ABKLaw IN THE NEWS: HON. BARRY KAMINS (Ret.) New York Law Journal / Law.com: “Annual Review of New Criminal Justice Legislation”
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#ABKLaw IN THE NEWS: HON. BARRY KAMINS (RET.) New York Law Journal / Law.com: Annual Review of New Criminal Justice Legislation
In his Criminal Law and Procedure column, Barry Kamins reviews new legislation amending the Penal Law, Criminal Procedure Law and related statutes.
This column reviews new legislation amending the Penal Law, Criminal Procedure Law and related statutes. The discussion that follows will highlight key provisions of the new laws and, as such, the reader should review the legislation for specific details. In some instances, where indicated, legislation enacted by both houses is awaiting the governor’s signature and, of course, the reader should check to determine whether the governor has signed or vetoed the bill. There might be a delay in the signing of some bills because a new governor has been sworn into office.
Substantive Legislation
Among the many bills enacted by the Legislature in the last session, there were three substantive pieces of legislation. The first was the Marihuana Regulation and Taxation Act (MRTA) that was enacted on March 31 (Ch. 92, eff. March 31, 2021). As previously reported in this column (The New Marihuana Law: Some Burning Issues, 5/28/21) New York has joined 14 other states in which the recreational use of small amounts of cannabis has been legalized. The new law enacts changes in criminal penalties for cannabis; provides automatic expungement and sealing of certain convictions; and will have an impact on searches of automobiles and impaired driving cases.
A second substantive bill contains a number of amendments that will change the structure and function of the Commission on Prosecutorial Conduct. The statute creating the commission was first enacted in 2018 but amendments to the law were enacted in 2019 based, in part, on comments submitted by the Office of the New York Attorney General.
Subsequently, however, the statute was held to be unconstitutional in that it vested Appellate Division judges with certain authority that is not authorized by the New York State Constitution. Soares v. State of New York, 68 Misc. 3d 249 (Sup. Ct. Albany County 2020). As a result, this year the Legislature has enacted amendments to address those challenges.
The third iteration of the commission (Ch. 153, eff. 6/17/21), narrows the commission’s function. It now will serve as a fact-finding entity that will merely assist attorney grievance committees by reviewing complaints of prosecutorial misconduct and producing a factual record and recommendations. Those recommendations will then be transmitted to the various attorney grievance committees which can then accept or reject a recommended sanction; impose a different sanction; or impose no sanction.
It remains to be seen whether this latest version of the commission will improve its ability to address prosecutorial misconduct. It should be noted that the District Attorney’s Association of the state of New York urged former Governor Andrew Cuomo not to sign the legislation for a number of reasons.
In a letter to the governor, on June 14, 2021, the association president noted that the latest iteration of the commission would delay the discipline of those prosecutors who act improperly: “Rather than ensure the swift investigation of ethical violations resulting in public discipline for an offender, the commission’s initial investigation, followed by a referral and a second, then constitutionally required investigation by the existing grievance structure, will only delay the discipline of those who offend” (emphasis added).
The third substantive piece of legislation that was enacted in the last session will have a significant impact on New York’s parole system. With the exception of Illinois, New York re-incarcerates more people on parole for technical violations (e.g., missing an appointment with a parole office, testing positive for alcohol) than any state in the country.
The new legislation, known as the Less is More Act, will make a number of significant changes: (1) limit the types of technical parole violations for which incarceration will be permitted; (2) limit the length of incarceration for technical parole violations; and (3) provide a hearing in court before a parolee can be detained in jail pending adjudication of a non-technical parole violation.
Finally, in order to accelerate a person’s discharge from parole, or post release supervision, the new law provides for “earned time credits.” Under this provision, when an individual on parole completes 30 days of parole without any violations, the parolee earns 30 days off his parole time. Thus, for example, if a parolee is subject to two years of post-release supervision, and does not get into any difficulty after one year, he/she will then have completed the supervision. (Ch. 427, eff. March 1, 2022).
