Annual Review of New Criminal Justice Legislation

Annual Review of New Criminal Justice Legislation

10.18.2023

By Barry Kamins

This article contains the annual review of new legislation amending the Penal Law (PL), Criminal Procedure Law (CPL) 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.

For the third time since 2019, New York’s bail laws have been amended.[1] At the outset, on Jan. 1, 2020, New York implemented a new bail statute that was transformative, creating a new landscape for release decisions following an arrest. In response to criticism of the initial statute, however, the Legislature later enacted two series of amendments that attempted to address those concerns: an expansion of both the number of qualifying offenses and the opportunity to impose additional non-monetary conditions of release.

Bail Statutes

This year, the Legislature did not propose amendments to the bail statute, but Governor Hochul did, out of her stated concern for public safety. The amendments, however, do not mandate more restrictive bail determinations than were authorized under the prior law, nor do they add any additional qualifying offenses. And, a defendant can still raise, of course, the constitutional argument that bail cannot be set in an excessive amount to prevent flight.[2] The amendments also retain the essential purpose of bail – to ensure the return of a defendant to court. The amendments, however, do change the overarching standard that judges have been required to utilize in making bail determinations.

Prior to the latest amendment, unless a court determined that an individual posed a risk of flight to avoid prosecution, the court was required to “select the least restrictive alternative and condition or conditions that will reasonably assure the [defendant’s] return to court.” (CPL Section 510.10(1)). Even when a defendant was charged with a bail-eligible “qualifying offense,” a court was required to seek the “least restrictive alternative” available. That standard has now been removed from all sections of the bail statutes, even though there was no evidence that the standard had confused or restricted judges or forced them to allow pretrial release where the setting of bail would instead be appropriate.

In its place, the Legislature has mandated that a court “shall make an individualized determination as to whether a [defendant] poses a risk of flight to avoid prosecution, consider the kind and degree of control or restriction necessary to reasonably assure the [defendant’s] return to court, and select a securing order consistent with its determination under this subdivision” (CPL Section 510.10(1)). Notably, this language is now included in the general rule applying to securing orders, the rule governing local criminal court securing orders (CPL Section 530.20(1)(a)), and the rule governing securing orders in superior courts (CPL Section 530.40(3)).

Courts should be aware, however, that the “least restrictive” standard has been retained for parole warrant hearings where a court must determine whether a parolee should be detained in jail pending adjudication of a non-technical parole violation. Unless a court finds that a parolee must be detained pending a preliminary or final revocation hearing, a court must still release the parolee on the “least restrictive non-monetary conditions” (Exec Law Section 250-i(3)).

While the new amendment to the bail law removes the list of usual factors courts must consider in setting securing orders (the defendant’s history, prior convictions, etc.) from the sections dealing with local and superior court securing orders, the list is included by reference in the section providing the general rule for securing orders (CPL Section 510.10(1)).

The latest amendment to the bail statute was, in part, a reaction to the governor’s concern that an increasing number of individuals were being arrested after having been released for committing an earlier crime. In the initial 2019 amendment to the bail laws, the Legislature addressed a court’s authority to modify or revoke a defendant’s release conditions if he or she is rearrested. The authority to fix bail when a defendant had been at liberty for a non-qualifying offense was only available if a defendant was found, after a hearing, to have met certain criteria under CPL Section 530.60. Upon revocation of a securing order, however, a court was still required to select the least restrictive alternative available to ensure the defendant’s appearance in court. That language has now been deleted and, under the latest amendment, courts appear to have more discretion in fashioning a new securing order for the original arrest.

Specifically, the new legislation now provides that, in issuing a new securing order on the first arrest, a court “shall consider the kind and degree of control or restriction necessary to reasonably assure the [defendant’s] return to court and compliance with court conditions” (CPL Section 530.60(2)(d)(iii)). In making this determination, courts must consider the “nature and extent of the [defendant’s] noncompliance with previously ordered non-monetary conditions of the securing order subject to revocation” (id.). Finally, in issuing a new securing order, a court can now add non-monetary conditions in addition to fixing bail (CPL Section 530.60(2)(d)(ii)).

The new law also provides that when an individual is arrested for a non-qualifying crime, courts will continue to have the authority to set non-monetary conditions, although those conditions will no longer need to be consistent with the “least restrictive alternative rule.” Finally, when setting a non-monetary condition in combination with bail, a court will no longer need to explain on the record that no other condition will suffice to reasonably assure the defendant’s return to court (CPL Section 500.10(3-a)(d)).

