THE NEW YORK STATE TRIAL PENALTY:

THE NEW YORK STATE

TRIAL PENALTY:

The Constitutional Right to Trial Under Attack

PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA

PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA

PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA

PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA

PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA

PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA

PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA

PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA PLEA

TRIAL

and National Association of Criminal Defense Lawyers

This work is licensed under the Creative Commons Attribution-NonCommercial-

NoDerivatives 4.0 International License. To view a copy of this license, visit

http://creativecommons.org/licenses/by-nc-nd/4.0/. It may be reproduced, provided that

no charge is imposed, and the New York State Association of Criminal Defense Lawyers

(NYSACDL) and the National Association of Criminal Defense Lawyers (NACDL) are

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reproduction, please contact NYSACDL and NACDL.

National Association of

Criminal Defense Lawyers

1660 L Street NW, 12th Floor

Washington, DC 20036

Phone 202-872-8600

www.NACDL.org/Foundation

This publication is available online at

www.NACDL.org/NYSTrialPenaltyReport

New York State Association of

Criminal Defense Lawyers

90 State Street, Suite 700

Albany, NY 12207

Phone 518-443-2000

www.NYSACDL.org

This publication is available online at

nysacdl.org/page/NYTrialPenalty21

For more information contact:

THE NEW YORK STATE

TRIAL PENALTY:

The Constitutional Right to Trial Under Attack

Alice Fontier

President, NYSACDL

Jennifer L. Van Ort

Execuive Director, NYSACDL

Christopher W. Adams

President, NACDL

Norman L. Reimer

Execuive Director, NACDL

NYSACDL Trial Penalty Task Force

Susan J. Walsh

Chair

Mike Baker

Christopher Boyle

Rebecca Brown

Lori Cohen

Elizabeth Fischer

Timothy Hoover

William Leahy

Christopher Madiou

Grainne O’Neill

Jill Paperno

Nathan Pysno

Martha Rayner

Norman L. Reimer

Tim Rountree

Donald Salzman

Jocelyn Strauber

ii / New York State Trial Penalty Report

CONTENTS

About the New York State Association of Criminal Defense Lawyers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

About the National Association of Criminal Defense Lawyers and the NACDL Foundation for Criminal Justice. . . . . . . . . . . . . . . . . . . . . 2

Foreword. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Executive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Key Findings � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 6

Principles and Recommendations � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 8

Principles � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 8

Policy Recommendations � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 9

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

The Trial Penalty: Research and Background � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 12

New York’s Disappearing Trial � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 15

Defining the Trial Penalty: Practitioner Experiences and Survey Results. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

Survey and Interview Methodology� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 17

Trial Penalty Prevalence � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 18

Consequences of Pleading Guilty � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �19

Factors Contributing to the Trial Penalty � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �23

Prosecutorial Conduct � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 23

Aggressive Charging � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 24

Contingent Plea Offers and Waivers of Pretrial Rights� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 29

Late or Incomplete Discovery � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 34

Prosecutorial Posttrial Sentencing Recommendations � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 35

Judicial Conduct � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 39

Judges’ Role in Plea Negotiations � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 40

Judges’ Discretion to Set Bail � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 43

Judicial Bias in Sentencing� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 45

Sentencing Laws � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 50

Mandatory Minimum Sentences � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 50

Sentencing Enhancements for Repeat Offenders � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 52

Excessive Caseloads for Judges, Prosecutors and Defense Attorneys � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 56

The Trial Penalty by the Numbers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59

Fixing the Trial Penalty: Principles and Policy Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63

Principles � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 63

Policy Recommendations � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 64

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66

Appendix 1: NYSACDL Scope of the Trial Penalty Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67

Appendix 2: NYSACDL Survey Example and Results. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68

Survey Landing Page Text� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 68

Survey Questions � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 69

Appendix 3: Example Outreach Materials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75

Appendix 4: Data and Methods for Trial Penalty by the Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79

Data� � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 79

Analysis � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 80

Endnotes: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82

New York State Trial Penalty Report / 1

ABOUT THE NEW YORK STATE ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS

New York State Association of Criminal Defense Lawyers (NYSACDL) is a statewide organization of

criminal defense attorneys, representing over 1,000 private attorneys and public defenders who practice in

courthouses in all parts of New York State. We are the New York State affiliate of the National Association

of Criminal Defense Lawyers, a professional bar association founded in 1958 that has over 40,000 affiliated

members nationally.

NYSACDL is dedicated to protecting the rights of criminal defendants through a strong, unified, and

well-trained criminal defense bar. Our guiding principle is that vigorous defense is the strongest bulwark

against error and injustice in the criminal justice system. In an era when the United States has the highest

incarceration rate in the world, we expand on the question most often posed to our members and ask “how

can we defend those people most effectively?” This dedication is demonstrated through frequent and timely

education programs, a strong advocacy program in New York working for our profession and those we serve, the

regular publication of our Atticus magazine, an active and vibrant member listserv, involvement in important

Amicus Curiae briefs, and numerous special projects.

New York State Association of Criminal Defense Lawyers

90 State Street, Suite 700, Albany, NY 12207

Phone 518-443-2000

www.NYSACDL.org

This publication is available online at

nysacdl.org/page/NYTrialPenalty21

2 / New York State Trial Penalty Report

ABOUT THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS AND THE

NACDL FOUNDATION FOR CRIMINAL JUSTICE

The National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization in the

United States advancing the goal of the criminal defense bar to ensure justice and due process for persons charged

with a crime or wrongdoing. NACDL envisions a society where all individuals receive fair, rational, and humane

treatment within the criminal legal system.

