The past legislative session was one of the most productive sessions in recent memory with respect to criminal justice legislation. In a prior column I discussed the new laws relating to bail reform, discovery and the right to a speedy trial (New York Law Journal, May 31, 2019). This column will review other criminal justice legislation signed into law by Governor Andrew Cuomo, amending the Penal Law, Criminal Procedure Law and other related statutes.

It is recommended that the reader review the legislation for specific details as the following discussion will primarily highlight key provisions of the new laws. In some instances, as of this writing, legislation enacted by both houses has not yet been sent to the governor for his signature.

New Crimes Enacted

In the last session, the Legislature enacted several new crimes. One new crime addresses what has been referred to as "revenge porn." Individuals in intimate relationships frequently share sexually explicit photographs and, on occasion after the relationship is over, the recipient of the images disseminates the images on the Internet. A new crime, Unlawful Dissemination of Publication of an Intimate Image, a class A misdemeanor (L. 2019, Ch. 109, eff. Sept. 21, 2019), criminalizes the publication of these images. New York joins 45 other states in outlawing this behavior, but is the first state to allow victims to seek a court-ordered injunction to require websites to remove the offending image.

Under the new law, prosecutors must establish that the defendant intended to cause harm to the emotional, financial or physical welfare of another person and displayed the image without the other person's consent. In addition, prosecutors will have to prove that the defendant knew or reasonably should have known that the victim wanted the image to remain private. The new law also gives the victim the right to sue the defendant for damages for up to three years after the image is shared, or one year after the victim discovers or should have discovered the dissemination of the image. A victim can choose to proceed under the criminal law, civilly, or in both forums.

Another new crime, Staging a Motor Vehicle Accident, addresses the practice engaged in by criminals who intentionally cause a vehicular collision and then file fraudulent insurance claims to fleece insurance companies and their policy holders (L. 2019, Ch. 151, eff. Nov. 1, 2019). The new crime is a class E felony and, if serious physical injury or death is caused to another person, it is elevated to a class D felony.

The Legislature enacted several new laws to increase protection for tenants who are being harassed by their landlords. First, a new law provides statewide protection that had previously been afforded to New York City tenants under the Administrative Code. Under a new class A misdemeanor, Unlawful Eviction, a landlord can be prosecuted for engaging in various acts designed to force or induce a tenant of more than 30 consecutive days to vacate the dwelling (L. 2019, Ch. 36, eff. June 14, 2019).

A second new law increases protection for rent regulated tenants. The drafters of the bill noted that, under the existing statute, Harassment of a Rent Regulated Tenant, no landlord has ever been convicted because prosecutors were faced with a difficult burden of proof. They needed to prove not only that the offending landlord intended to cause the tenant to vacate his or her home, but that the tenant sustained physical injury as a result of the landlord's actions and that the landlord intended to cause the injury.

As a result, a new class A misdemeanor, Harassment of a Rent Regulated Tenant in the Second Degree was enacted (A. 6188, awaiting the governor's signature). The prosecutor must establish that the landlord engaged in various acts designed to evict the tenant but is not obligated to prove the infliction of physical injury. The former crime is now elevated to an E felony and, in addition to its current provisions, i.e., causing physical injury, it is expanded to include landlords who engage in a "systemic ongoing course of conduct" against two or more rent regulated tenants.

Decriminalization

The Legislature has also decriminalized certain conduct. Gravity knives are no longer "per se" criminal weapons and the mere possession of a gravity knife is now lawful (L. 2019, Ch 34. eff. May 30, 2019). In approving the bill, Governor Cuomo noted that the state ban on gravity knives was held to be unconstitutional in the federal court (Cracco v. Vance, 376 F. Supp. 304 (2019)). The court reasoned that the existing ban on gravity knives could result in arbitrary and discriminatory enforcement.

