NYS & NYC Criminal Courts During COVID-19: Important Procedural Changes

In these unprecedented times of the COVID-19 and Coronavirus pandemic, there are many changes to how the justice system and Criminal Courts in New York, including New York City, Westchester, and Rockland, work just the Family Court system has implemented its own polices for emergency Domestic Violence Orders of Protection and other applications. The various directives, restrictions, and alterations to court procedures and operations may even continue to change. Complicating matters for both criminal defense lawyers and those arrested for a Coronavirus Crime or other offense, complying with directives from various sources, including Governor Cuomo’s Executive Orders, recommendations from the President and federal agencies, local laws, directives at the county level, and orders from the Office of Court Administration, is a job in and of itself. Simply, it is crucial that you and your attorney stay fully abreast of the fluid situation.

Governor Cuomo, for one, has issued numerous Executive Orders addressing the COVID-19 pandemic. As of March 24, 2020, there were ten Executive Orders that addressed various topics. Some of these orders include provisions and directives such as a prohibition on gatherings of over 50 people, “non-essential gatherings of individuals of any size for any reason are cancelled or postponed,” the ordered closing of bars, restaurants, gyms, amusement parks, hair salons, nail salons, and barber shops, and various employer restrictions. New York State Executive Law Article 2-B allows the governor to issue these kinds of emergency declarations and emergency orders, and section 29-a gives the governor the authority to declare a state of emergency and issue emergency orders as well. Furthermore, Executive Order 202.7 raised the level of mandatory teleworking for non-essential businesses to 100%, and directed that violations of that directive would be punishable under section 12 of the Public Health Law which allows for a civil penalty of up to two thousand dollars for every individual violation.

The courts have responded to the crisis by imposing their own new procedures and operations as well. In addition to the Coronavirus arraignment procedures, as of March 30, 2020, essential or emergency applications in New York City Criminal Court are being handled by the following process:

Special Applications

The applying party must contact the supervising judge or chief clerk and request that the matter be put on the court’s calendar. If the judge and court in that county cannot accommodate the request, then the applying party must contact the Criminal Court’s citywide special application coordinator by email to schedule a court appearance. These citywide special applications are being done by appointment only and by video conference. Only a limited number of these special applications will be heard each day, and so the courts will be prioritizing the cases and requests using the information and input from the parties.

Interpreting Executive Orders

There are also areas where the courts and governor’s orders intersect, with varying degrees of clarity. For example, some county DA’s offices have interpreted the Executive Order 202.8 as suspending 30.30/speedy trial and/or 180.80 release, although the Executive Orders as of March 19,

2020 at least do not directly reference these statutory provisions directly. Some prosecutors have sought a ruling from a presiding judge declaring their position to be correct. Some judges have granted that application, effectively suspending certain Constitutional and Due Process rights for defendants, and others have denied it as premature.

The result of some prosecutors taking this stance will undoubtedly have far-reaching effects on certain cases.

Trials, Grand Juries & Jury Service

As of March 13, 2020, the courts in New York had decided that criminal jury trials would continue in which jeopardy has attached (i.e. where the jury has been sworn or opening statements have begun), so as not to implicate Constitutional double jeopardy problems that would result in cases being unnecessarily dismissed. Ongoing jury selection is to be suspended, and no new jury trials are to commence. Relatedly, as of the same date, existing Grand Juries were to continue, but no new Grand Juries will be impaneled without exceptional circumstances. What this will mean for new felony arrests, particularly serious violent felonies, once the current Grand Jury term has expired is unclear.

These are just some of the many complications and unanswered questions that have been created in the criminal justice system by the COVID-19 epidemic. Whether you are charged with a Coronavirus Crime or arrested for any offense, always remember that you have certain rights that can never be stripped away. As frightening and uncertain your future may be inside and outside the courtroom, experience, knowledge and advocacy is your best defense. Let the criminal lawyers and former Manhattan prosecutors lead the way.

Call the New York criminal defense attorneys and former Manhattan prosecutors at (212) 312-7129 or contact us online today.