L is a survivor of domestic violence. After her ex-partner brutally assaulted her on a public sidewalk, L bravely cooperated with police. With abundant corroborating evidence including significant injuries and an eyewitness, prosecutors charged her abuser with assault.
In the ensuing weeks, prosecutors turned over a large compilation of evidence and information about L’s case to her abuser’s defense attorneys, as required by New York’s discovery statute. But later, and still well before the abuser’s trial date, L’s prosecutor learned that there were some minor body camera footage and text messages from a police officer whose involvement in the case was minimal and had not previously come to the prosecutor’s attention.
After learning of these materials, the prosecutor swiftly turned them over to defense attorneys. L’s abuser was not harmed in preparing his defense, as the materials had minimal relevance and were turned over in plenty of time for his use in preparing for trial. But because the disclosure was past the statutory deadline, the entire case was dismissed, L’s order of protection canceled.
L now lives in fear, far worse than after the original attack. “He can come back and do it again any time,” she said. “He has learned there are no consequences.”
My organization, Women’s Equal Justice, is based in the Bronx, where rape and other violent crimes have increased in the past year. And while New York has at times taken a leadership role in addressing sexual assault, we have currently fallen behind — shortchanging far too many survivors by allowing their cases to be dismissed for reasons that are patently unjust.
In 2019, New York passed sweeping changes to our bail and discovery statutes, aiming to make our justice system fairer for defendants. The discovery reforms, laudably, provide defendants with earlier and more detailed information about the evidence against them.
But some of the law’s provisions are causing real problems for victims of crime: dismissals of misdemeanor and felony complaints in Criminal Court have increased dramatically. In New York City in 2019, 5% of arraigned cases in Criminal Court were dismissed for discovery-related reasons; in 2024, that rate rose to 31%.
Consequently, many victims of domestic violence or sexual abuse find their order of protection gone, their case dismissed, and often, their abuser returning to intimidate them. The biggest reason: New York’s discovery law allows cases to be dismissed even for trivial, fixable discovery violations.
Under the current law, entire cases are often dismissed if a prosecutor fails to turn over any item to the defense before the statutory deadline, even if it is a document that was not in the prosecution’s possession, even if the prosecutor was unaware the document existed, even if the document is only marginally related to the case. If even a trivial item is missing, the prosecutor’s previous “ready for trial” statement is invalidated, often meaning that the case is dismissed on speedy trial grounds.
There is widespread agreement that dismissing cases of assault, sexual abuse, and other serious crimes, on a technicality that caused no prejudice to the defendant, is unacceptable. There is also widespread agreement that the core purpose of the discovery law — full and timely disclosure to defendants — should be fully protected and preserved.
Gov. Hochul is proposing a smart and measured remedy. Her proposal maintains all the protections for defendants’ rights, including the timelines on prosecutors and the expansive categories of evidence that prosecutors must produce. At the same time, it makes a few essential changes.
Most importantly, the proposal provides that, when discovery items are turned over belatedly, judges can impose consequences that stop short of dismissing the whole case, if a lesser remedy can ensure fairness to the defendant. Judges would be able to consider whether the item is crucial or marginal, whether the prosecutor was at fault for the delay, and whether a remedy short of dismissal can suffice.
Additionally, it changes the catch-all requirement from everything “related” to the case to everything “relevant” to the case, to ensure that irrelevant information is not required. These changes are not sweeping, but they are needed tweaks to a system that is currently leaving too many survivors stranded.
Lawmakers in Albany: there is a path to retaining what is good and right about the 2019 reforms while also giving weight to public safety, common sense, and the rights of crime victims. On this issue, we don’t have to choose between fairness to defendants and fairness to victims; the governor’s proposal wisely balances both.
Manning is director of Women’s Equal Justice, which serves survivors of gender-based violence.