The Legislature has also decriminalized the possession of marijuana (L. 2019, Ch. 131, 132, eff. Aug. 28, 2019) and reduced the penalties for possession of small amounts of marijuana. The crime of Criminal Possession of Marijuana in the Fifth Degree (a class B misdemeanor) has been downgraded to Unlawful Possession of Marijuana in the First Degree (a violation). This would apply to amounts of one or two ounces of marijuana. It should be noted that the current class B misdemeanor crime for smoking marijuana in public has been eliminated. Similarly, Unlawful Possession of Marijuana (a violation) is now Unlawful Possession of Marijuana in the Second Degree (also a violation) but only carries a fine of up to $50.00. This would apply to amounts of less than an ounce of marijuana.

As part of the bill, individuals who had previously been convicted of the above marijuana crimes and other marijuana-related offenses under Article 220 of the Penal Law, can now move to vacate their convictions under Article 440 of the Criminal Procedure Law. In addition, the records of those cases can now be "expunged," a term that has now been added to the Criminal Procedure Law. If a record has been "expunged," the individual is not "required to divulge information pertaining to the arrest, prosecution and/or disposition of such a matter" (CPL 1.20(45)). Over the next year, the Office of Court Administration will work with the Division of Criminal Justice Services to erase these records manually. The records will be expunged automatically although, it has been argued, a motion by defense counsel will help to speed the process.

Finally, the Legislature has removed "abortion" from sections of the Penal Law and Criminal Procedure Law to conform with state and federal cases upholding a woman's right to safe, legal abortions (L. 2019, Ch. 1, eff. Jan. 9, 2019).

The Legislature has also expanded the definition of certain crimes. For example, "gender identity or expression" has been added as a protected class under the crimes of Aggravated Harassment in the First and Second Degree and Hate Crimes. The term includes, but is not limited, to the status of being transgender (L. 2019, Ch. 8, eff. Nov. 1, 2019). In addition, a person can now be charged with Unlawfully Dealing with a Child in the Second Degree if he or she sells cigarettes to a person less than 21 years of age; previously the limit was 18 years of age (L. 2019, Ch. 100, eff. Nov. 13, 2019).

Procedural Changes

As in past sessions, the Legislature has enacted a number of significant procedural changes. One group of bills relates to changes in statutory deadlines. To address the societal issue of sexual abuse against minors, the Legislature enacted the Child Victims Act (L. 2019, Ch. 11, eff. Aug. 14, 2019). The new law expands opportunities for child victims of sexual abuse to bring civil claims. On the criminal side, the law changes the point at which the statute of limitations begins to run for crimes committed against minors.

Prior to the new law, class B felony sex offenses had no statute of limitations and for other sex crime felonies, a five-year statute of limitations began to run when the victim turned 18. For misdemeanors, there was a two-year statute of limitations that also began to run when the victim turned 18. The new law applies to all sex crimes (felonies and misdemeanors) which have a statute of limitations and the statute now begins to run when the victim reaches 23, instead of 18 years of age.

Another new law extends the statute of limitations for certain sexual offenses that fall below a B felony (B felony sex offenses have no statute of limitations). The bill would extend the statute of limitations to 20 years for rape in the second degree and criminal sexual assault in the second degree and to 10 years for rape in the third degree and criminal sexual act in the third degree. It would eliminate any statute of limitations for incest in the first degree (L. 2019, Ch. 315, eff. Sept. 18, 2019).

A third bill addresses the time constraints on a trial judge when suspending jury deliberations. Under the prior law, a court could only suspend jury deliberations for a "reasonable period of time," not to exceed 24 hours (excluding weekends and holidays). The new law allows the court to suspend jury deliberations and separate the jury until the close of business on the second day following such recess or, for "good cause" shown, until the close of business on the third day following the recess (excluding weekends and holidays). This will allow courts to deal with emergencies that arise from time to time. Requiring "good cause" for any suspension longer than two business days, ensures that lengthy suspensions of jury deliberations will not become a routine matter (A. 7751, awaiting the governor's signature).

