The dismissal rates of misdeamanors increased to 82% in 2021 as opposed to 49% in 2019.

I obviously don't keep my own statistics as that's not my job, but it's in line with my experience as a practicing criminal law attorney.

https://www.manhattan-institute.org/how-new-york-discovery-law-destabilizes-criminal-justice-system#:~:text=Proportion%20of%20All%20Dispositions%20by,a%20whopping%2082%25%20in%202021.

The article references only DWI felonies.

Dismissals are at 15% this year, as opposed to the pre reform rate of 6%, which is a 250% increase in the rate of dismissals.

It would be interesting to review the % of misdeamanor cases, which based on my experience (but zero data) would be likely much higher.

Nobody here currently working in civil service is advocating for "hiding" evidence as a solution.

Many in this field view the idea and intent of discovery reforms as much needed. However, what I have identified is a serious and legitimate issue with the reforms. Let me paste this from an earlier comment:

99/100 a prosecutor receives all of the paperwork that they need to actually be able to prosecute the case from the NYPD, that's not an issue.

There are numerous factors and variables at play that lead to absurdly high dismissal rates. First, prosecutors don't only acquire need to acquire all of the discovery material..There aren't enough prosecutors to review hundreds of hours of police body cam footage, police and paperwork and redact witness home addresses so they are protected.

Just look at the Bronx DA walkout. You would need to hire about 5X the amount of prosecutors in each borough to be able to get through all of the paperwork and that's not feasible. The new proposed executive budget bill barely allocates any more funds for discovery. This work can't be pawned off on paralegals either, because each prosecutor must do this themselves on each and every case, because they need to "certify", by law, that they have exercised due diligence in seeking out any and all discovery material.

Second, what is "all paperwork/discovery relating to an arrest"? This opens the door to an infinite number of arguments. Do weather reports count? How about the names and contact information of 20+ unidentified passerbys who are impossible to get because of how populous NYC is? And these people aren't being called in to testify either.

Regardless, because a random person may or may not have seen something, then it's a question of is it discoverable? If a Judge rules that it is, the case is automatically tossed, and this is after 20+ hours were already put into the case and thousands of files and all video files known to exist have been turned over. These are just some of the issues and it's a non-exhaustive list, the reforms create an endless rabbit hole which leads to an inordinate rate of dismissals.

Esco pharmacy in Hell's Kitchen is one location, there are many others too.

The re-arrest rate of petit larcenists, who rack up numerous cases, is more than enough to skew the entire study.

Attorney practicing criminal law: Non-bail eligible offenses, meaning the prosecutor can't ask for bail and the judge can't legally set bail for the following offenses, which is a non-exhaustive list:

Public Lewdness

Stalking

Criminal contempt 2nd degree (violating an order of protection)

Assault 3rd degree

Child endangerment

DWI non felony (no prior DWI Convictions)

Forcible Touching

Petit Larcenies

Unlawful imprisonment

Menacing 2nd degree

CPW 4th degree

Attorney practicing criminal law and familiar with NY's OCA's "Office of Court Administration" data reporting.

This report acknowledges pulling all of their data from NY's OCA. My critique is as follows:

OCA admits to being unable to track recidivists in terms of rearrest. In their data set, if a defendant is rearrested 1x it counts as 1 arrest. BUT, importantly, if a defendant is rearrested 100x, it still only counts as 1 arrest. It is impossible for this dataset to paint an actual picture of recidivists who commit multiple crimes as it only counts them as 1 rearrest.

Overall, it paints an incomplete and misleading picture of bail reform, which cannot be divorced from the incomplete data provided by OCA.

For the most part, we're all regular new yorkers who live in the neighborhood and want community safety, willing to put in at least 12 hours a day despite receiving no overtime to process all the documents and videos we have.

My hope is that enough individuals let their legislative representatives know that we need change and tweaks in the right direction, because this affects us and our friends and family.

Hey,

Thanks for taking the time to read my wall of text comment.

I agree with each part of the legislative intent - and the baby should not be thrown out with the bath water here. The Reforms were badly needed in 2019. Defendants are absolutely entitled to each and every relevant piece of information that is helpful to their case. It's the enforcement mechanisms tied into the matter - such as having the entire case dismissed - because the statutory speedy trial deadline passes amongst other issues.

