge that certain obligations need
23 to be met.
24 If I can't, or I don't want to, comply with
25 those obligations, I don't pursue the case.
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1 If I have a concerns that a case may lack
2 merit, or that I may not have all of necessary
3 information to prove my case, I decline to prosecute
4 the case.
5 The rules as they exist force me to make
6 important choices before proceeding with an action.
7 This same concept will apply to prosecutors.
8 For too many years, prosecutors have utilized
9 the discovery rules to hold back information and
10 game the system, to push plea bargains or threats of
11 higher sentences without an ability for a defendant
12 to view all of the evidence and make a truly
13 informed decision.
14 The new discovery rules finally swing the
15 pendulum back in the right direction and make our
16 justice system much more transparent.
17 These new rules return a sense of trust to
18 our system of justice that are long overdue.
19 In my experience, prosecutors have not
20 appreciated that I have an obligation to offer
21 guidance to my clients about the evidence against
22 him or her and the likelihood of success.
23 That in order to honor my client's
24 6th Amendment right to effective assistance of
25 counsel, I have an ethical and professional
285
1 obligation to obtain evidence so I can properly
2 provide guidance and counsel.
3 I have received plea offers from prosecutors
4 at arraignments with time limits to accept or
5 reject.
6 I've heard prosecutors say, "Your client
7 knows what he or she did," despite the well-known
8 burden of proof.
9 I have walked into conferences with judges,
10 probation officers, and prosecutors, and felt like
11 I was walking into a party I didn't receive an
12 invitation to attend, where the decisions about my
13 client's future were already made long before any
14 discovery is ever provided.
15 The expectations placed on defense lawyers by
16 clients, and the ethical canons we agree to in
17 becoming involved in cases, are now being honored by
18 this new discovery statute.
19 While any amount of change can bring some
20 feeling of fear, with change will come a new normal,
21 as the system will adjust and adapt.
22 It should not a time of complaining about
23 what we can't do or how hard it's going to be to do
24 it, or how much money it's going to take to make it
25 happen.
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1 This is a new opportunity; a time to reassess
2 how things are being done, to prioritize resources,
3 and to cooperate and collaborate to do what needs to
4 be done to move our system of justice forward.
5 I hope the energy being spent challenging,
6 questioning, and criticizing the work that has been
7 done to finally bring us up to speed with the rest
8 of the country can be refocused on what needs to be
9 done to make this work, because we all have a goal
10 to administer justice.
11 And these new discovery rules will finally
12 help us to achieve that.
13 Thank you.
14 SENATOR BAILEY: Thank you for your
15 testimony.
16 SHANE HUG, ESQ.: Good afternoon.
17 My name is Shane Hug. I'm an attorney who's
18 got an office in Troy.
19 I think I have a somewhat unique perspective
20 to offer on this conversation, given my -- my
21 history.
22 I've been an attorney for about 11 years, and
23 I've practiced exclusively criminal law, but
24 I practice it on both sides.
25 7 1/2 years of that time I spent as a
287
1 prosecutor, prosecuting crimes, from petty
2 larcenies, up to homicides, and everything between.
3 I've seen the worst that society has to offer
4 to each other: Terrible murders. Terrible
5 assaults. Terrible sex offenses.
6 And for the last 3 1/2 years I've been on the
7 other side, defending people who have been accused
8 of these types of offenses.
9 I do so in a private capacity for clients who
10 can afford representation.
11 And I do so, as I am a member of the
12 18B panel in several counties in the area, being
13 assigned indigent clients who cannot afford an
14 attorney, but have a conflict with either the public
15 defender's office or the conflict defender's office.
16 I also presently prosecute a number of cases
17 every year, when courts decide to assign me as a
18 special prosecutor when a district attorney's office
19 has a conflict of interest.
20 So I come to this statute, looking at it from
21 a different perspective, I believe.
22 And all I had heard about it, was that it is
23 terrible.
24 That prosecutors say, it's untenable.
25 That this can't be implemented.
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1 That if we do implement this new statute,
2 which is the law right now, and it is the
3 requirement to obey that law, that it will lead to
4 civilians being hurt.
5 So when I agreed to speak at this panel,
6 frankly, I hadn't even read the statute yet.
7 So I spent time yesterday immersing myself in
8 it. And what I realized is that, these concerns are
9 unfounded.
10 Article 245 is not the boogeyman that people
11 want to make it out to be.
12 Our system of justice is one where people are
13 presumed to be innocent.
14 Presumed to be innocent.
15 That should be more than lip service.
16 We've heard stories today about countless
17 people whose lives have been irreparably harmed by a
18 system that does not seek justice.
