On Jan. 1, 2020, the new legislation regarding criminal discovery and statutory speedy trial went into effect. See, e.g., People v. Percell, 2020 NY Misc LEXIS 479 (Crim. Ct., NY Co., Feb. 10, 2020). At the time of its enactment, many stalwarts in the criminal justice arena including many progressive district attorneys praised the reforms as improving the cause of justice. Nevertheless, even those stalwart progressive DA's came to acknowledge in one way or another that they were understaffed, unprepared and unfunded for the new requirements and coming digital deluge.

Similarly, issues were discerned early on concerning the legislated bail reform and, although changes were proposed, those changes were not instituted by the legislature. See, e.g, Rafael. A. Mangual, New York Post, "Sorry, New York: They Failed to Truly Fix the No Bail Law," (April 1, 2020). An unintended consequence of bail reform in New York was that federal authorities stepped in to prosecute various crimes. See, e.g., US DOJ EDNY press release, June 12, 2020, accessed at https://www.justice.gov/usao-edny/pr/two-brooklyn-residents-and-greene-county-resident-indicted-connection-molotov-cocktail. Discovery issues have more slowly surfaced. COVID-19's "[N]ew York on Pause" gave prosecutors some time to institute internal improvements to respond to the new discovery challenges. Unfortunately, unless those improvements included funded substantial technological advancements, well considered policy shifts, and internal office resource redistribution, the new disclosure requirements will, no doubt, be fertile ground for litigation as well as the basis for other unintended consequences more fully discussed below. See, e.g., Robert T. Merton, The Unintended Consequences of Purposive Social Actions (1936).

The Prosecutor's Duty and Cannibalization

The duties of the prosecutor with respect to discovery are clearly described in CPL §245.20(2), which states that a prosecutor "shall make a diligent, good faith effort to ascertain the existence of material or information discoverable under subdivision one of this section and to cause such material or information to be made available for discovery where it exists but is not within the prosecutor's possession, custody or control; provided that the prosecutor shall not be required to obtain by subpoena duces tecum material or information which the defendant may thereby obtain." These unfunded duties required under a shorter time frame caused many prosecutors' offices to resort to "cannibalization" of existing resources as a quick and efficient option. If cannibalization did not satisfy the needs, then deferment of cases was apparently an alternative option.

With more time required to be spent on the discovery process especially for the labor intensive cases involving voluminous electronically stored information (ESI), the prosecution of minor crimes was on the chopping block. Also, clearly not factored into the discovery amendments was the burdensome ESI already resulting from police body camera video on most street level arrest cases. For example, one arrest in which several officers were involved could result in hours of body camera ESI which would have to be carefully reviewed by a prosecutor, a paralegal and video technician. Inevitably, four of the five New York City elected District Attorney offices announced that certain crimes would be deferred, downgraded or even no longer prosecuted. The frequency of criminal case deferments in 2020 was reported to be more than 100% higher than in 2019. See, Anthony DeStefano, "New Discovery Laws Yielding Delays in Prosecutions, NYPD Says," Newsday, March 5, 2020.

Moreover, another significant unintended consequence and unmentioned in the legislation are the investigations that will go unpursued or cases disposed of by bargain basement plea deals because of the time consuming challenges of these new discovery hurdles, that put further drains on limited resources in prosecutor's offices to investigate and prosecute major offenders such as organized narco- traffickers, racketeering enterprises and sophisticated economic schemes, to name a few. Recent calls to defund the police and/or redistribute and reassign police personnel will also add to these unpursued and/or minimized investigations.

Additionally, the expedited document review and in some cases digital mining created by the discovery law's tight deadlines, that is, including disclosure to the defense within 15 days after arrest, had some offices offering their professional staffs financial incentives in the form of "bonuses" to compensate for longer hours required to meet the deadlines. But, as the old adage states, one cannot burn the candle from both ends, so that option has no long-term advantage.

ESI and Financial Crimes

ESI is usually quite abundant in financial crimes or so-called white-collar criminal cases such as embezzlements, bank fraud, money laundering, tax fraud cases, narcotics trafficking and organized criminal enterprises. Nevertheless, the ubiquitous use of cell phones and social media by most individuals today assures that there will be some form of ESI in almost all cases in which digital communications are part and parcel of the crime.

To respond to the financial crimes and associated cyber frauds and scams, many prosecutors' offices in major metropolitan areas employ specialized or boutique units staffed by teams of accountants, financial investigators, paralegals and analysts to review the mountains of financial records provided by various sources. Victims, witnesses, cooperators, third-party sources such as banks, brokerage companies, and other businesses that are required to keep and/or generate government mandated records including Suspicious Activity Reports (SAR's), Currency Transaction Reports (CTR's), Form 8300's (Reports of Cash Transactions over $10,000), and/or various document troves subpoenaed by prosecutors to track and locate stolen and/or laundered crime proceeds, are some of the records that must be reviewed.