In a major revision of civil forfeiture procedures, the Legislature has curtailed a prosecutor's authority to seize a defendant's assets. For example, the new law eliminates a prosecutor's ability to obtain a pre-trial money judgment. Money judgments are still available but only after trial and only if a prosecutor secures a judgment against specific property proven to be tainted. In addition, untainted property may no longer be restrained before trial. A prosecutor can only restrain property prior to trial if he can satisfy a court that there is a substantial probability that he will be able to demonstrate at trial that the property is traceable to criminal activity. Finally, when a defense counsel seeks the release of restrained funds to pay his or her legal fees or the defendant's living expenses, a prosecutor can no longer object on the grounds that the funds should not be released because they were illegally obtained (L. 2019, Ch. 55, eff. Oct. 9, 2019).

Of Interest to Defense Counsel

Some new laws will be of great interest to defense counsel. The Legislature has eliminated an affirmative defense to murder; a defendant can no longer claim that he suffered from extreme emotional distress in committing murder when he discovered the victim's sexual orientation, sex or gender (L. 2019, Ch. 45, eff. June 30, 2019). This defense, known as the "gay panic" defense, was eliminated because it was recognized to be homophobic (see New York Law Journal, August 5, 2019).

Another bill authorizes counsel, who are assigned by the court to perfect an appeal, to assist clients more effectively by also handling any post-conviction collateral attacks (S. 3672, awaiting the governor's signature). Assigned lawyers in New York, unlike their counterparts in at least eight other states, have not been statutorily entitled to be compensated to investigate and pursue collateral motions, including claims of ineffective assistance of counsel. The new law addresses that issue.

Finally, a new law will provide public defense counsel (public defenders, legal aid societies and assigned counsel administrators) with direct access to criminal history reports of their clients from the Division of Criminal Justice Services (S. 2198, awaiting the governor's signature). Previously, public defense providers had to rely on prosecutors and judges for access to these reports.

A number of new laws will impact on court programs. For example, under current law, a defendant in a substance abuse treatment program, supervised by a drug court, is eligible to receive a two-year period of interim probation, between the date of a guilty plea and the date of sentencing. That two-year period is now also available to defendants in other types of treatment courts, e.g., mental health court or veterans court (L. 2019, Ch. 279, eff. Nov. 12, 2019). Another bill allows any county outside of a city with a population of one million or more to transfer a case in a local criminal court to a "problem solving" court (S. 3889, awaiting the governor's signature).

Finally, an accessible magistrate, sitting in an arraignment courtroom during off-hours, now has the authority to remove the case of a juvenile offender or adolescent offender to Family Court, with the consent of the prosecutor (L. 2019, Ch. 240, eff. Aug. 30, 2019).

Other procedural changes were made in the last legislative session. A new law closes a loophole in the double jeopardy statute and ensures that state prosecutors will be able to prosecute an individual who has received a pardon, reprieve or other form of clemency from the President of the United States pursuant to Act II, §2 of the Federal Constitution (S. 4572, awaiting the governor's signature).

Another bill clarifies an issue related to the sealing statute; all cases that result in only a conviction for a petty offense will now be sealed, regardless of the original arrest charge. In the past, law enforcement agencies sealed files where the arrest charge was a misdemeanor or felony, and the defendant was later convicted only of a traffic infraction or violation. The agencies, however, would not routinely seal cases in which the accused was only arrested for a violation or traffic infraction. That distinction has now been eliminated (S. 6347, awaiting the governor's signature).

The Legislature also clarified a conflict that had arisen in appellate decisions dealing with parking tickets. Some courts had held that, while a parking ticket is the functional equivalent of an appearance ticket, it is not an accusatory instrument and its filing does not confer jurisdiction over a defendant. See, e.g., People v. Carillo, 55 Misc. 3d 147A (App. Term 2d Dept. 2017)) (A. 2333, awaiting the governor's signature). The Criminal Procedure Law has now been amended to define an appearance ticket issued for a parking infraction, as an "accusatory instrument."