19 As a prosecutor, when I was in a DA's office,
20 and on the cases I handled as a special prosecutor,
21 including one I was in court on today, that is what
22 drove me: Justice.
23 Justice isn't just the result, it is the
24 process. And that process needs to be fair.
25 Senator, I don't know about you, but I would
289
1 not purchase a vehicle without taking it for a test
2 drive.
3 I would not buy a house without doing a
4 walk-through.
5 I would not send my child to college without
6 going to visit that institution.
7 But for some reason, we think it's is okay
8 and acceptable for people to make decisions in their
9 lives, that may send them to prison for a lengthy
10 period of time, separating them from their loved
11 ones, without getting to peek under the hood.
12 That is not right.
13 OFF-CAMERA SPEAKER: No, it's not.
14 SHANE HUG, ESQ.: I tend to disagree with
15 some of my colleagues on the defense bar that they
16 are not legitimate concerns.
17 I think there are some concerns from a
18 prosecutorial perspective about the implementation
19 of these laws.
20 There are concerns about an ability to do so,
21 especially in smaller counties, where district
22 attorneys' offices are extremely small and they may
23 not have the resources.
24 But not having the resources should not be
25 the reason that this is not implemented.
290
1 These things are not mutually exclusive.
2 If these things are as important as they are,
3 and I suggest to you they are, then we should be
4 funding these offices so they can comply with the
5 law.
6 That is not hard.
7 Are there legitimate concerns in some cases
8 about safety of witnesses? Yes.
9 Despite what some attorneys have come up here
10 and said, yes, there are.
11 As a prosecutor, I have had witnesses who
12 have been intimidated, who have been beaten as a
13 result of their cooperation with law enforcement and
14 myself.
15 But those are the exception to the rule.
16 And this statute has provisions in it, where
17 prosecutors can seek protective orders.
18 The law has envisioned these issues coming
19 up.
20 I think, rather than putting up our
21 roadblocks, like I did before even reading the
22 statute, everybody should actually read the law as
23 it's written, and see what it does as it levels the
24 playing field.
25 Even if a prosecutor today follows the law,
291
1 my client does not get to see the evidence against
2 him until after opening statements in a trial.
3 Think about that.
4 A defendant is asked whether or not to accept
5 a plea, sometimes before indictment, at which point
6 he's not even entitled to discovery, the little bit
7 of discovery that the statute presently envisions.
8 But, he doesn't get to see Rosario material,
9 the statements people have previously made, until
10 after opening statements have been made.
11 That's not fair.
12 OFF-CAMERA SPEAKER: No, it's not.
13 SHANE HUG, ESQ.: That's not right.
14 It does not put their attorneys in a position
15 to adequately represent them, especially when their
16 liberty is on the line.
17 I applaud the Senate, the Assembly, and the
18 Governor for enacting this legislation and signing
19 it in to law.
20 And I would be happy to answer any questions
21 that you have, Senator.
22 SENATOR BAILEY: Thank you very much for your
23 testimony.
24 ANDREW CORREIA, ESQ.: Thank you, Senator.
25 My name is Andy Correia. I'm the public
292
1 defender in Wayne County, New York, in
2 Western New York. It's just east of Rochester,
3 Monroe County.
4 We have about 94,000 people there. There's
5 no cities. It's all towns and villages. The
6 economy is agricultural.
7 We handle about 2,000 cases a year in my
8 office, just criminal.
9 I am not going to read from my statement.
10 I am going to focus on the thing that I think
11 maybe is unique about me in my attempt, probably
12 futile, to try to wrap up the testimony that you've
13 heard today.
14 I have been a lawyer in New York since 2001.
15 I was born in New York. I was raised in
16 New York. I went to college in the state university
17 system. I went to law school in New York City.
18 But the first three years of my practice were
19 in New Hampshire.
20 I joined the New Hampshire Public Defender
21 Office, a highly-regarded public-defense office.
22 In New Hampshire, they call themselves the
23 "Live Free or Die state."
24 New Hampshire has broad, open, and early
25 discovery.
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1 That's what I grew up on as a lawyer.
2 Police reports. Depositions of experts.
3 If a witness had given two conflicting
4 statements, you could make a motion for a deposition
5 of that witness.
6 Why?
7 Why?
8 Because, in New Hampshire, they allowed no
9 surprise at trial. None.
10 They knew it was unfair. It was the culture.
11 The judges knew it.
12 The "county attorneys," as they call DAs in
13 New Hampshire, they knew it.
14 Now, in that law, there were consequences for
15 defendants if witness tampering had occurred.
16 There were stand-alone statutes that could be
17 prosecuted.