NACDL’s mission is to serve as a leader, alongside diverse coalitions, in identifying and reforming flaws

and inequities in the criminal justice system, and redressing systemic racism, and ensuring that its members and

others in the criminal defense bar are fully equipped to serve all accused persons at the highest level.

NACDL members — and its 90 state, local and international affiliates — include private criminal defense

lawyers, public defenders, active U.S. military defense counsel, and law professors committed to promoting

fairness in America’s criminal legal system. Representing thousands of criminal defense attorneys who know

firsthand the inadequacies of the current system, NACDL is recognized domestically and internationally for its

expertise on criminal justice policies and practices.

In 2018, NACDL published a groundbreaking report on the federal trial penalty — The Trial Penalty: The

Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (https://www.nacdl.org/Document/

TrialPenaltySixthAmendmentRighttoTrialNearExtinct). Curtailment of the trial penalty is a core advocacy

objective for NACDL. NACDL recognizes that the trial penalty is one of the most serious problems in the nation’s

criminal legal system, one that perpetuates injustice and disparity.

The NACDL Foundation for Criminal Justice (NFCJ) is a 501(c)(3) charitable non-profit organized to

preserve and promote the core values of the American criminal legal system guaranteed by the Constitution —

among them access to effective counsel, due process, freedom from unreasonable search and seizure, the right

to a jury trial, and fair sentencing. The NFCJ supports NACDL’s efforts to promote its mission through resources

education, training and advocacy tools for the public, the nation’s criminal defense bar, and the clients they serve.

National Association of Criminal Defense Lawyers

1660 L Street NW, 12th Floor, Washington, DC 20036 | Phone 202-872-8600

www.NACDL.org/Foundation

This publication is available online at

www.NACDL.org/NYSTrialPenaltyReport

New York State Trial Penalty Report / 3

FOREWORD

Both the United States Constitution and the New York State Constitution guarantee those accused of a

crime the right to a trial at which the state must prove guilt beyond a reasonable doubt. But in the modern criminal

legal system, trials have become a scarcity. Recent data shows that in New York State 99 percent of misdemeanor

charges and 94 percent of felony charges are resolved by a guilty plea. New York is by no means an aberration.

Across the country criminal trials are vanishing at an alarming rate. A principal cause of this phenomenon is

the simple fact that in virtually every jurisdiction people plead guilty to avoid significantly greater punishment,

having nothing to do with their guilt or innocence. If they contest the charge against them, litigate the legality of

evidence that will be offered, or insist upon a trial, they will receive a much harsher sentence. This trial penalty

has fundamentally transformed the criminal legal system into a plea system in which trials are nearly extinct.

This development is neither congruent with the principles upon which the nation was founded nor is it

conducive to a healthy justice system. Nowhere is the right to a jury trial more sacred than in New York State.

Decades before the revolution, the importance of the jury trial was forever woven into the fabric of American

ideals in the trial of John Peter Zenger. Zenger’s vindication by a jury on a charge of seditious libel in 1735 has been

characterized as the spark that ignited the fire of the American revolution. An American founder Gouverneur

Morris later wrote, “The trial of Zenger in 1735 was the germ of American Freedom, the morning star of liberty

that subsequently revolutionized America.”

The Framers of the United State Constitution considered the right

to a jury trial as important as the right to vote. John Adams wrote that “[r]epresentative government and trial

by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like

horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.”

This bold statement

reflected the consensus view of the Framers that trials not only afford a protection for the accused, but they

protect everyone in society by promoting transparency and citizen participation when the government invokes

the awesome power to prosecute.

The current plea system, which has overtaken the criminal process, is anything but transparent and rarely

involves public trials. The ever-increasing size and scope of the criminal legal system has been accompanied by

laws, policies, and practices that have shifted the historic authority of judges to fashion appropriate sentences

to prosecutors who wield extraordinary power to determine the magnitude of criminal sentences through their

unfettered charging power. Mandatory minimums sentences, sentencing enhancements, and charge selection

provide the prosecutor with the leverage to extract guilty pleas under the threat of vastly increased punishment

upon those who assert their rights. This leverage is available from the first appearance, when the threat that a

person will be unable to afford bail can be used to induce an early guilty plea, throughout the entire process,

where, at each step of the way, waivers of various rights are the price of a reduced sentence. In this way, guilty

pleas operate to foreclose litigation that may expose unlawful government action or police misconduct.

i Quoted in “John Peter Zenger” by Livingston Rutherford (NY 1941].

ii The Revoluionary Wriings of John Adams 55 (C. Bradley Thompson ed., 2000).

4 / New York State Trial Penalty Report

Of course, sheer volume also places enormous pressure upon judges and defense counsel, as well as

prosecutors, to process cases as quickly as possible. Judges’ rightful concern that every case be heard and a woeful

underfunding of the defense function have transformed many courts into guilty plea conveyor belts. While there

is no doubt some value in promoting efficiency and early case disposition, it is a great concern when that objective

overtakes the larger purposes of the justice system. When punishment is significantly enhanced merely because

an individual asserts fundamental rights, it makes a mockery of the notion of proportional, individualized justice.

This report issued by the New York State Association of Criminal Defense Lawyers in collaboration with

the National Association of Criminal Defense Lawyers appropriately shines a light on the nature and breadth

of the trial penalty in New York State. All stakeholders and policy makers should take note of the defense bar’s

concerns and consider seriously the principles and proposed reforms. The data and the compelling stories

recounted in this report should provoke informed debate over the nature and extent of the trial penalty and

prompt a reconsideration of whether the palpable erosion of the right to trial is an acceptable feature of the

modern criminal legal system.

Honorable Jonathan Lippman

(Ret.) Chief Judge of New York

Of Counsel, Latham & Watkins

New York State Trial Penalty Report / 5

ACKNOWLEDGEMENTS

This report is the final product of a remarkable collaboration of defense organizations, community groups,

individual attorneys and other justice system practitioners who gave generously of their time, insight, and energy.