Finally, a new law expands the ability of charitable bail organizations to offer assistance to an increased number of indigent defendants. The law raises the monetary amount that such organizations may provide, from $2,000 to $10,000; allows organizations to post bail in any county; and reduces the certification fee from $1,000 to $500 (S. 494, awaiting the governor's signature).

Weapon-Related Laws

During the last session the Legislature enacted an unusual number of bills to address issues relating to the unlawful possession and use of weapons. The most notable bill is the Red Flag bill, which has also been called the extreme risk protection order bill (L. 2019, Ch. 19, eff. Aug. 24, 2019). New York joins 17 other states which have approved laws of this nature and which authorize courts to issue special orders, allowing the police to temporarily confiscate firearms from people who are found by a judge to be a danger to themselves or others. It should be noted that, under the new law, New York became the first state to permit school officials to apply for court intervention under these circumstances.

Under the new law, a petitioner can first apply for a temporary order to prohibit an individual (respondent) from possessing a weapon upon a finding that there is probable cause to believe that the respondent is likely to cause harm to himself or others. A hearing must be scheduled within three to six days although more time can be requested by the respondent.

Upon serving the temporary order, law enforcement officials can take possession of all weapons that are in "plain sight" and may conduct a search for weapons consistent with the search warrant provisions of the Criminal Procedure Law.

Within three to six days after service of the temporary order, a hearing will be held to determine whether a final order should be issued. If no temporary order is issued, the hearing will be held within ten business days after service of the initial application. The respondent can request additional time to prepare for the hearing.

At the hearing, the petitioner has the burden, by clear and convincing evidence, to establish that the respondent is likely to engage in conduct that would result in serious harm to himself or others. A final order, which can last up to one year, can prohibit the respondent from purchasing or possessing any firearms and can require the respondent to surrender any other firearms in his possession. Upon service of the order, law enforcement officials can seize any firearms in "plain sight" and can conduct a search consistent with the search warrant provisions of the Criminal Procedure Law.

During the effective period of the final order, the respondent can request a hearing to set aside the provisions of the order, based upon a change of circumstances; the burden is upon the respondent to establish any change by clear and convincing evidence.

Other weapon-related laws were enacted as well. It is now a class A misdemeanor to possess an "undetectable knife" with the intent to use it unlawfully against another (L. 2019, Ch. 146, eff. Nov. 1, 2019). An undetectable knife is one which does not utilize components that are detectible by a metal detector. It is also a class A misdemeanor to possess a "rapid-fire modification device" that can accelerate the firing rate of a semi-automatic weapon, rifle or shotgun (L. 2019, Ch. 130, eff. Nov. 27, 2019). It is now a class E felony to possess an "undetectable firearm, rifle or shotgun"; these weapons are not detectable by a magnetometer (L. 2019, Ch. 134, eff. Jan. 26, 2019).

In response to the tragic deaths of children who had access to guns owned by their parents, New York joins three other states in imposing criminal liability on a gun owner for failure to store a gun safely when a child may gain access to it. The Legislature created two new offenses: Failure to Safely Store Rifles, Shotguns and Firearms in the First and Second Degree (L. 2019, Ch. 135, eff. Sept. 28, 2019). It is a class A misdemeanor to fail to lock a weapon securely in an appropriate storage depository, where the gun owner resides with an individual under the age of 16. An amendment to the bill would permit a person who is under 16 years of age to have access to the weapon if he or she has a hunting license and is supervised by a parent or guardian (L. 2019, Ch. 133, eff. Sept. 28, 2019).

