Policy debates again stymie NY’s budget

New York’s budget is now 24 days overdue—stalled not by fiscal questions, but by policy debate. 

Discovery law reform, cell phone restrictions in schools, and expanded standards in the mental hygiene law for involuntary commitment are some hot-button issues that have stymied progress. 

“The reason the budget is delayed is that members of New York State government can’t seem to play nice in the sandbox,” observes Republican Assemblyman Josh Jensen, adding that policy items “are sucking all the oxygen out of the room, and is why we don’t have an on-time budget.”

Jensen represents the 134th District, which includes Hilton, Greece and Spencerport.

One item in particular—changes to the state’s discovery law—became a sticky issue soon after Gov. Kathy Hochul unveiled her $252 billion spending plan in January. The governor views her proposed changes to Kalief’s Law, as the discovery statute also is known, as a streamlining effort that centers victims and their families. This week, during a visit to Rochester, Hochul said that while some reforms had been necessary, the pendulum has swung too far in that direction. Those who oppose her proposal see it as a rollback of crucial reforms. 

So far, it has been a contentious issue marked by intense and prolonged negotiations. District attorneys this month were in Albany championing the changes, while criminal justice reform advocates and public defenders, some of whom created an alliance to protect Kalief’s Law, have voiced their concerns over the last few months. 

Last week, Assembly Speaker Carl Heastie saw momentum toward a compromise after meeting with district attorneys. No deal has yet been reached, however.

History of reform

Before 2020, New York was among a handful of states that did not require prosecutors to disclose discovery material—police reports, video recordings and other evidence—until the day of trial. The law was commonly referred to as the “blindfold” law. 

“They didn’t have to give us police reports, all these things they didn’t have to give us,” says Erik Teifke, an assistant public defender in Monroe County. “So we didn’t know if this proof against our clients was non-existent or kind of mediocre or strong. Then they would make you (a plea) offer, and it was hard to decide whether or not to take it.

“If you went to trial,” he adds, “one side had the ability to prepare and the other side did not. Prosecutors got people who they couldn’t prove cases against to plead guilty, and they were able to win more trials because they didn’t have to give us the information. So it’s no secret that they liked it like that. That severe lack of balance was to their advantage.”

In January 2020, the state passed criminal justice reform legislation, including discovery reform, requiring prosecutors to disclose collected evidence earlier in court proceedings. The goal, public defenders like Teifke say, was to level the playing field and bring fairness and transparency into the process. 

In its original form, before amendments were made, Article 245 of the Criminal Procedure Law required prosecutors to automatically disclose materials in a case, including those received from law enforcement, without a formal request from the defense. It also established timeframes for the sharing of evidence between the prosecution and defense during pretrial proceedings. It mandated the early and automatic sharing of such material between attorneys to allow for timely access to potentially critical information for the defendant’s case and to limit delays.

The legislation tied discovery compliance to a defendant’s right to have a case against them dismissed if it is not prosecuted within a specific timeframe. If a discovery is filed appropriately and on time, it stops that clock.

“When the law for discovery was put on the books, they said, ‘OK, well, if you flout that law, (and) we find out you flouted it, then you weren’t ready for trial, and that clock could expire and you could lose that case,” Teifke says. “So, take us seriously. Do your work. Do it on the timeline we’ve established. You can announce readiness for trial. No cases get dismissed for that reason, and the system runs perfectly because everybody has their information.”

In April 2020, some of these timeframes were relaxed, allowing distinctions between defendants in custody and those who weren’t, as well as exceptions for the disclosure of identifying information of certain victims and witnesses. In 2022, yet another amendment was passed, limiting the obligation to share traffic infraction materials and guidance for courts to assess compliance after the initial information is shared.

Two years ago, a decision in People v. Bay significantly impacted the interpretation and enforcement of Article 245. Prosecutors have to be more diligent in filing discovery materials and their certificate of compliance indicating readiness for trial. This could result in delays, especially during pretrial proceedings. Early discovery is helpful for the defense to assess a case’s strength, negotiate a plea, or prepare for trial.