First and foremost, NYSACDL thanks the Trial Penalty Task Force Members who lent their extraordinary

experience to this project: Mike Baker, Christopher Boyle, Rebecca Brown, Lori Cohen, Elizabeth Fischer,

Timothy Hoover, William Leahy, Christopher Madiou, Grainne O’Neill, Jill Paperno, Nate Pysno, Martha Rayner,

Norman L. Reimer, Tim Rountree, Donald Salzman, and Jocelyn Strauber. The Task Force, in turn, is grateful to

NYSACDL Past Presidents Tim Hoover and Lori Cohen for their enthusiastic support of this project and their

participation on the Task Force, as well as NYSACDL Executive Director Jennifer L. Van Ort.

NYSACDL sincerely thanks the team of attorneys at Skadden, Arps, Slate, Meagher & Flom LLP, who

devoted countless hours to researching and drafting this report. The Skadden team of attorneys, led by Esther

Bloustein, Elisa Klein, Jocelyn Strauber, and Donald Salzman, also included Pamela Amaechi, Anthony Balzano,

Joseph Ben-Maimon, Dewey Bennett, Rahul Bhasin, Samuel Bieler, Chloe Bootstaylor, Stephanie Cannuli, Caitlyn

Cheleden, Ella Cohen, Carson Denny, Warren Feldman, Shelli Gimelstein, Keema Givens, Kent Hiebel, Kindall

Jackson, Adam Kochman, Elizabeth Kraus, Zachary Leibowitz, Seth LeMaster, Brendan Lum, Sonya Mitchell,

Aaron Murphy, Mackenzie Newman, Alexander Patrick, Morgan Petkovich, Christina Phan, Scott Rabinowitz,

Kendra Rosario, Kara Roseen, Matthew Rosenthal, Mary Ross, Ryan Rott, Martin Rowe, Joshua Schoch, Julia

Timerman, Peter Varlan, and Sahng-Ah Yoo.

NYSACDL also wishes to extend its thanks to the New York Legal Aid Society (LAS), Neighborhood Defender

Services (NDS), and New York County Defender Services (NYCDS) for their help collecting and analyzing the data used

in this report. In particular, NYSACDL wishes to thank LAS’s Tim Rountree, NDS’s Elizabeth Fischer, and NYCDS’s

Chris Boyle, Willem Van Der Mei, and Celia Joyce for their assistance in the data collection and analysis process.

This report would not have been possible without the generous participation of the many lawyers and

their clients who contributed their experiences with the trial penalty in New York State. NYSACDL is grateful to

everyone who was willing to share their stories and respond to its survey.

Finally, NYSACDL wishes to thank the National Association of Criminal Defense Lawyers (NACDL) for

inspiration and support in making this project a reality. It epitomizes the quintessential example of productive

collaboration between the national organization and a state affiliate. Numerous members of the NACDL team

contributed to this project at various phases, including NACDL’s Director of Economic Crime and Procedural

Justice Nate Pysno, who served on the task force, and NACDL Executive Director Norman L. Reimer, who has been

a tireless advocate to rein in the trial penalty, served on the Task Force, and supported this project at every stage.

Susan J. Walsh

Chair

Trial Penalty Task Force

6 / New York State Trial Penalty Report

EXECUTIVE SUMMARY

Over the past three decades, the number of criminal trials in New York State has steadily declined, and

guilty pleas have become the principal mechanism of convictions. The decline in trials and rise in guilty pleas

severely weakens the integrity of the justice system. Trials and pretrial motion practice provide a critical check

on law enforcement overreach and abuse and assures public transparency in the administration of justice. Guilty

pleas not only allow prosecutors to avoid proving their case before a jury of the defendant’s peers, but also to

avoid legal and constitutional challenges to law enforcement methods of investigation. Defendants who plead

guilty generally are required to waive appellate review, foreclosing another avenue of legal challenge to their

convictions and sentences.

The decline in trials and rise in guilty pleas severely weakens the

integrity of the justice system. Trials and pretrial motion practice

provide a critical check on law enforcement overreach and abuse

and assures public transparency in the administration of justice.

TRIAL

This report from the Trial Penalty Task Force of the New York State Association of Criminal Defense

Lawyers (NYSACDL) explores a key reason for the decline in trials: the trial penalty. Criminal defendants face a

trial penalty when they receive a sentence after trial that is substantially greater than the plea offer they received

before trial. Faced with the prospect of a longer, and perhaps substantially longer sentence, defendants are

understandably reluctant to take their case to trial. Furthermore, plea offers often are made in a manner that

discourages pretrial motion practice, and even encourages defendants to waive their right to be indicted by a

grand jury and to receive discovery.

To understand this troubling phenomenon, NYSACDL developed and launched a survey of New York State

criminal justice practitioners. More than three hundred criminal defense attorneys from across New York State

responded, sharing their personal experiences and observations of the impact of the trial penalty and stories of

clients who experienced it firsthand. NYSACDL conducted a statistical analysis of criminal convictions in New York

State assembling a sample of 79 cases from Manhattan criminal defense organizations with plea and conviction

information to investigate whether there was a trial penalty in New York State and the impact of any such penalty.

Key Findings

◆ New York State has a trial penalty: 94% of practitioners agreed that the trial penalty plays a role in

criminal practice in their county.

◆ The trial penalty manifests in numerous ways: While longer sentences are part of the trial penalty,

they are not the only part. To obtain favorable pleas, defendants are also forced to waive various

appellate rights and the ability to challenge the government’s case through motion practice.

New York State Trial Penalty Report / 7

◆ Numerous factors drive the trial penalty: The trial penalty is driven by a broad range of different factors.

