Criminal Justice New York State Budget

Hochul Wants to Revisit Another Criminal Justice Reform: State of the State 2025

After years of targeting bail, the governor is proposing changes to New York’s 2019 discovery reform law.

Chris Gelardi · January 15, 2025

| Photos: Governor Kathy Hochul; Beyond My Ken / Wikimedia Commons; Elia Clerici / Pexels | Illustration: Leor Stylar

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In her annual State of the State address Tuesday, Governor Kathy Hochul proposed for the third time altering New York’s 2019 criminal justice reforms.

This year, the changes revolve around discovery, a process in criminal trials that requires prosecutors to share evidence with the defense. Her proposals so far are vague, and the legal mechanics at play are complex.

Before the 2019 reforms, under a statute pejoratively known as the “blindfold law,” prosecutors could leave defendants in the dark by waiting until right before trial to hand over evidence. Now, they must do so on a deadline, giving the defense an opportunity to use the materials to build their case; if they don’t, judges can dismiss the charges.

Among other provisions, Hochul wants to make it harder for judges to dismiss cases when prosecutors fail to share materials. Her State of the State policy book released Tuesday describes the proposal as a minor change that would close a “loophole” that prompts judges to dismiss otherwise strong cases.

“We do not want to change the original spirit of the law,” Marcos Gonzalez Soler, Hochul’s deputy secretary for public safety, told New York Focus.

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But public defenders worry that Hochul’s changes would gut the heart of discovery reform.

“The governor’s proposal would allow prosecutors to disregard these timeframes in every single case, move forward without providing all of the evidence, and shift the burden to the defense to request evidence in order to obtain it,” said Eli Northrup, criminal defense policy director for The Bronx Defenders.

District attorneys complain that judges are dismissing cases after prosecutors have, through no fault of their own, come across new materials after the discovery deadline. And they blame defense attorneys for playing into that dynamic.

“The statute in its current form lends itself to combative gamesmanship from defense counsel and the wholesale dismissal of cases across the state on technicalities,” said Richmond County District Attorney Michael McMahon, president of the District Attorney Association of the State of New York.

The reform law dictates that judges should only dismiss cases for discovery reasons if a prosecutor fails to exercise “due diligence” in turning over the required material. New York’s highest court affirmed that standard in December 2023, listing six criteria for judges to consider when determining whether a prosecutor exercised due diligence.

“The statute does not require or anticipate a ‘perfect prosecutor,’” Judge Caitlin Halligan wrote for the court.

“Diligent prosecutors are not penalized for inadvertent mistakes,” the Legal Aid Society said in a statement.

Asked whether the court case makes Hochul’s discovery adjustments moot, Gonzalez Soler said that his office ran them by the Office of Court Administration. They responded positively — suggesting, he argued, that Hochul’s proposal is still needed.

“Otherwise, they would have said, ‘Why do you need that?’” he said.

Hochul’s policy book outlines other changes to the discovery law: “clarifying” exactly what types of evidence prosecutors have to produce; automatically redacting personal information unrelated to a case; and reducing the amount of notice required before a defendant’s statements can be presented to a grand jury.

The full scope of those proposals, too, won’t be fully known until the governor’s office releases more details.