These cases are time consuming and labor intensive but have the potential of resulting in significant prosecutions and multi-millions of dollars in restitution to victims and, in an appropriate case, forfeitures to the prosecutorial and investigative agencies involved. For instance, in one case involving a bank, HSBC, several federal, state and local district attorney offices, including the District Attorney's Offices of New York County and Queens County, obtained civil forfeiture through a deferred prosecution agreement, and consensual sanctions and shared in $1.26 billion which resulted from a long term money laundering investigation. See, ICE News Release, HSBC admits to anti-money laundering and sanctions violations following an HSI El Dorado Task Force investigation, Dec. 11, 2012. Successful investigations such as this one not only result in significant favorable publicity and recognition for the law enforcement agencies involved, but may also mean millions of dollars of funding to the law enforcement offices, and their directed community and social welfare programs. Given the increased workload caused by the new discovery requirements, the obvious question is whether these long term labor intensive financial investigations will also be victims of the new discovery requirements and the necessary redistribution of office resources. Another unintended consequence: depletion of these funding sources that generate monies to not only law enforcement programs but community and social welfare programs.

ESI Discovery Pursuant to CPL §245.20(1)(u)

CPL §245.20(1)(u) provides in pertinent part, that the prosecutor must disclose to the defense: (i) a copy of all electronically created or stored information seized or obtained by or on behalf of law enforcement from: (A) the defendant … or (B) a source other than the defendant which relates to the subject matter of the case (emphasis added); and (ii) if the electronically created or stored information originates from a device, account, or other electronically stored source that the prosecution believes the defendant owned, maintained, or had lawful access to and is within the possession, custody or control of the prosecution or persons under the prosecution's direction or control, the prosecution shall provide a complete copy of the electronically created or stored information from the device or account or other source.

The discovery requirements are quite broad and more expansive than the old law in mandating disclosure of any information which relates to the subject matter of the case. These requirements are particularly laborious in financially related matters where voluminous records may have been reviewed by law enforcement agents to trace and track monies. For instance, some matters initially pursued by law enforcement may later be determined not pertinent to the initial inquiry, but that data would fit the category of "related" and therefore required to disclosed. Interestingly, this requirement may give some aggressive prosecutors pause from following leads that may eventually require them to disclose all roads they pursued, and thereby create additional cross-examination fodder, or simply supply the defense with further tactical options during trial.

Further, if law enforcement has seized a device possessed or constructively possessed by the defendant, then the prosecution must disclose to the defense a copy of all of the ESI on the device. If the information is not from a device possessed or constructively possessed by the defendant, then the prosecution must disclose everything that relates to the case. The prosecution's compliance with the provision may be delayed by several potential impediments such as inaccessibility to the information because it is password protected, encrypted or perhaps, if not so protected, a warrant to review its contents has yet to be obtained. Accordingly, under any of these scenarios, the information may not be discoverable for some time as per CPL §245.10.

It should also be underscored that the law arms the defense with a valuable presumption. Under CPL §245.20 subd. 7 entitled Presumption of Openness, "[t]here shall be a presumption in favor of disclosure when interpreting sections 245.10 and 245.25, and subdivision one of section 245.20."

Discovery Compliance: CPL §30.30 Rule

Generally speaking, until a prosecutor announces ready for trial the CPL §30.30 clock continues to run. No prosecutor wants what is known in the vernacular, a case "thirty-thirty'd out" by violating the dreaded speedy trial clock. See, U.S. Constit 6^th and 14^th Amds; NYS Constit, Art. I, §6; CPL §30.20. That is, simply stated, the prosecutorial version of malpractice, and although immune from civil liability, the prosecutor is not immune from the personal embarrassment and the consequences within the office of such humiliation.

Under the discovery reform, a readiness statement that stops the clock is not valid until an official certificate of compliance  (COC) with the discovery rules has been properly served on defense counsel and filed with the court as per CPL §§245.50/ 245.20(5).

Conclusion

The full scope of the consequences of the enactment of the new discovery laws were, of course, unforeseeable at the time they were instituted. It was believed that the laws would expedite the discovery process, making the criminal justice system fairer. Nevertheless, in the few months the new discovery laws have been in effect through the "COVID-19 New York Pause," the natural and at times unforeseeable consequences of these changes have been charted. Time will tell whether the discovery amendments actually accomplish their intent to further the cause of justice in New York, or instead impede that sacred mission.

Peter A. Crusco, principal, Law Office of Peter A. Crusco P.C., was formerly the Executive Assistant District Attorney, Chief of the Investigations Division, Queens County DA's Office, a Special Federal Prosecutor, EDNY, a NYS Assistant Attorney General, and a Special Prosecutor for the Counties of Kings and Suffolk.