Prosecutorial practices such as aggressive charging, judicial pressure to plead guilty, and the prospect

of severe criminal penalties, sentencing enhancements and mandatory minimums should a defendant

proceed to trial are significant contributors. Defense counsels’ excessive caseloads also contribute to the

pressure on defendants take pleas and forgo exercising their statutory and constitutional rights.

◆ Data confirms the existence of a trial penalty: Data analysis supported practitioners’ insights. In 66%

of cases, defendants in the sample experienced a trial penalty. The data also shows increased plea

offers are associated with increased eventual sentences. For example, a plea offer of five years was

associated, after conviction at trial, with a sentence of 7.5 years and a 20 year offer would be associated

with a 28 year sentence.

Throughout, the report also highlights stories of the trial penalty in action. In one drastic example, a

defendant was offered a plea to 10 years just five minutes before the jury convicted him. Once convicted, his

sentence was 40 years.

Based on these findings, the Task Force developed a set of 10 principles and 15 policy recommendations to

mitigate the effect of the trial penalty and restore the criminal trial’s central role in the justice system. Three key

elements of these principles and recommendations are:

1. Reducing defendants’ exposure to severe and disproportionate sentences: Eliminate mandatory

minimums; reduce the kinds of conduct subject to criminal penalty; and provide second-look

statues, compassionate release legislation, and an expanded clemency process that ensures that

sentences remain proportionate while offering safety valves for older and sicker defendants or

those with other extraordinary circumstances.

2. Protecting defendants who exercise their rights: Prevent judges and prosecutors from penalizing

defendants with longer sentences solely based on their decision to go to trial or challenge the

government’s case through pretrial motion practice; and prohibit conditioning pleas on the waiver

of constitutional or statutory rights and ensure that criminal defense organizations have the

resources to provide a zealous defense.

3. Using data to drive reform: Do not evaluate judges or condition judicial assignments on pretrial dis-

position quotas, hearing and trial volumes, or other disposition rates; and collect data on plea offers

and sentencing dispositions to explore more about how the trial penalty operates in New York State.

Plea offers often are made in a manner that discourages pretrial

motion practice, and even encourages defendants to waive their

right to be indicted by a grand jury and to receive discovery.

TRIAL

8 / New York State Trial Penalty Report

Principles and Recommendations

Principles

1. The trial penalty — the substantial difference between the sentence offered prior to trial versus

the sentence a defendant receives after a trial — undermines the integrity of the criminal justice

system.

2. No one should be punished for exercising her or his rights, including seeking pretrial release

and discovery, investigating a case, challenging law enforcement conduct, and filing or litigating

pretrial statutory and constitutional motions.

3. The decline of criminal trials erodes the oversight function of the jury thereby muting the voice

of lay people in the criminal justice system and also undercuts the role of appellate courts in

supervising the work of trial courts.

4. The decline of criminal trials — and attendant waivers of the right to appeal and the right to

challenge unconstitutional police action — undermines the oversight ability of courts and juries

to ensure law enforcement accountability.

5. The decline of criminal trials tends to encourage longer sentences thereby contributing to mass

incarceration, including mass incarceration of people of color and the poor.

6. Trials protect the presumption of innocence and encourage the government to charge cases based

on sufficient, legally obtained evidence to satisfy the reasonable doubt standard.

7. The decline of criminal trials impacts the quality of prosecutorial decision-making, defense

advocacy and judicial supervision.

8. The trial penalty creates a coercive effect which profoundly undermines the integrity of the plea

bargaining process.

9. Mandatory minimum sentences undermine the integrity of plea bargaining by creating a

coercive effect and undermine the integrity of the sentencing process by eliminating case-by-case

individualized evaluation.

10. Neither prosecutors nor judges should be permitted to use mandatory minimum sentences to

retaliate against a defendant for the decision to go to trial or challenge evidence.

New York State Trial Penalty Report / 9

Policy Recommendations

1. Mandatory minimum sentencing statutes should be repealed or subject to a judicial safety valve

in cases where the court determines the individual circumstances justify a sentence below the

mandatory minimum.

2. A judicial second-look statute should be enacted to enable a court to review lengthy sentences after

substantial service thereof to ensure that the sentences are proportionate over time.

3. Prosecutors should be prohibited from conditioning plea offers on a waiver of statutory or

constitutional rights necessary for a defendant to make an informed decision on whether to plead

guilty. These rights include a defendant’s right to seek pretrial release or discovery, the right to

investigate their case, or litigate pretrial motions.

4. NYCPL § 220.10(5) should be repealed because it limits the ability to resolve a case by pleading

guilty to a lesser charge.

5. The Code of Judicial Conduct should include an express prohibition against retaliatory or vindictive

sentences for a defendant who has rejected a pretrial plea offer and proceeded to trial.

6. Procedures should be adopted to ensure that defendants are not punished with substantially longer

sentences for exercising their right to trial or related constitutional rights. Posttrial sentences

should not disproportionately increase the pretrial plea offer solely because the defendant has

elected to proceed to trial.

7. Judicial or prosecutorial policies which prohibit pretrial plea dispositions on trial-ready cases

should be prohibited.

8. It should be unethical for a prosecutor to seek a higher sentence compared to the pretrial offer

based on the defendant litigating his or her statutory or constitutional rights, including the right

to trial.

9. Judicial pretrial disposition quotas should not be used as a metric by which judicial or systemic

performance is evaluated. Judicial performance should not be assessed by reference to disposition

rates nor should any judicial assignment determination hinge on the percentage of cases in a

judge’s docket in which evidentiary hearings or trials are conducted.

