[caption id="attachment_3070" align="aligncenter" width="620"] New York state Capitol in Albany.[/caption]

This year's legislative session fizzled to an end Wednesday, leaving several criminal justice and litigation issues unsettled.

The only legal-world issue that lawmakers seemed to agree on was a commission to investigate misconduct by the state's prosecutors. That bill is now waiting for Gov. Andrew Cuomo's signature.

Conversation around a multitude of other issues was less amicable.Efforts to reform the state's bail system did not make it through the state Senate, where Sen. Patrick Gallivan, R-Elma, said changes to the state's system weren't necessary.“Just because people put forward an idea doesn't mean what we already have isn't good enough,” said Gallivan, who chairs the Senate Crime Victims, Crime, and Correction Committee.

“They're suggesting they're going to make it better. I don't necessarily believe that's true.”

Bail reform was one of several legal issues Cuomo positioned himself to champion at the beginning of this year's session, saying during his State of the State address that it would be a top priority for him.

“The blunt ugly reality is that too often, if you can make bail you are set free and if you are too poor to make bail you are punished,” Cuomo said. “We must reform our bail system so a person is only held if a judge finds either a significant flight risk or a real threat to public safety.”Cuomo and Assembly Democrats have said they want to see an end to monetary bail for most misdemeanor and certain nonviolent felony charges. The issue was championed by former Court of Appeals Chief Judge Jonathan Lippman before his retirement in 2015. The state Justice Task Force, a panel created by Lippman in 2009 to reduce the number of wrongful convictions, also recommended ending bail for most nonviolent offenses this year.As chief judge, Lippman urged judges to set lower bail levels or use alternatives to cash bail, like electric monitoring. That discretion is why the Senate has been opposed to widespread reform, Gallivan said.“[Judges] already have the option in almost all cases to release someone on their own recognizance or release them with cashless bail,” Gallivan said. “I think if people are looking to reform the system, one of the way to go about it is, perhaps, additional or better training for judges.”But discretion is also the problem, advocates say. They want lawmakers to enact bail reform so there's a statewide standard that judges must follow, rather than a set of options that could leave defendants in prison for long periods of time before trial.“With legislators on recess in their districts for the remainder of the year, our clients—people of color—and other New Yorkers will suffer daily because of Albany's inaction,” said Tina Luongo, attorney-In-charge of the Criminal Defense Practice at The Legal Aid Society.Those in the bail industry said they actually aren't opposed to changing the state's bail system, but that any reform should be done with public safety in mind. Michelle Esquenazi, president of the New York State Bail Bondsman Association, said lawmakers should still allow judges to set bail for repeat offenders and crimes of moral turpitude.“One of the things that I know is that you can not reward recidivism,” said Esquenazi, who's worked in the bail industry for more than two decades. “So, what we say in terms of bail reform is sure, the indigent should get a charitable piece, but it should really not be a crime of moral turpitude because that crime has a human victim and that transcends political ideology.”The District Attorneys Association of the State of New York shares a similar position. Each case is different, said DAASNY president and Oneida District Attorney Scott McNamara. Prosecutors want to be able to recommend bail for certain crimes and certain individuals.“Our position all along has been that a presumption of a release on misdemeanors is something we'd accept and most of us are doing that already, with exceptions in certain circumstances, domestic violence being one of them,” McNamara said.The DAASNY is not opposed to reform, McNamara said, they just want a seat at the table to talk about what will benefit defendants while maintaining their power as prosecutors.

Discovery Reform

Democrats also called for discovery and speedy trial reform this year, though members of the state Assembly did not agree with Cuomo's proposal. Assemblyman Joe Lentol, D-Brooklyn, had concerns over language the governor included that would give prosecutors more power to redact information sought during discovery. That conflict was not resolved.

“We had to fight not only the Senate but the governor to get the bills changed,” said Lentol, who chairs the Assembly Codes Committee. “So, we wound up in a spot where we really got nothing.”Lentol argued that if the Legislature passed discovery reform, they would be compelled to act on bail and speedy trial reform as well because of how each issue overlaps. Gallivan said, at this point, he does not see a path to any of those reforms passing in the Senate.“I'm not opposed to discussion about anything but I think all of these issues should be looked at from all sides, and looked at objectively and not from a political point of view,” Gallivan said.Prosecutors say they are willing to compromise on discovery and speedy trial reform, but that some of the proposals being pushed in Albany have been unrealistic. One would require prosecutors to share their civilian witnesses 30 days after arraignment, McNamara said, which could compromise a case before trial.“In the world we live in, witness intimidation and witness elimination are a real problem,” he said. “We are trying our hardest around the state to reduce crime so if we see something that we feel is going to hurt our ability to do that, we push back.”Defense attorneys disagree. Andy Kossover, a legislative co-chair of the New York State Association of Criminal Defense Lawyers, said bail, discovery and speedy trial reforms are long overdue.“It's hard to disagree with the fact that earlier and more meaningful discovery leads to a fairer criminal justice system and prosecutors should share all relevant information with the defense unless there's a compelling reason not to,” Kossover said.Democrats said they will continue to push the issues during next year's session, though the chances of it passing will be slim if Republicans maintain a majority in the state Senate. Lawmakers are scheduled to return to Albany in January unless a special session is called to resolve other issues in the meantime.