Other weapon-related laws will create an extension of up to thirty calendar days for a national background check (L. 2019, Ch. 129, eff. Sept. 12, 2019); require an investigation of the mental health records of another state where the applicant is domiciled there (L. 2019, Ch. 242, eff. Dec. 2, 2019); and permit law enforcement access to application information of firearm licenses (L. 2019, Ch. 244, eff. Sept. 3, 2019). Finally, schools are now prohibited from issuing written authorization to carry a firearm to anyone who is not primarily employed as a security guard, peace officer or police officer; this will ensure that teachers are not permitted to be armed while in school (L. 2019, Ch. 138, eff. June 6, 2019).

Several new laws will impact on sentencing. The most notable is the Domestic Violence Survivors Justice Act (L. 2019, Ch. 31, eff. May 14, 2019), which will serve to reduce sentences of both male and female survivors of domestic violence who are punished for acts taken to protect themselves from an abuser's violence.

The bill provides relief for two categories of defendants. First, a court can grant a reduced sentence if, after a hearing, the court determines that the defendant was a victim of domestic violence; the abuse was a significant contributing factor to the defendant's criminal behavior; and a sentence of imprisonment would be unduly harsh. Defendants serving a sentence can also apply for resentencing pursuant to this statute. The reader should consult the statute for specific alternate sentences available to first time felony offenders, second felony offenders, and A felony drug offenders.

Under another new law, the maximum sentence for a class A misdemeanor has been changed from one year to 364 days (L. 2019, Ch. 55, eff. April 13, 2019). It has been argued that this change could prevent federal immigration authorities from pursuing deportation proceedings because the sentence is no longer a "sentence of one year." The law permits an individual who has previously been sentenced to a definite sentence of one year to move to vacate the conviction; upon a vacatur of the conviction, the defendant can replead and be sentenced to a term of 364 days.

Other sentencing laws permit a judge to order shock incarceration for defendants convicted of burglary and robbery in the second degree (L. 2019, Ch. 55, eff. May 12, 2019) and allow state prison inmates entering solitary confinement in special housing units to make a telephone call upon admission to the unit, and at least once a week thereafter (L. 2019, Ch. 261, eff. Sept. 13, 2019).

Each year the Legislature enacts bill designed to protect crime victims. One new law authorizes a domestic violence victim to make a complaint to any local law enforcement agency in the state regardless of where the crime took place (L. 2019 Ch. 152, eff. Oct. 18, 2019). Other bills allow domestic partners of homicide victims to be eligible for compensation for out-of-pocket losses (A. 2566, awaiting the governor's signature) and simplify the language in the notice given to domestic violence victims, which informs them of their legal rights and remedies (A. 7395, awaiting the governor's signature).

Finally, when a defendant has been convicted of offering a false instrument for filing, in connection with a written instrument that transferred title to property, e.g., a deed, the prosecutor may now file a motion on behalf of the victim to void the instrument that was the subject of the defendant's conviction (L. 2019, Ch. 167, eff. Aug. 14, 2019).

In an effort to remove certain barriers to re-entry by those who have been convicted of crimes, the Legislature has enacted certain measures. In the area of employment, the Legislature has removed certain restrictions for those with felony convictions to obtain licenses to become real estate brokers, check cashiers, insurance adjustors, etc. In addition, it is now unlawful for any person to act adversely to an individual whose criminal action resulted in an adjournment in contemplation of dismissal. The Legislature has also repealed the mandatory suspension of a driver's license for certain speeding convictions and adjudications as a youthful and juvenile offender (L. 2019, Ch. 55 and 59, eff. April 12, 2019).

Finally, the Legislature has enacted new laws to address the regulation of electric bicycles, electric scooters and stretch limousines. It is now a class B misdemeanor to leave the Scene of an Accident Involving an Electric Scooter if the operator is aware that serious physical injury has been caused (S. 5294, awaiting the governor's signature). A person who operates a stretch limousine after the vehicle has failed an inspection, shall now be guilty of an A misdemeanor (L. 2019, Ch. 59, eff. April 12, 2019).

Barry Kamins is a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis/2019). He is a former state Supreme Court Judge