10. NYCPL § 710.70 should be amended to read “shall” instead of “may” to effectuate the legislative

intent to preserve issues in suppression motions for appeal even after a guilty plea and preserve

appellate review of pretrial decisions on motions.

10 / New York State Trial Penalty Report

In one drastic example, a defendant was offered a plea

to 10 years just five minutes before the jury convicted him.

Once convicted, his sentence was 40 years.

TRIAL

11. Courts, prosecutors, and public defenders should collect information on plea offers and trial

outcomes. Agencies involved in criminal cases should collect data on at least (1) the best plea

offered; (2) the final plea offered; and, if applicable, (3) any final sentence. Together, these three

data points would give more insight into how the trial penalty operates in New York.

12. Compassionate release legislation should be enacted to provide an avenue to seek a judicial order

granting early release based upon advanced age, illness, or extraordinary circumstances.

13. The clemency process should be reformed to expand eligibility by reducing the requisite period

of time that must be served and to provide for opportunities for commutation based upon the

recommendation of an independent panel comprised of various system stakeholders, as well

as public health and community representatives. There should be no bar to people who plead

guilty from seeking relief under a freestanding claim of actual innocence pursuant to NYCPL

§ 440.10(1)(h).

14. The judicial, prosecutorial, and defense functions should be funded at a level sufficient to ensure

that the disposition of cases is driven solely by the interests of the defendant, the public, and justice

and not by a need to triage limited resources.

15. Criminalization of disfavored social or personal behavior should be discouraged to relieve the

burden on criminal court dockets.

New York State Trial Penalty Report / 11

INTRODUCTION

In the past three decades, criminal trials have significantly decreased in New York while guilty pleas have

increased. Criminal defendants who plead guilty in New York State almost always are required to waive their

fundamental rights as a condition of their guilty pleas — not only their right to a trial but also to discovery and a

meaningful opportunity to investigate; their Fourth, Fifth and Sixth Amendment rights to challenge unlawfully

obtained evidence; and even the right to appeal. These rights are crucial to the accused but also serve as a necessary

check on law enforcement and prosecutorial overreach and abuse. It is therefore critical to explore the extent to

which a pretrial resolution may be employed not solely to reward an accused person for early acknowledgment

of guilt but rather to effectively coerce a waiver of fundamental rights. It is also important to understand how

such waivers harm the general public: trials not only protect the accused but also shine a spotlight on government

overreach and constitutional abuse that might otherwise go undetected. With fewer consequences for overreach and

abuse, it becomes more difficult to prevent such violations or convince law enforcement to take the steps necessary

to prevent such abuse.

Criminal defendants who plead guilty in New York state almost

always are required to waive their fundamental rights as a

condition of their guilty pleas — not only their right to a trial

but also to discovery and a meaningful opportunity to investigate;

their Fourth, Fifth and Sixth Amendment rights to challenge

unlawfully obtained evidence; and even the right to appeal.

These rights are crucial to the accused but also serve as a necessary

check on law enforcement and prosecutorial overreach and abuse.

TRIAL

A major reason such trials are disappearing from U.S. courtrooms is the trial penalty.

iii

This most often

refers to the significant difference between a pretrial sentence offer and the posttrial sentence imposed as a

consequence of exercising the fundamental right to trial. The trial penalty puts overwhelming pressure on

defendants to plead guilty in exchange for a lower sentence — or, as the practice is commonly known, to “plea

bargain,” a term that suggests, often inaccurately, that a defendant is getting some kind of unearned benefit,

rather than a sentence proffered by a public servant that accurately reflects both the severity of the defendant’s

conduct and the strength of the state’s case.

As noted, defendants who take a plea to a reduced sentence lose not only their constitutional right to trial

but also a host of other critical rights, with significant consequences not only for the individual who pleads guilty

but also for the general public. While pleas to lesser sentences may save the government the time and expense of

a trial and can result in shorter sentences, the severe posttrial penalties for those who refuse a pretrial resolution

punish the exercise of fundamental constitutional rights and encourage even the innocent to plead guilty rather

than risk challenging the government’s case pretrial, at trial and on appeal.

iii Some use the equivalent term “trial tax.”

12 / New York State Trial Penalty Report

This report of the New York State Association of Criminal Defense Lawyers (NYSACDL) and the National

Association of Criminal Defense Lawyers (NACDL) explores the trial penalty in New York. In February 2019, the

Trial Penalty Task Force of the NYSACDL adopted a “Scope of the Problem” statement identifying concerns with

respect to the impact of the trial penalty on the justice system. This report explores those concerns on the basis

of surveys of the criminal defense community, practitioner interviews and analysis of data on case processing,

convictions and guilty plea practices.

Resolving cases through pleas is so common that all participants in the

process accept it as inevitable in criminal cases. Yet there is a growing

national consensus that the resulting trial penalty phenomenon

must be addressed because it threatens to erode the crucial role

that jury trials are meant to play in our criminal justice system.

TRIAL

The report begins by reviewing guilty pleas and the dominant role they play in securing convictions in

New York State. It then explores the factors that contribute to the trial penalty, drawing on practitioner interviews

and survey results. Then, with the limited data available, the report seeks to quantify the impact of the trial

penalty, using data from two New York State defense organizations to explore how much additional time is served

by those who choose to exercise their constitutional right to trial. The report concludes with recommendations

and principles intended to mitigate the trial penalty and promote the fairer administration of criminal justice in

New York State. Throughout, the report provides case studies of the trial penalty in action: individuals charged in

criminal cases who are pressured to waive their rights or are subjected to excessive penalties for exercising them.