Hey,

I completely understand where you are coming from and thank you for listening.

Your experience is exactly why reform was desperately needed in 2019, with the tragedy of Kalief Browder's case demonstrating that the "blind fold" law that NY previously had in terms of discovery needed to be completely overhauled.

I agree with each and every principal of the legislative intent behind enacting the changes. My critique from working in the field is that their built in enforcement mechanisms, aka having discovery tied into the speedy trial statutes, essentially doesn't work for the reasons I mentioned, putting victims in further harms way.

I might make a whole separate post for bail and discovery for non-practioners if there's interest.

It's not just a "system", there is already an electronic discovery system in place that gets the documents and various other discovery, surveillance, lab reports, video metadata, intoxilyzer/PBT calibrations etc etc. 99/100 a prosecutor receives all of the paperwork that they need to actually be able to prosecute the case, that's not an issue.

There are numerous factors and variables at play that lead to absurdly high dismissal rates. First, prosecutors don't only acquire need to acquire all of the discovery material..There aren't enough prosecutors to review hundreds of hours of police body cam footage, police and paperwork and redact witness home addresses so they are protected. Just look at the Bronx DA walkout. You would need to hire about 5X the amount of prosecutors in each borough to be able to get through all of the paperwork and that's not feasible. The new executive budget bill barely allocates any more funds for discovery. This work can't be pawned off on paralegals either, because each prosecutor must do this themselves on each and every case. Second, what is "all paperwork/discovery relating to an arrest"? This opens the door to an infinite number of arguments. Do weather reports count? How about the names and contact information of 20+ unidentified passerbys who are impossible to get because of how populous NYC is? And these people aren't being called in to testify either. Regardless, because a random person may or may not have seen something, then it's a question of is it discoverable? If a Judge rules that it is, the case is automatically tossed, and this is after 20+ hours were already put into the case and thousands of files and all video files known to exist have been turned over. These are just some of the issues and it's a non-exhaustive list, the reforms create an endless rabbit hole which leads to an inordinate rate of dismissals.

Hey Frenchie,

Defendants are entitled to a fair trial and to any and all evidence that exculpatory. But the reforms lump in every single irrelevant piece of paper that must be provided within the statutory period. I agree with you. It's extremely frustrating having to console a victims and tell them that there is nothing that I can do because it's the law. And I am worried about their safety because their abusers and assailants are still out there.

A justice system where you don't reach the merits of a case isn't functional. It will lead to vigilante violence.

Hey LikesBallsDeep,

I practice in the field. The main cause of dismissals is CPL Article 245, the sheer volume of irrelevant paperwork is impossible to receive before the statutory deadline on each and every case. "Discovery" occurs after the defendant is arrested, charged and formally arraigned before a Judge. 245 stipulates that everything that is "discoverable" must be provided within 90 days for misdeamanors and 6 months for felonies, with zero extensions allowed by law. Meaning most cases are usually dismissed without getting to the merits aka without ever going to trial.

Because discovery stops the prosecutors from getting to the trial phase, victims never get to testify, and perpetrators have all charges against that dismissed and sealed, meaning that it's like they never did the crime to begin with.

As an attorney that practices in this field, it sounds reasonable at first right? The reality is that it's impossible to do this on every single case when you have 130+ cases and the turn around is 90 days on misdeamanors. If you're past 90 days the case is dismissed by law regardless of the merits. Meaning even if you have a cooperative victim, the defendant is caught on video, and he admits to doing it, the law states that the case must be dismissed.

Generally what's missing when a case is dismissed? Let's talk about a domestic violence assault case. It's not the paperwork work that you need like an arrest report surveillance notes, or even anything that's remotely helpful to the defense etc case. You have all of the responding and arresting officers information, reports and body camera already.

It's generally paperwork like 20th cop that arrived at the scene that didn't see anything and didn't arrest anyone yet you need his automatically generated memo book with the only entry being the time he began his shift.

If you don't have that, the case is dismissed, the order of protection is dismissed and the abuser is free to contact and abuse their victim again and the cycle of domestic violence continues.