In addition, the Legislature has also expanded the types of treatment that can be required as a condition of release. Courts can now require a defendant to receive “mental health and chemical dependence treatment” or require a defendant to attend a “crisis stabilization center” (CPL Section 500.10(3-a)(f)). The latter is operated under the authority of the Office of Mental Health and the Office of Addiction Services and Support. The center can provide immediate treatment for individuals experiencing a behavioral health crisis and divert them from unnecessary emergency room visits. Last year, Governor Hochul announced funding awards of up to $75 million to create nine new centers across the state that will be open 24/7.

Clean Slate Bill

Two substantive pieces of legislation that would affect large numbers of New York citizens, if signed into law. The first bill, known as the Clean Slate Bill, would provide for the automatic sealing of most convictions within certain time periods, depending on the class of crime.[3] If enacted, New York would become the 11th state to adopt “clean slate” legislation.

The purpose of the bill is explained in its introductory paragraph, i.e., to eliminate discrimination of individuals who are seeking employment based on past convictions. The bill seeks to accomplish this by sealing, from public access, the conviction records of individuals for certain crimes only after the individual has satisfied his sentence and a required period of time has passed.

Under the proposal, a felony conviction would be automatically sealed after eight years subject to certain time restrictions mentioned below. Certain felonies, however, would be excluded: all Class A felonies (other than Class A felonies as defined in Article 220 of the Penal Law) and a conviction for a sex offense under the Penal Law, or a sexually violent offense as that is defined under Section 168-a of the Correction Law.

A felony conviction would be eligible for sealing if eight years have passed from the date an individual was released from incarceration for the sentence imposed or from the imposition of sentence if there was no sentence of incarceration. A conviction is not eligible for sealing, however, while an individual is on probation or parole for the conviction that is eligible for sealing. The reader should also review the amendment for other disqualifying factors, e.g., subsequent criminal charges pending in this state, a subsequent conviction for a crime before the conviction is sealed and certain subsequent felony charges or convictions pending in another jurisdiction.

A misdemeanor conviction can be automatically sealed if at least three years have passed from the defendant’s release from incarceration or the imposition of sentence if there was no sentence of incarceration. A conviction for Impaired Driving (VTL 1192(1)) is also eligible for sealing after three years.

Criminal records that are sealed pursuant to this statute will still be accessible to several agencies. For example, records would be available to state and federal law enforcement agencies, agencies that provide background checks for individuals who work with children and individuals with disabilities, and agencies that provide background checks for firearm permits and for those who wish to work in the area of law enforcement, financial services and education, etc. The statute also creates a cause of action against any person who improperly discloses information about the conviction once it is sealed.

The second piece of substantive legislation that was enacted is a bill that dramatically expands the ability to vacate convictions under Article 440 of the Criminal Procedure Law.[4] As the bill sponsor’s memorandum indicates, the goal of the legislation is a “fundamental overhaul of our state’s post-judgment motion law, article 440 . . .” in order to increase protection against wrongful convictions. While the goal of the bill is laudable, the legislation repeals a number of procedural provisions that exist to regulate meritless applications.

One of the most notable amendments to the statute provides defendants who have pled guilty with the ability to vacate their convictions. For example, a defendant who pleads guilty, but who is actually innocent, will now have the ability to set aside his or her conviction, abrogating the Court of Appeals decision in People v. Tiger.[5] Under the statute, an actually (or factually) innocent individual must prove “by a preponderance of the evidence that no reasonable jury of the [defendant’s] peers would have found the defendant guilty beyond a reasonable doubt” (CPL Section 440.10(h)).[6]

Defendants who plead guilty will have additional grounds under which they can seek relief. When a defendant pleads guilty and the defendant does so in reliance upon information provided by the prosecutor that was false, the defendant can move to set aside the conviction. (CPL Section 440.10(1)(c)). In addition, a defendant who pleads guilty, but who did not move to suppress evidence that was unlawfully obtained, will still be able to move to vacate the conviction (CPL Section 440.10(1)(d)). Where exculpatory forensic evidence is uncovered after a conviction, a defendant who has pled guilty can now vacate the conviction where the court determines that there is a reasonable probability that the plea offer would have been more favorable or the defendant would have rejected the plea offer (CPL Section 440.10(1)(g-1)).

Regarding newly discovered evidence, the legislation would eliminate the current requirement that a defendant must establish that such evidence could not have been obtained with due diligence prior to trial. And defendants who plead guilty will now be able to move to vacate a conviction when there is a reasonable probability that had such evidence been discovered prior to a plea agreement, the guilty plea would have been more favorable to the defendant (CPL Section 440.10(10(g)).