Substantive Legislation
Among the many bills enacted by the Legislature in the last session, there were three substantive pieces of legislation. The first was the Marihuana Regulation and Taxation Act (MRTA) that was enacted on March 31 (Ch. 92, eff. March 31, 2021). As previously reported in this column (The New Marihuana Law: Some Burning Issues, 5/28/21) New York has joined 14 other states in which the recreational use of small amounts of cannabis has been legalized. The new law enacts changes in criminal penalties for cannabis; provides automatic expungement and sealing of certain convictions; and will have an impact on searches of automobiles and impaired driving cases.
A second substantive bill contains a number of amendments that will change the structure and function of the Commission on Prosecutorial Conduct. The statute creating the commission was first enacted in 2018 but amendments to the law were enacted in 2019 based, in part, on comments submitted by the Office of the New York Attorney General.
Subsequently, however, the statute was held to be unconstitutional in that it vested Appellate Division judges with certain authority that is not authorized by the New York State Constitution. Soares v. State of New York, 68 Misc. 3d 249 (Sup. Ct. Albany County 2020). As a result, this year the Legislature has enacted amendments to address those challenges.
The third iteration of the commission (Ch. 153, eff. 6/17/21), narrows the commission’s function. It now will serve as a fact-finding entity that will merely assist attorney grievance committees by reviewing complaints of prosecutorial misconduct and producing a factual record and recommendations. Those recommendations will then be transmitted to the various attorney grievance committees which can then accept or reject a recommended sanction; impose a different sanction; or impose no sanction.
It remains to be seen whether this latest version of the commission will improve its ability to address prosecutorial misconduct. It should be noted that the District Attorney’s Association of the state of New York urged former Governor Andrew Cuomo not to sign the legislation for a number of reasons.
In a letter to the governor, on June 14, 2021, the association president noted that the latest iteration of the commission would delay the discipline of those prosecutors who act improperly: “Rather than ensure the swift investigation of ethical violations resulting in public discipline for an offender, the commission’s initial investigation, followed by a referral and a second, then constitutionally required investigation by the existing grievance structure, will only delay the discipline of those who offend” (emphasis added).
The third substantive piece of legislation that was enacted in the last session will have a significant impact on New York’s parole system. With the exception of Illinois, New York re-incarcerates more people on parole for technical violations (e.g., missing an appointment with a parole office, testing positive for alcohol) than any state in the country.
The new legislation, known as the Less is More Act, will make a number of significant changes: (1) limit the types of technical parole violations for which incarceration will be permitted; (2) limit the length of incarceration for technical parole violations; and (3) provide a hearing in court before a parolee can be detained in jail pending adjudication of a non-technical parole violation.
Finally, in order to accelerate a person’s discharge from parole, or post release supervision, the new law provides for “earned time credits.” Under this provision, when an individual on parole completes 30 days of parole without any violations, the parolee earns 30 days off his parole time. Thus, for example, if a parolee is subject to two years of post-release supervision, and does not get into any difficulty after one year, he/she will then have completed the supervision. (Ch. 427, eff. March 1, 2022).
Other Legislation
In other legislation one new crime was enacted in the last session, i.e., Criminal Sale of an Unfinished Frame or Receiver (S 13-A, awaiting the governor’s signature). Unfinished receivers, also called “lowers’ or “blanks,” are used to form the lower part of a firearm. By drilling holes in an unfinished receiver, and combining it with other necessary pieces, an individual can assemble an operational semi-automatic firearm in a short period of time. These weapons are not traceable, as they can be made at home without any serial numbers.
The new crime is both a class D and E felony. The second degree crime, a class E felony, criminalizes the sale of up to nine unfinished receivers, while the sale of 10 or more unfinished receivers in less than one year constitutes a class D felony. A person who possesses an unfinished receiver is guilty of a class A misdemeanor. Individuals can avoid prosecution for any of the above crimes, however, if, within six months after the effective date of the legislation, an individual either surrenders the unfinished frames to law enforcement, or gives or sells them to a licensed gunsmith.