18 My experience in New Hampshire, is that that
19 was no more frequent in New Hampshire than it ever
20 happens here in New York.
21 And as we all know, from this statute, there
22 are multiple ways that information and witnesses can
23 be protected.
24 Now, it's efficient, it's fair, it resolves
25 the cases that should be resolved, and provides a
294
1 fair battleground for the cases that have to be
2 fought.
3 When I came to New York in 2001, I was
4 shocked.
5 I had to learn an entirely new set of skills
6 to talk to a client about what they should do
7 without the information necessary to make that
8 decision.
9 It took me a while to get my mind around
10 that.
11 Thankfully, New York has moved on.
12 Now, in my small county, I've sat down and
13 I've talked to the district attorney, I've talked to
14 my IT department, I've talked to my county board;
15 they are all know this is coming.
16 In fact, I have a meeting tonight back in
17 Wayne County I'm going to be late for, with the
18 Magistrates' Association, all the town and village
19 judges, to talk about how this is going to be rolled
20 out in our county.
21 We are digging in in my county, not delaying,
22 because this is too important.
23 And I got to tell you, that what I've heard a
24 couple of times today, that this was somehow sprung
25 on people, my question is: Where have they been?
295
1 Because I've been here.
2 In 2005, I testified in front of the
3 K Commission, and specifically spoke about my
4 experiences, the difference between New Hampshire
5 discovery and New York discovery, and the
6 wrongfulness of it, and the shame of it.
7 There have been bar-task forces. There have
8 been years upon years of lobbying on this issue.
9 The proposal that has passed, has been
10 scrutinized, and has been gone over by all these
11 other states that do it.
12 That's just disingenuous.
13 Now, I just want to make a couple other
14 comments here about some things that I heard today.
15 The idea that the district attorneys may need
16 some financial support to roll this out.
17 I am not here to object to that.
18 I don't know if "$100 million" is the right
19 number. I have no way of knowing that.
20 But I will say, there's something that gets
21 overlooked, when you compare public-defender budgets
22 side by side with district attorney budgets, is that
23 the district attorney budgets are already
24 necessarily supported by multiple other law
25 enforcement budgets.
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1 Those investigators, that fleet of
2 investigators, that even in my small county, they
3 have access to, are the state police, are the
4 sheriffs, are the local police departments. They
5 have their own budgets, and they are available to
6 help the district attorney.
7 It's almost like a shadow budget that doesn't
8 really get considered.
9 We're comparing apples and oranges.
10 Now, if they need some assistance to roll
11 this out, okay. I wouldn't say no, it's that
12 important.
13 And I will also say, that I walked around in
14 this building with this folder, in the '90s, when
15 I was in law school, and the death penalty came back
16 to life, and we were arguing against it.
17 And it somehow passed, and the money was
18 somehow found, to fund that initiative to the tunes
19 of hundreds of millions of dollars.
20 It is not a question in my mind of political
21 will -- I'm sorry, it's not a question of the dollar
22 amount. It's the question of the political will to
23 get this done.
24 The very last thing I will say:
25 All of the other stated objections to this
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1 statute can be dealt with in its implementation; all
2 of them, without exception.
3 Those objections have, at their heart,
4 really, a reluctance to give up a systemic,
5 legislative, competitive advantage in this system
6 that should have never existed in the first place,
7 and it has no place in the system of justice.
8 So rather than delaying and undermining and
9 obfuscating, I'm suggesting, that we get to work on
10 the new age of justice in the state of New York.
11 Thank you.
12 SENATOR BAILEY: I want to thank you,
13 gentlemen, for your testimony.
14 I have a couple of comments, and -- and --
15 and, actually, I do have a question for -- for the
16 panel, and it was something that I had wanted to ask
17 the prior panel, but I kind got lost in my notes up
18 here.
19 As an attorney, you know, you -- you -- you
20 hear certain things from certain people about
21 attorneys.
22 There are lots of jokes made about attorneys,
23 and sometimes there's a general distrust in
24 attorneys.
25 And I've heard conversations that -- that
298
1 have happened with people who have been convicted,
2 whether rightfully or wrongfully.
3 And they've said:
4 The attorney didn't tell me anything.
5 The attorney, they didn't let me know
6 anything.
7 They didn't -- they weren't -- they weren't a
8 good attorney because they didn't tell me anything
9 that they were facing -- that I was facing.
10 And, through any journey through law school,
11 and the Legislature, I've been able to instruct more
12 people that, I don't know the specific case that
13 you're in.
14 And -- and -- and I'm adverse to speaking on
15 these hypotheticals that we all faced in
16 (indiscernible) -- in law school.