The bill repeals several procedural bars (both mandatory and discretionary) that had been in place to limit the number of otherwise meritless applications. For example, it would permit a trial court to reverse a conviction even though the same issue had been denied by an appellate court or when a defendant failed to raise an issue on direct appeal, even though he or she could have done so based on the record.

In addition, a court may now grant a hearing even though a claim is made solely by the defendant and is unsupported by any affidavit or evidence, as long as the claim is not contradicted by court records and there is a reasonable possibility that such allegation is true. Finally, the new statute provides that, upon request of the defendant or his or her counsel, a court must order the prosecution to “make available a copy of its file of the case, including any physical evidence in the People’s possession and grand jury minutes” (CPL Section 440.30(2)(a)).

Finally, the legislation would have an impact on the workload of the appellate courts. Currently, after a denial of a motion pursuant to CPL Section 440, a defendant may seek leave to appeal to the Appellate Division. The bill provides that a defendant would have the automatic right to appeal a denial in each case (CPL Section 450.10(4)).

Expanding Definition of Rape and ‘Revenge Porn’

Each year the Legislature enacts new crimes and expands the definition of others, and this year was no exception. The crime of rape has been broadened to include nonconsensual vaginal sexual conduct as well as nonconsensual oral and anal sexual contact; the latter conduct had previously been prosecuted under the “criminal sex act” statute that has now been repealed. By broadening this definition, the Legislature has provided increased protection to men and trans women who were previously unable to allege that they were victims of rape. In addition, the definition of “sexual intercourse” has been redefined as “vaginal sexual contact.”[7]

Four years ago, the Legislature enacted legislation to address the problem of “revenge porn,” where an individual disseminates or publicizes an intimate image of another person without that person’s consent. The crime – unlawful dissemination or publication of an intimate image – has now been broadened to address the utilization of artificial intelligence-generated technology to make images of fake events, commonly known as “deep fakes.”[8]

This technology allows an individual to create extremely realistic videos, often pornographic, placing the face of one individual on the body of another or using the technique of lip syncing. This fictitious, sexually explicit imagery disproportionately targets women and children, and it has been reported that the use of this technology has increased dramatically over the last three years.

Gun Rights

Last year the Legislature enacted several bills to comply with the Supreme Court’s decision in New York State Rifle and Pistol Assn. Inc. v. Bruen.[9] In amending various weapon laws, the Legislature created a comprehensive list of “sensitive locations” in which the possession of a firearm, rifle and shotgun constitutes an E felony. This year the law was amended to exclude from prosecution certain activities in summer camps and to add additional classes of individuals who are permitted to carry firearms at these locations.[10]

Safer Roads and Workplaces

In reaction to an increase in fatalities caused by unlicensed drivers, the Legislature amended the definition of aggravated unlicensed operation of a motor vehicle, a Class E felony. It lowered the required threshold from 10 license suspensions on 10 separate dates to five suspensions on five separate dates. In addition, if the individual being arrested for this crime is “evading lawful arrest,” the penalty can be a maximum of a two-year definite sentence.[11]

Finally, in an attempt to improve safer working environments, the Legislature has expanded the definition of “employee” in order to make corporations and employers more responsible for workplace deaths and serious injuries in the construction industry.[12] In addition, prosecutors can now seek stronger penalties against employers who steal wages from workers.[13]

Procedural Changes

A number of procedural changes were enacted in the last legislative session. One bill that will have a significant impact on a defendant’s right to appellate review permits a defendant to appeal a denial of a motion to suppress evidence, despite the fact that he or she has executed a valid waiver of appeal.[14] This may encourage prosecutors to offer more favorable plea bargains prior to a suppression hearing.

In People v. Slade,[15] the New York Court of Appeals held that, in cases where a complainant or witness has limited English proficiency, a certificate of translation is not required to convert a complaint into an information. In response, the Legislature has required that law enforcement officials use qualified translators who can translate the deponent’s allegations into English. Second, the translators must submit affidavits, affirming what they did along with their qualifications.[16]

Last year, Governor Hochul vetoed a bill that would have required courts to warn non-citizen defendants during a guilty plea allocution that “[i]f you are not a citizen of the United States you may become deportable, ineligible for naturalization or inadmissible to the United States based on a conviction by plea or verdict” (emphasis added). In the governor’s veto memorandum, she rejected the bill because the “hyper-technical requirements of this legislation would result in the vacatur of otherwise lawful convictions where defendants were fully aware of the immigration consequences of their actions” (Veto #94, 2022).