The Trial Penalty: Research and Background

Resolving cases through pleas is so common that all participants in the process accept it as inevitable in

criminal cases. Yet there is a growing national consensus that the resulting trial penalty phenomenon must be

addressed because it threatens to erode the crucial role that jury trials are meant to play in our criminal justice

system. In 2013, Human Rights Watch (HRW) published “An Offer You Can’t Refuse: How US Federal Prosecutors

Force Drug Defendants to Plead Guilty,” which analyzed the trial penalty in federal drug cases. The report found

that the “average sentence of federal drug offenders convicted after trial was three times higher (16 years) than

that received after a guilty plea (five years and four months).”

HRW attributed these harsh penalties and the

overall disappearance of trials to the essentially unchecked discretion of prosecutors during the charging and plea

offer phases and to “egregiously severe sentencing laws.”

The threat of such severe penalties after trial inevitably

pressures criminal defendants to take pleas,

which has led to the virtual disappearance of criminal jury trials.

As one prosecutor bluntly stated: “The key function of the trial penalty is to encourage pleas.”

According to HRW,

“this historically low rate of trials reflects an unbalanced and unhealthy criminal justice system.”

In July 2018, the National Association of Criminal Defense Lawyers (NACDL) identified similar issues in

its report “The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.”

iv A copy of this Scope of the Trial Penalty Statement is included as Appendix 1.

New York State Trial Penalty Report / 13

The report found that federal criminal defendants — even those who were actually innocent — were frequently

coerced into pleading guilty because the potential penalty associated with exercising their constitutional right

to trial was simply too great.

According to the report, as of 2018, a trial “now occurs in less than 3% of state

and federal criminal cases.”

NACDL found that additional factors contributed to the disappearance of the trial,

including prosecutorial discretion, informational inequalities between prosecutors and defendants,

rigid federal

Sentencing Guidelines and an inability or unwillingness on the part of judges to exercise their discretion at

sentencing.

While the promise of a lesser sentence is a potentially appropriate aspect of the plea negotiation

process, “the gap between post-trial and post-plea sentences can be so wide” that it acts as an “overwhelming

influence in a defendant’s consideration of a plea deal.”

The report also noted that the immense pressure to

plead allows prosecutors to convince criminal defendants to agree to “all-or-nothing agreements,” which waive

important rights like the ability to challenge the legality of the evidence obtained against them.

Research has also confirmed that defendants’ fear of a lengthier sentence posttrial is well founded. One study,

based on all federal criminal cases from 2006 to 2008, found that those who exercised their right to trial received

sentences that were 64% longer than similarly situated individuals who pled guilty prior to trial.

Accordingly, the

study found that because trials pose significant risks of materially longer sentences, defendants are dissuaded from

putting the government to its proof, and as a result, prosecutors can “adjudicate both criminal culpability and the

magnitude of any punishment largely unfettered by concerns about the likelihood that the defendant might be

found not guilty at trial.”

These and other studies

paint a Kafkaesque portrait of the plea “negotiation” process

for criminal defendants, particularly for those who are innocent but nonetheless choose to plead guilty to avoid the

potential of a disproportionate sentence after trial should they be convicted.

The critiques of these aspects of guilty plea resolutions are bipartisan. In 2019, the Federal Sentencing

Reporter journal dedicated a double issue to the trial penalty. Critiques of the practice came in from all quarters

including the ACLU,

Right on Crime,

the Cato Institute.

Families Against Mandatory Minimums,

The Charles

Koch Institute

and Americans for Prosperity.

One study, based on all federal criminal cases from 2006 to

2008, found that those who exercised their right to trial

received sentences that were 64% longer than similarly

situated individuals who pled guilty prior to trial.

TRIAL

Concerns about the trial penalty are not limited to academics and other observers of our criminal justice

system. In 2017, Judge Joseph Goodwin of the U.S. District Court for the Southern District of West Virginia rejected

a plea in an otherwise routine drug case, stating that:

secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for

the law and deterrence of crime. The bright light of the jury trial deters crime, enhances respect

for the law, educates the public, and reinforces their sense of safety much more than a contract

entered into in the shadows of a private meeting in the prosecutor’s office.

14 / New York State Trial Penalty Report

The Fourth Circuit upheld this decision in 2019, though it noted that the court might have abused its

discretion had it rejected the plea based primarily on the government’s frequent use of the practice.

Judge

Goodwin rejected another plea on similar grounds in 2018.

He is not alone: in 2014, Judge Jed Rakoff of the U.S.

District Court for the Southern District of New York wrote that “[t]he Supreme Court’s suggestion that a plea

bargain is a fair and voluntary contractual arrangement between two relatively equal parties is a total myth: it

is much more like a ‘contract of adhesion’ in which one party can effectively force its will on the other party.”

The proliferation of convictions secured through plea agreements

not only undermines the public perception of the legitimacy of

the criminal justice system but can have disproportionate impacts

on people of color. For example, one study of the Manhattan

District Attorney’s office found that, in the plea negotiation stage,

Black defendants were significantly less likely than white

defendants to receive offers of reduced charges and more

likely to receive sentence offers involving prison time.

TRIAL

In 2019, Judge Rowan Wilson of the New York Court of Appeals also raised concerns about how pleas

operate in New York State. Dissenting in a case on the waivers of appeal rights that often are required by the terms

of a plea agreement, he noted that:

The game is not worth the candle. That is not to say this is a game: for many defendants, the

harsh and chilling effect of appellate waivers results in the deprivation of their constitutional and

statutory rights, far from anything one could, other than with great irony, call a game. Rather,

our Court’s tortured jurisprudence on appellate waivers has wreaked havoc on the lower courts,

district attorneys, defense counsel and defendants, and is not worth any of the hypothetical

benefits purportedly bestowed by appellate waivers.

The proliferation of convictions secured through plea agreements not only undermines the public

perception of the legitimacy of the criminal justice system but can have disproportionate impacts on people

of color. For example, one study of the Manhattan District Attorney’s office found that, in the plea negotiation

stage, Black defendants were significantly less likely than white defendants to receive offers of reduced charges

and more likely to receive sentence offers involving prison time.

