#ABKLaw BLOG by Michael Jaccarino:  Discovery Reform Demands Defendant’s Receive Immediate Discovery…But What If The Prosecutor Attempts to Withhold It?

New York State replaced its discovery law in January 2020 with a new statute requiring the sharing of evidence between the prosecution and defense on an accelerated timeline. The statute has since been amended twice—in April 2020 and April 2022.  By facilitating a defendant’s ability to prepare a defense, the reform could result in fewer prison or jail sentences.

Much of the opposition to the reform has focused on the burdens imposed on district attorney’s offices. Sharing more information requires more effort; given New York’s history of withholding information from defendants or disclosing it only on the eve of a trial, the review concludes discovery reform is a step forward for fairness and the legitimacy of the court process.  In many cases, particularly when a defendant is charged with a serious or violent offense, prosecutors attempt to withhold discovery from the defendant, and in many cases, even the defendant’s attorneys.  They do this by applying for what is called a Protective Order.  Often, these applications to the judge are made ex parte, which means the defense attorney is not present and has no knowledge of what the application is based on.  This seems unfair, and not in line with the spirit of the legislature’s intent when passing the sweeping discovery reforms.  So, what can be done?

First, the defense can demand a hearing.  CPL Section 245.70(3) provides that “[u]pon request for a protective order, unless the defendant voluntarily consents to the people’s request for a protective order, the court shall conduct an appropriate hearing within three business days to determine whether good cause has been shown.”  Next, although the statute recognizes that in some cases defense counsel will not be made aware of such an application by the People, it also recognizes the importance of parties and the court taking available measures to attempt to resolve discovery disputes and reach a reasonable accommodation.  If a deal cannot be made, there are several factors that judges are required to consider when evaluating whether good cause exists to restrict disclosure of discovery. Experienced criminal defense lawyers should analyze these factors and make arguments regarding how they apply, or do not apply, to the specific case.

Also, should the trial court not grant us the discovery, there is a new procedure by which this decision can be appealed to a higher court….immediately!

CPL § 245.70(6) is a provision of the new discovery reforms that provides for expedited appellate review, during the ongoing proceedings, to the aggrieved party (generally the defendant, but it could be the People if their request is denied) of a court’s unfavorable decision concerning a protective order. Meaning, if the lower court granted a protective order over the defense attorney’s objection, this provision allows the defendant to seek immediate review of the decision.  The procedure is complicated and strict, so it is wise to seek a defense attorney who is experienced in this area, such as the criminal defense lawyers at Aidala, Bertuna & Kamins, when defending one’s case. 

Michael Jaccarino, and the criminal defense attorneys at Aidala, Bertuna & Kamins, PC, have decades of experience. 

For more information or more fact-specific discussions, call our office and ask to speak with attorney Michael Jaccarino.