Definitions of Existing Crimes
Each year the Legislature expands the definition of existing crimes and this year was no exception; in the last session this happened most frequently with weapon-related crimes. For example, one bill makes it a misdemeanor to possess a weapon if a person is subject to a temporary or final extreme risk protection order, or if a person is prohibited from possessing a weapon pursuant to 18 U.S.C. 922(g). That section lists nine predicates for the unlawful possession of a weapon including one in which an individual is a “fugitive from justice,” and one in which an individual has been convicted of a misdemeanor for the crime of domestic violence (S 13-A, awaiting the governor’s signature).
In other weapons-related legislation, it is now a class D felony to purchase a firearm when a person has an outstanding bench warrant (Ch. 236, eff. July 6, 2021), or to manufacture a weapon that is designed to appear to be a toy gun (A. 6522, awaiting the signature of the governor).
The crimes of Extortion and Coercion now include a threat to bring deportation proceedings, and instilling a fear that a person’s immigration status will be reported (S. 343-A, awaiting the governor’s signature). The crime of coercion can now also be committed by forcing an individual to produce or share images depicting nudity or sexual conduct (S. 2986, awaiting the governor’s signature).
Finally, the crime of Criminal Impersonation now includes using another person’s electronic signature (A 6015, awaiting the governor’s signature).
Repealed Crimes
Two crimes have been repealed by the Legislature. First, Loitering for the Purpose of Engaging in a Prostitution Offense, a class A misdemeanor was repealed (Ch. 23, eff. 2/2/21). The Legislature’s action was based on its recognition that the law was no longer necessary or relevant, and that its vagueness had led to arbitrary and discriminatory enforcement against women, particularly transgender women of color who had previously been arrested for prostitution offenses. Many of these women had been unlawfully targeted by the police during “sweeps” or “operations” where officers arrest large numbers of woman in a given area at the same time.
The Legislature also repealed Criminally Possessing a Hypodermic Instrument, a class A Misdemeanor (A 868, awaiting the Governor’s signature). The decriminalization of hypodermic needles strengthens and expands syringe access by allowing pharmacies and healthcare agencies to provide syringes without a cap. This will prove highly effective in helping to reduce the rate of HIV and hepatitis transmissions.
Procedural Amendments
A number of procedural changes were enacted in the last legislative session. One of the more significant bills provides a jury trial in New York City to a defendant charged with any level of misdemeanor (A 4319, awaiting the governor’s signature). Previously, a jury trial had been granted to anyone charged with any misdemeanor outside New York City or a noncitizen in New York City charged with an A, B or unclassified misdemeanor (see People v. Suazo, 32 N.Y.3d 491 (2018)).
Two new procedural changes will assist appellate counsel. First the Legislature has made it possible for ineffective assistance claims to be filed collaterally, i.e., by a CPL 440 motion, without running into several procedural bars that had previously existed. Under CPL 440.10(2), a defendant was prohibited from collaterally raising an ineffective assistance claim that potentially fell within the narrow class of directly appealable ineffectiveness claims. Those procedural bars have now been removed (A 2653, awaiting the governor’s signature). A second bill streamlines the assignment of appellate counsel for indigent defendants in criminal cases (A 5689, awaiting the governor’s signature).
The Legislature has afforded those defendants who were not granted youthful offender status, a second chance to receive that benefit. Under the bill, a person who was initially denied youthful offender treatment, and who has not been convicted of a crime for at least five years since his sentence, would have the opportunity to apply to the sentencing court for a new determination (A 6789, awaiting the governor’s signature).
A number of procedural amendments will have an impact on certain classes of defendants: adolescent offenders; veterans; substance abusers; and victims of sex trafficking. Regarding adolescent offenders, one measure clarifies that where a misdemeanor plea is taken in Supreme Court by an adolescent offender, the matter must be removed to the Family Court for disposition.