This year, the same legislation has been passed without any apparent amendments to the bill. One potential defect, not mentioned in the governor’s veto memorandum, is the one-sentence warning mentioned above. While a court would only be required to warn a non-citizen that he or she may be deported based upon a conviction, certain convictions mandate deportation under federal immigration law. Courts have held that such advice, if given by defense counsel, would constitute the ineffective assistance of counsel.[17]

Health Care and Substance Abuse

The Legislature has enacted several bills that will provide enhanced protection for certain classes of health care providers. One provision builds upon the abortion and reproductive health services law signed in 2022 by explicitly adding protections for telehealth services and prohibiting arrests in New York for those who provide these services.[18]

A second bill provides protection for individuals who come to New York State seeking “gender-affirming care, i.e., any type of care that affirms their gender identity or gender expression.” This legislation will make New York a haven for transgender individuals and their families whose rights are under attack in their home state and elsewhere. It prevents any arrests in New York for those who provide such care and prohibits law enforcement from cooperating with other states’ investigations regarding individuals who came to New York for that purpose.[19]

The Legislature has enacted a procedural change that would permit defendants in substance abuse treatment programs to opt out of any religious element of a program.[20] Another provision would permit the chief administrative judge to require judges to receive at least three hours of training on “bail recognizance and commitment procedures and standards.”[21]

An amendment would correct a typographical error in the statute that permits a vacatur or reduction of former marijuana offenses. As a result of a scrivener’s error, it was unclear whether individuals who were previously convicted of lower-level offenses could obtain relief without demonstrating “severe and ongoing consequences” as a result of their conviction. This amendment eliminates that requirement.[22]

Finally, the Legislature has prohibited the issuance of a desk appearance ticket when a police officer is required to arrest a person for a domestic violence crime pursuant to CPL Section140.10(4).[23]

Barry Kamins is a partner in the law firm of Aidala, Bertuna, & Kamins, where his practice focuses primarily on appellate matters and professional discipline. Prior to joining the firm, he was the administrative judge of the New York City Criminal Court and chief of policy and planning for the New York court system. Judge Kamins is an adjunct professor at Brooklyn Law School, where he teaches New York criminal practice. He is the author of New York Search and Seizure and writes the Criminal Law and Practice column for the New York Law Journal.

[1] L. 2023 N.Y. Laws, Ch. 56 (amending CPL Articles 500, 510 and 530)), eff. June 2, 2023.

[2] U.S. v. Salerno, 481 U.S. 739 (1987).

[3] S. 7551, awaiting the signature of the governor.

[4] S 7548, awaiting the signature of the governor.

[5] 32 N.Y.3d 91 (2018).

[6] People v. Chao, 217 A.D.3d 277 (2d Dep’t 2023).

[7] A 3340, awaiting the signature of the governor.

[8] S 1042, awaiting the signature of the governor.

[9] 142 S. Ct. 211 (2022).

[10] L. 2023 N.Y. Laws, Ch. 5 (amending PL § 265.01(e)), eff. May 3, 2023.

[11] A 3983, awaiting the signature of the governor.

[12] L 2023 N.Y. Laws, Ch. 61 (adding PL § 10.00(22)), eff. June 1, 2023.

[13] L. 2023, N.Y. Laws, Ch. 353 (adding PL § 155.05(f)), eff. September 6, 2023.

[14] A 152, awaiting the signature of the governor.

[15] 31 N.Y.3d 127 (2021).

[16] A 129, awaiting the signature of the governor.

[17] People v. Doumbia, 153 A.D.3d 1139 (1st Dep’t 2017); A 3057, awaiting the signature of the governor.

[18] L. 2023 N.Y. Laws, Ch. 138 (amending CPL § 570.17 and § 740.10(3-a), eff. June 23, 2023; 2023 N.Y. Laws, Ch. 101 (amending CPL § 570.17 and PL § 140.10(3-a)), eff. June 13, 2022.

[19] L. 2023 N.Y. Laws, Ch 143 (amending CPL § 570.19 and PL §140.10(3-b)), eff. June 23, 2023.

[20] A 5074, awaiting the signature of the governor.

[21] A 4899, awaiting the signature of the governor.

[22] S 7505, awaiting the signature of the governor; People v. Graubard, 214 A.D.3d 143 (2d Dep’t 2023).

[23] L. 2023 N.Y. Laws, Ch. 56 (amending CPL § 140.20(2) and CPL § 150.20(1)), eff. May 3, 2023.