17 I don't like hypos because real life is,
18 everything is predicated upon context.
19 But I would be willing to say that, often,
20 when these individuals have faced this lack of trust
21 in attorneys, it's probably predicated upon this
22 discovery statute.
23 As attorneys defending individuals, have you
24 seen that there is a general distrust for attorneys,
25 based upon the un -- the lack of availability of the
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1 discovery information in the statute?
2 ARTHUR FROST, ESQ.: Unquestionably.
3 Unquestionably, Senator.
4 Part of the problem is the public defense
5 system to be begin with, because those individuals
6 didn't choose us to represent them.
7 So, we're already starting from a
8 disadvantage.
9 And then when I walk in --
10 Andy, Shane, George, you can probably say the
11 same.
12 -- when I walk in and I have an empty file,
13 and I say, Here's your offer, or you're going to the
14 grand jury tomorrow, why should they trust me?
15 How many times -- I've heard, and I'm sure
16 you guys have heard: You're working for them.
17 You're just trying to put me in prison.
18 That's the last thing I want. That's not my
19 job.
20 My job is to do everything I can, within the
21 bounds of the law, to ethically defend this person.
22 It's the prosecutor who has a job to see to
23 it that justice is done.
24 I don't have that obligation.
25 My obligation is to prevent a conviction at
300
1 all costs if I can, or to mitigate the damages if
2 I can't.
3 But if I don't have the tools to do the job,
4 how can I possibly do it, and how I can ask them to
5 trust me?
6 Would you trust a contractor who came to your
7 house and asked to borrow a saw?
8 [Laughter.]
9 SENATOR BAILEY: The answer -- I'll answer
10 that: No.
11 And I think that you -- you mentioned the
12 analogies about the -- the "under the hood."
13 And -- and everything that we do is based
14 upon some sort of review process. Right?
15 If my wife and I go to eat, like, we Yelp the
16 restaurant. Right?
17 Like, we look at -- we look at, with schools.
18 Right?
19 Like, what -- and so I don't know how anybody
20 is permitted, or should be expected, to make a
21 decision that involves the rest of their lives.
22 And for -- forgetting about the times spent
23 in incarceration, even though you can't forget that,
24 what follows you, post conviction, is a series of
25 other trials and tribulations.
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1 The inability to be able to get employment.
2 The inability to be able to live somewhere.
3 The inability to be able to apply for
4 financial aid.
5 These are all things that -- that can be born
6 out of the failure, or lack of will, for an
7 individual to simply hand over information to
8 somebody that is accused of something.
9 I have children. And before I -- before
10 I decide to punish them for anything that they've
11 done, I like to ask them: Did you do this?
12 It would be wrong of me, as a father, to
13 punish my children unilaterally, and saying, The
14 milk spilled. Because the milk spilled, one of you
15 did it. You're in trouble.
16 They might not have been in the room.
17 They might not even have been in the house.
18 But I can just go and say, You're in trouble
19 because the milk spilled.
20 And that's the kind of -- sometimes, and
21 I want to be clear, sometimes, because, again -- and
22 I want to make sure, that, by and large, I believe
23 that prosecutors do an honorable job.
24 I will always believe that prosectors do an
25 honorable job, and, by the large, I think they do
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1 the right thing.
2 But, in those instances where -- you saw with
3 Mr. Bozella, where they don't, what happens?
4 The time spent is far worse than the money
5 that -- that we'll -- that we'll spend.
6 Gentlemen, I want to thank you for your time
7 and attention to this matter, for your compelling
8 testimony, and for your dedication to people, not
9 just defense or prosecution.
10 Thank you, gentlemen.
11 OFF-CAMERA SPEAKER: Thank you, Senator.
12 OFF-CAMERA SPEAKER: Thank you, Senator.
13 SENATOR BAILEY: So, as we come to conclusion
14 of this hearing, I would like to thank my colleagues
15 for attending: Senators Daphne Jordan, Tom O'Mara,
16 and Sue Serino;
17 My staff: Jason Laidley, Noel Mendez,
18 Jackie Jenkins-Cox, Rachel Arnaud,
19 Kim Bernstein (ph.);
20 Central staff: Donavan Borington,
21 Dorothy Powell, and Angelica Martinez;
22 Conference services, and media services, and
23 photography;
24 And most importantly, all of you individuals
25 who came to testify, on the defense side, on the
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1 prosecution side, the -- the -- the formerly
2 incarcerated, community members; thank you all
3 for -- for -- for doing this, and I appreciate your
4 time.
5 Thank you.
6 (Multiple audience members say
7 "Thank you.")
8 (Whereupon, the public hearing concluded,
9 and adjourned.)
10
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