In removing an adolescent offender to Family Court, where the offender is statutorily eligible for diversion (adjustment), the Youth Part judge must direct the youth to the intake office of the local probation department for an assessment of adjustment suitability without an actual Family Court juvenile delinquency case being commenced (A 7713, awaiting the governor’s signature).
Judicial diversion has now been expanded to include individuals who commit certain non-violent crimes, e.g., auto stripping and identity theft, to support their use of substances. The term “substance abuse disorder” has been changed to “substance use disorder” to conform to terminology in the current Diagnostic and Statistical Manual of Mental Disorder (DSM-5) (A 5511-A, awaiting the governor’s signature).
Veteran Treatment Courts
The Legislature has also broadened the availability of veteran treatment courts by authorizing the transfer of a criminal case against a veteran where the charges are pending in criminal court in a county that does not have a veterans treatment court, to a veterans court in an adjoining county (A 5719-A, awaiting the governor’s signature).
Sex Trafficking Defendants
Defendants who are, or have been, victims of sex trafficking have been given several benefits under new legislative measures. First, defendants in this category who have been convicted of certain crimes will not be required to provide DNA samples to be included in the state DNA identification database. This includes a person convicted of prostitution or a person whose participation in an offense the court determines was a result of having been a sex trafficking victim under federal or New York law (A 118-B, awaiting the governor’s signature).
Second, victims of sex trafficking who have been convicted of crimes other than prostitution-related offenses can now move to vacate the conviction. Thus, those convicted of any offenses related to trafficking can seek relief; any such motions are also deemed confidential and are not available to the public (A 459, awaiting the Governor’s signature).
Additional Procedural Changes
Other procedural changes will affect public defenders, and assigned counsel as well as Supreme Court judges. Under a new measure, public defenders will have the same access to criminal history records as prosecutors and judges (A 7729, awaiting the governor’s signature). The Legislature has also mandated that a Supreme Court judge must be certificated for an additional two year term as long as he or she has the mental and physical capacity to perform the duties of that position. Thus, the Administrative Board’s discretion to deny certification has been diminished. (A 6044, awaiting the governor’s signature).
Laws Impacting Prisoners
A number of new laws will have an impact on prisoners. One such measure automatically restores voting rights to a person upon release from custody. Under prior law, a prisoner had to wait until the underlying maximum sentence had expired or until formal community supervision ended before being able to vote. It should be noted that, under this new law, before a court can accept a guilty plea where a prison sentence will be imposed, the court must advise the defendant, on the record, that a conviction will result in a loss of the right to vote while the defendant remains in custody. (Ch. 103, eff. 9/2/21).
Another new law that will have an impact on prisoners is the “Humane Alternative to Long-Term Solitary Confinement Act” (Ch. 93, 3ff. 3/31/22). Under this measure, inmates cannot be placed in segregated confinement for more than 15 consecutive days or 20 days within any 60-day period. In addition, the legislation prohibits segregated confinement for people age 21 or younger; those who are age 55 or older; or inmates who are pregnant. The legislation also provides for more humane and effective alternatives to segregated confinement.
Victims of Crimes
Finally, victims of crimes will benefit from several new laws. Under one measure, the Department of Corrections and Community Supervision can now notify a crime victim electronically when his or her assailant is paroled, conditionally released or released from confinement (Ch. 210, eff. 7/31/21).
Victims of domestic violence will specifically benefit from two new measures. First, the Legislature has created a domestic violence advocate-victim privilege, similar to the rape crisis counselor-victim privilege. As a result, advocates shall not be required to disclose confidential communication made by a domestic violence victim, except where the communications reveal an intent to commit a crime or the privilege is waived by the victim (S 1789 awaiting the governor’s signature).
Victims of domestic violence can also have their voting records kept confidential by filing an affidavit with the Board of Elections attesting to the fact that, because of the threat of harm, they wish their registration record (which contains their place of residence) to remain confidential (A 465-A, awaiting the governor’s signature).
Barry Kamins, a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis 2020), is a former New York Supreme Court Judge.