The streamlining plan

Hochul, after consulting with district attorneys and law enforcement, proposed:

■ expanding the scope of automatic redaction to include sensitive details, such as witnesses’ physical addresses and personal information, a step that could eliminate the need for litigation for redaction;

■ removing the incentive to delay bringing a challenge in a manner that can result in technical dismissals unrelated to the merits of the case or the legality of the investigation;

■ requiring courts to look at the case as a whole and whether any error caused prejudice to the defense, which she says would prevent cases from being dismissed if discovery compliance falls short of perfection; and

■ narrowing the scope of automatic discovery, taking away the need to track information that isn’t relevant.

Monroe County District Attorney Sandra Doorley agrees with these proposed goals.

“Governor Hochul’s proposed changes to discovery laws in this year’s budget represent common-sense reforms aimed at ensuring justice,” she wrote in a March newsletter. “During our advocacy efforts, we have encountered confusion and misinformation. Let me be clear, the discovery proposals are not a repeal of the 2019 reforms; rather, they are a logical response to some of its unintended consequences.”

These unintended consequences, from a DA’s perspective, are dismissals on technicalities, case delays and longer case processing times. 

In a statement from the New York District Attorney’s Association, Michael McMahon, president and Richmond County DA, said, “New York State’s discovery law has resulted in a less swift and less efficient discovery process in every single county in New York State. This has had an impact on crime victims as well as public safety. The discovery proposal in the governor’s budget strikes a balance of maintaining full transparency while emphasizing victims’ rights and the safety and well-being of all New Yorkers.”

Public defenders and legal aid attorneys don’t see it that way. Sarah Ryan, chief attorney of the criminal defense unit at the Legal Aid Bureau of Buffalo, says her office urges lawmakers to reject any rollback of New York’s discovery laws.  

In Ryan’s opinion, Hochul’s “proposed changes threaten the fundamental right of New Yorkers to a fair defense.”

“Limiting access to evidence tilts the scales of justice, especially for our minority communities that are already disproportionately impacted by the criminal legal system,” she adds. “We must not return to an era of coerced pleas, prolonged pretrial detention, and wrongful convictions. This is a matter of justice, transparency, and civil rights.”

Impact of reform

In her call for changes, Hochul has highlighted speedy trial dismissals due to minor technicalities as a key issue. According to the Discovery Reform Court Activity Dashboard maintained by the New York State Unified Court System, the rate of dismissals is higher in New York City than outside that metropolitan area. For example, in first 11 months of 2024, the most recent data available, of the 1,578 felony complaints filed in Monroe County, 86 were dismissed compared with 35,773 felony complaints filed in New York City courts, of which 15,574 were tossed.

Judges make the decision whether a prosecutor or a defense lawyer has complied with the law. A 2024 judicial report found that the challenges with the discovery law are more prevalent in New York City than elsewhere in the state. These trends have remained consistent since 2021, when judges were first surveyed on the implementation of the law. 

“Judges in NYC in particular reported spending the most time on discovery-related applications and motions, and more often stated that the prosecution rarely meets their discovery obligation,” the report reads. “These judges also indicated more than the others that the components of the discovery legislation have been time-consuming for them.”

New York City-based respondents indicated the law has caused a slowdown in case processing while the majority of judges outside the city and local court judges reported no such slowdown, the report states.

Scrutnize, an organization that analyzes data on judicial decisions and impacts, reviewed some 300 unpublished judicial decisions, a dataset made available, which found a discovery violation. 

“These decisions reveal that judges are dismissing cases because prosecutors regularly fail to meet basic evidentiary obligations, sometimes ignoring discovery requests for months or choosing to withhold evidence. They are not dismissed due to trivial errors or defense tactics,” the report states.

“Most of these dismissals are taking place down in New York City,” says state Sen. Jeremy Cooney, who supports the governor’s proposals. “So, that’s why you see the five district attorneys who represent the five different boroughs of New York City all pushing for this. Sandra Doorley and the Monroe County district attorney’s office does support this discovery reform, but it’s less of an impact in Rochester than it is in New York City.

