With New York State’s sweeping criminal justice reform law about to go into effect, the chief of the East Hampton Town Police Department and an assistant town attorney briefed the town board about impacts they predicted would be commensurately broad. The briefing prompted Supervisor Peter Van Scoyoc to warn that one casualty could be the town’s ability to remain below the 2-percent property tax cap.
The state passed the bill on April 1; it takes effect on Jan. 1. Among its reforms is an overhaul of the discovery process, during which prosecutors reveal and turn over to the opposing side the evidence they have gathered.
In partnership with The New York Times, the Marshall Project, a nonprofit news organization covering the U.S. criminal justice system, reported in 2017 that New York’s rules are among the most restrictive in the United States, allowing prosecutors to withhold such information until just before trial, forcing defendants to accept plea deals or go to trial without knowing the evidence in their cases. One consequence, according to the Legal Aid Society, is that New York ranks third in the nation in wrongful convictions.
Under the reform law, defense attorneys do not have to file requests for discovery. Rather, information including police reports must be turned over within 15 days of an arraignment. The defense must also turn over some evidence to the prosecution.
The new discovery rules will be burdensome for police departments, Chief Michael Sarlo told the town board on Tuesday. One cost, he said, was “an additional hour or two of work by each officer on every arrest, and we average about 800 arrests a year. That’s an initial, immediate cost in personnel, to complete paperwork and be off the road.” The requirement to present evidentiary discovery within 15 days of filing a charge “is going to cause us an unknown impact with creating files and databases, and sharing with defense and district attorneys, for all electronic paperwork discovery,” he said.
The reform measures were passed with no funding allocation to municipalities, the chief said, but the district attorney’s offices in both Suffolk and Nassau Counties had no choice but to add personnel and establish a 24-hours-a-day, seven-days-a-week intake bureau to review new cases and paperwork as they are filed.
The new rule of discovery sets 21 kinds of materials that prosecutors must turn over to the defense, Chief Sarlo told the board. “This includes witnesses, victims, full information. There’s a grave concern, and we really don’t know what impact this is going to have.” Those reporting a crime “are now going to have the risk of their full identity and all the information that they provide to us released immediately, before charges are even disposed of or answered to in court,” he said.
“I would think that would have a chilling effect,” the supervisor commented. It could deter people from reporting a crime, the chief agreed, “which is one of our main concerns. It could also put people at risk should charges be dropped and we failed to meet the statutory requirements, and they were exposed for no reason.” (Prosecutors can request a protective order from a judge, allowing for the withholding of witness information if they have reason to believe a witness may be harassed or intimidated by a defendant.)
As of New Year’s Day, “the issuance of an appearance ticket will become mandatory in certain circumstances and may no longer be conditioned upon posting station-house bail,” the chief said. Under current guidelines, an arrestee is released with an appearance date three to four weeks later, “and we don’t have a statutory time limits requirement to get that paperwork in if it’s a misdemeanor or low-level offense. Now, every single offense has to be filed with the court within 24 hours. Those have to go through the district attorney’s office for clearance . . . or it’s tossed,” he said, referring to dismissal.
The reform is a “very well intended and important piece of the criminal justice system,” Chief Sarlo allowed, but “the timeliness and the ability to share it accurately, and the compromising of cases, is going to be challenging.”
The department is spending the last weeks of the year “taking certain cases and working with the district attorney’s office to go through intake, to go through discovery” on a trial basis, he said. “It does take several hours extra to make sure everything’s turned over, that people are ready. We are concerned about how the volume of work at justice court is going to get backed up.” Summonses for code violations and vehicle and traffic tickets account for much of the department’s efforts, he said, worrying aloud about its ability to process those cases in a timely manner and how compliance might wane if it could not.
East End police departments may soon adopt the same records management system as the county police, Chief Sarlo said, which would streamline workflow. Training civilian staff to handle some of the added workload would also help, he said. “We’re in a feeling-out stage to see how it goes, how much it impacts us . . . and how we go about managing it.”
Councilman Jeff Bragman, who formerly worked in the Manhattan District Attorney’s office, said that discovery reform is “more likely to produce justice and less likely to produce wrongful convictions,” though he appreciated the challenges the police department faces. “Hopefully, with your capable skills of administration . . . you’ll get it going as a system,” he told the chief.
But Mr. Van Scoyoc saw little upside, calling the reform package “a prime example of poorly drafted and considered legislation that was pushed through without any involvement from anyone.” Neither law enforcement nor municipalities were consulted as to the impacts, which “are enormous,” he said. “I wouldn’t doubt that this could endanger us staying underneath the 2-percent tax cap in order to meet additional resources.” Losing so much policing to paperwork is bad enough, he said, “and if we fail in meeting these requirements, those who might be guilty will simply go free because of a failure to meet the requirements.”
“We’re concerned that we may lose some solid cases based on some minor technicalities,” Chief Sarlo agreed. Another concern is that “if a lot of vehicle and traffic law charges start getting thrown out, there’s less of an incentive to follow the law.”
The town board might consider revising the online form for reporting complaints, which presently requires respondents to disclose their name, telephone number, and email address, David McMaster, an assistant town attorney, suggested. The form is used for code enforcement issues including noise and excessive turnover in residences. Complainants wishing to remain anonymous often mail a letter to the town, he said, a slower and more laborious process than the online form.
The reform law also came under fire at the East Hampton Village Board’s Dec. 5 meeting. There, Mayor Paul F. Rickenbach Jr., a former police officer, called it “an unfunded mandate that was pretty much pushed through the legislative budget process . . . under the cover of darkness.”
The village board has contacted Assemblyman Fred W. Thiele Jr. and State Senator Kenneth P. LaValle, the mayor said, “and the State Legislature is going to have to come up with some mechanisms to assist in funding because, for example, in the City of New York the projection by the former police commissioner was that it was going to cost an additional $100 million to take care of the requirements.”
“A lot of this law seems like they did it off the cuff,” Mr. McMaster said Tuesday of state lawmakers, but “we’re prepared to comply with it.” With Reporting by Jamie Bufalino