Another study, set in Wisconsin, found that

white defendants without a criminal history were more than 25% more likely than Black defendants to have

a top charge dropped or reduced.

Because of this, “white defendants who face initial felony charges [were]

more likely than black defendants to end up being convicted of misdemeanors rather than more serious crimes.

Similarly, white defendants initially charged with misdemeanors [were] more likely than black defendants to be

convicted for crimes carrying no possible incarceration or not being convicted at all.”

A 2019 review of research

on racial disparities in the application of the trial penalty found similar issues, noting that Black defendants

were substantially more likely to be imprisoned than white defendants and were likely to face longer sentences

New York State Trial Penalty Report / 15

as well.

Based on this review, the article concluded that “[d]isparities with how the trial penalty is applied across

both courts and races add[] an additional layer of inequality and injustice” to the criminal justice system.

At the same time, however, for all its flaws, plea bargains also represent an important safety valve as

criminal sentences have become increasingly severe. As New York defense attorney Scott Greenfield notes, such

pleas are often the best way for those facing criminal charges to mitigate the impact of America’s increasingly

severe sentencing regime.

Judge Goodwin’s cases suggest just how difficult it is to address the trial penalty

productively — in one case where Judge Goodwin rejected the plea, the defendant appears to have been sentenced

to a longer prison term than the prosecution initially sought.

Simply eliminating plea bargains as a practice

could expose other such defendants to vastly increased sentences.

New York’s Disappearing Trial

As of 2019, 96% of felony convictions and 99% of misdemeanor convictions in New York State were the

result of guilty pleas.

These figures align with national trends. In Lafler v. Cooper, the U.S. Supreme Court noted

that 97% of federal convictions and 94% of state convictions were the result of pleas.

That trend continues to

today: according to analysis of fiscal year 2019 by the U.S. Sentencing Commission, more than 97% of federal

defendants plead guilty rather than go to trial.

Indeed, since 1990, criminal justice system activity in New York has been in decline. New York courts are

handling and resolving far fewer criminal justice matters now than they were in 1990. In 1990, New York courts

disposed of 476,162 justice-related matters (misdemeanors, felonies and violations) whether through conviction,

dismissal, or non-prosecution resolutions. Over the next three decades, this number fell by 22%, down to 373,070

dispositions in 2019. Felony and misdemeanor convictions also declined. In 1990, 56,197 felony convictions,

whether by trial, plea or other adjudication were obtained in New York. In 2019, only 25,450 felony convictions

were obtained, a 55% decrease. In the same period, misdemeanor convictions fell by 44%.

As of 2019, 96% of felony convictions and 99% of misdemeanor

convictions in New York State were the result of guilty pleas.

These figures align with national trends.

TRIAL

This general decrease does not fully account for the steeper decline in the number of misdemeanor and

felony trials in New York. As displayed in the table below, in 1990, there were 5,786 felony and misdemeanor trials

in New York State courts. By 2019, that number had fallen to 2,284, a 61% overall decrease in which felony trials

fell by 59% and misdemeanor trials fell by 62%. In New York City, the trends were slightly different though the

declines were equally dramatic: Total felony trials fell by 68%, from 2,157 in 1990 to 681 in 2019. Misdemeanor

trials fell by 57% to just 388 in 2019.

16 / New York State Trial Penalty Report

Trials In New York 1990 to 2019

Felony

Misdemeanor

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

2017

2018

2019

7,000

6,000

5,000

4,000

3,000

2,000

1,000

As expected, the decrease in trials was accompanied by a marked rise in guilty pleas. In 1990, 91% of

felony convictions in New York were obtained through a plea. Throughout the 1990s that percentage increased,

reaching 96% in 2001. This trend held for misdemeanors as well. In 1990, 96% of misdemeanor convictions were

obtained through guilty pleas. As with felonies, this number steadily increased throughout the 1990s. By 1996

and every year after, 98% to 99% of misdemeanor convictions were obtained by plea. In short, if someone is

convicted in New York State, whether of a felony or a misdemeanor, it is overwhelmingly likely that they were

convicted by plea rather than at trial.

New York State Trial Penalty Report / 17

DEFINING THE TRIAL PENALTY: PRACTITIONER

EXPERIENCES AND SURVEY RESULTS

Insights and survey responses from the criminal defense community make clear that the trial penalty exists

in New York State, and that it routinely dissuades criminal defendants from exercising their right to trial. The trial

penalty has two major, related consequences: (1) Individuals who exercise their constitutional right to trial face

severely enhanced penalties, a reality which, in turn, (2) discourages other individuals from putting the government

to its proof at trial or asserting other valuable pretrial rights, such as the right to receive discovery, including Brady

material,

conduct a defense investigation, and challenge the legality of the government’s investigatory practices,

including the collection of evidence. Practitioners told story after story about clients suffering these consequences:

some serving posttrial sentences far in excess of the plea offers they had received because they exercised their right

to trial; some who pled guilty rather than take the risk of a conviction and an excessive posttrial sentence.

Insights and survey responses from the criminal defense

community make clear that the trial penalty exists in

New York State, and that it routinely dissuades criminal

defendants from exercising their right to trial.

TRIAL

Survey and Interview Methodology

To conduct the survey, an initial outreach was made to the heads of all public defender offices and

administrators of assigned counsel plans throughout the state as well as to private practitioners through the

NYSACDL, New York Criminal Bar Association and NACDL (defense bar associations) to encourage broad and

varied participation. The survey included both narrow and open-ended questions, designed to obtain information

about whether, and how, the trial penalty impacts criminal defense practice in New York.