“For me, it’s pretty simple. This is about getting justice for the victims and making sure that they have their day in court,” he adds. “And we don’t want serious criminal matters to be dismissed on technicalities. If there’s going to be a trial, let’s not have it be dismissed on technicalities.”

The impact of discovery reform—regardless of amendments—rests on how well it is implemented and enforced, states a 2022 report from John Jay College’s Data Collaborative for Justice and the Center for Court Innovation.

“If implemented properly, the current law has the potential to shrink case processing times, resulting in shorter jail stays for people held in pretrial detention,” the report reads. “By facilitating a defendant’s ability to prepare a defense, the reform may also result in fewer prison or jail sentences and more just outcomes. It is critical that future research answer these questions about whether the reform is meeting these objectives across New York State.”

Where does it go from here?

Though district attorneys downstate want change, the New York City Bar Association supports CPL 245 in its current form. In a detailed March report, the bar urged the state Legislature to reject revisions, “particularly given the Governor’s attempt to revise CPL 245 on a rushed timeline through the state’s budget process, which, given the April 1 budget deadline, provides little time for legislative discussion or meaningful hearings to explore the ramifications of the proposed changes.”

While that deadline has passed, it remains uncertain whether changes to the discovery law will be implemented as planned. Teifke, like others, notes that the circle discussing the issue has become smaller.

“As we get into the final stretch, (Hochul) doesn’t appear to be listening to defenders much anymore,” he says. “Our concern is that prosecutors are going to complain their way into additional erosion of the law.”

Few specifics have been made public about the status of the remaining budget. Cooney is hopeful that the Housing Access Voucher Program could see some progress. He is a co-sponsor of the legislation.

“We’ve heard rumblings from the Trump administration that they are looking to cut what we call Section 8 benefits, which is the federal housing voucher,” he says. “A lot of Rochesterians use Section 8 vouchers to pay for apartments around the community. If those get cut, we have to have some sort of safety net for housing stability. If we have a housing access voucher program, then at least more New Yorkers would have the funds available to pay their rent, because it’s a lot easier to keep people where they are currently residing than it is to put them into shelters or and this is especially the case for children.”

Jensen is concerned about Medicaid dollars.

“We hear time and time again from leaders in New York that they’re concerned about what the federal government and the federal budget could do (to) Medicaid spending,” he says. “It’s a critically important part of our social safety net, and we hear doom and gloom from the governor and other folks about (how) federal cuts could rain havoc, but in the governor’s executive proposal, we’re not putting any money aside to deal with any possible reduction in federal resources coming our way, especially in Medicaid.”

Those cuts could hurt health care providers and nursing homes.

“We’re setting ourselves up for failure, and really for people to be hurt if we’re not preparing for an eventuality that the federal government could make changes,” Jensen says. “My hope is they don’t. I hope they look at ways that states like New York can spend Medicaid dollars that come from the feds more efficiently and more effectively.”

If he had his way, Jensen would rather discuss fiscal matters like these than policy during a budget approval process. If it’s good policy, he says, “put it on the table as a standalone piece of legislation.”

“What’s unique about our budget process in New York State compared to, let’s say, the federal budget, is that our budget has to be a balanced budget, meaning our expenses cannot exceed our revenue,” Cooney notes. “And in addition to that, in New York, we can put policy items into the budget. And so the policy items are often where there (is) really spirited debate.”

On Wednesday morning, when Jensen spoke to the Beacon, he said a deal could still be reached this week and the Legislature could move forward as soon as next week.

“But that’s the precarious nature of negotiations that are happening behind closed doors, in secret, without even not just rank-and-file members from both parties, but leadership in the majority party not being at the table,” says Jensen. “Things could fall apart quickly, just as quickly as they could come together. I think if more of these negotiations were happening in public, and especially policy was out of the conversation, I think that we’d get to a consensus a lot sooner.”

He adds: “When we debated the seventh budget extender, Gary Pretlow, who is the Ways and Means chairman, said that he thinks we’re going to see white smoke from the Vatican before we see white smoke from the State Capitol.”

Smriti Jacob is Rochester Beacon managing editor. 

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