This online survey consisted of 13 questions about each attorney’s experiences with the trial penalty in

New York State. A copy of the survey and the responses are included in Appendix 2. The survey provided the

following definition of the trial penalty:

The “trial penalty” refers to the substantial difference between the sentence offered in a plea offer

prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and

pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty,

accused persons not only forego a trial, they must also surrender many other fundamental rights

which are essential to a fair justice system. Depending upon the jurisdiction, the accused often

must plead guilty solely to avoid pretrial incarceration, or, to avoid a vastly increased penalty,

v This refers to exculpatory material the government is required to provide to a defendant under Brady v. Maryland, 373 U.S.

83 (1963).

18 / New York State Trial Penalty Report

may be required to waive the right to discovery, access to Brady material, the right to conduct a

meaningful investigation, the right to challenge unlawfully seized evidence, the right to develop

mitigation, and the right to appeal.

In addition to these questions, the survey invited practitioners to provide narrative examples of cases

where they encountered the trial penalty. As follow-up, interviews were conducted with a select group of survey

participants to gather additional information about their experiences and cases they had handled that were

impacted by the trial penalty.

In total, 372 defense attorneys from 40 of New York’s 62 counties responded to the survey. The largest

numbers of replies came from New York, Kings and Queens counties, but members of the defense community

from across New York State contributed as well.

Substantial efforts were also made to obtain the prosecutorial perspective on these issues. These included

multiple letters to every district attorney listed in the District Attorney’s Association of the State of New York

to advise them of the project and to invite them to provide information on plea practices and policies in their

district. Follow-up inquiries by telephone message and email were also made to solicit their perspective. Only one

response was received across 62 counties. The District Attorney of Washington County agreed to respond verbally

in October 2019, indicating, in sum and substance, that the trials have not decreased in this county, but noting

that the office did not maintain statistics. A sample of the letters are included in Appendix 3.

The vast majority of defense attorneys reported experiencing

a trial penalty in their practice. In total, 94% of these

practitioners reported that the trial penalty plays a role in

criminal practice in their county.

TRIAL

Trial Penalty Prevalence

The vast majority of defense attorneys reported experiencing a trial penalty in their practice. In total, 94%

of these practitioners reported that the trial penalty plays a role in criminal practice in their county.

Most — 70%

— believed that the trial penalty was more prevalent in one class of case (i.e., in felonies or misdemeanors) than

others.

Of those who believed the trial penalty was more prevalent in one class case than another (i.e., the 70%

noted above), 93% believed that it was more common in felonies than misdemeanors.

vi Throughout, these case studies are ideniﬁed in the text in bold. In many of these cases, clients understandably wished to

keep idenifying details of the incident conﬁdenial either for reasons of privacy or fear of retribuion. Accordingly, where

possible, stories are ideniﬁed by the person’s name or by either a pseudonym or a name derived from some attribute of the

case, where conﬁdeniality was requested.

New York State Trial Penalty Report / 19

Consequences of Pleading Guilty

Before examining the systemic issues that contribute to the trial penalty, this report first addresses how

the trial penalty — and the resolution of a vast majority of criminal cases by guilty plea — negatively impacts the

justice system, principally by insulating criminal charges and law enforcement conduct from rigorous scrutiny.

The table below shows that large numbers of defense attorneys believed that the trial penalty manifested not only

in longer sentences but also in the waiver of pretrial, trial, and posttrial rights. The rights they identified most

often as being impacted by the trial penalty included the rights to appeal, make pretrial suppression motions,

receive discovery and conduct a meaningful defense investigation.

Large numbers of defense attorneys believed that the trial penalty

manifested not only in longer sentences but also in the waiver of

pretrial, trial, and posttrial rights. The rights they identified

most often as being impacted by the trial penalty included the

rights to appeal, make pretrial suppression motions, receive

discovery and conduct a meaningful defense investigation.

TRIAL

Ways the Trial Penalty Manifests Itself in Waivers of Rights

Right

Number and Percent of Responses Finding

the Trial Penalty Impacted This Right

Waiver of the Right to Counsel 9 (2.84%)

Waiver of Time to Conduct a Meaningful Invesigaion 75 (23.66%)

Waiver of Discovery 80 (25.24%)

Waiver of Pretrial Suppression Moions 112 (35.33%)

Waiver of Access to Experts to Develop Miigaion 26 (8.20%)

Waiver of Appeal 216 (68.14%)

Waiver of Prospecive Claims of Inefecive Assistance 10 (3.15%)

Waiver of Freedom of Informaion Act Requests 5 (1.58%)

This survey was conducted before January 2020, when New York State adopted legislation changing its

criminal procedure discovery laws. As discussed further below, these laws increased the discovery requirements

for prosecutors prior to making or withdrawing a plea offer. However, given the laws’ recent enactment, and the

2020 onset of the COVID-19 pandemic and its attendant disruptions of court proceedings, it is difficult to say

whether the new legislation will impact defendants’ willingness to waive their pretrial and trial rights.

These pretrial rights serve as an important check on government overreach — including overreach

by investigating agents and prosecutors. Pretrial motions test prosecutorial legal theories, as well as law

enforcement methods and conduct, primarily with respect to evidence-gathering activities. Trials also can test

these aspects of a government’s case, as well as the government’s proof. As the number of people exercising

their pretrial, trial and appellate rights continues to dwindle, criminal cases and law enforcement conduct are

increasingly protected from scrutiny.

20 / New York State Trial Penalty Report

Writing in September 2020, Barbara Zolot, the senior supervising

attorney of the Center for Appellate Litigation, noted that “appeal

waivers have become a standard condition of negotiated pleas in

New York State.”

As a result of these waivers, legal issues that

would be appealable under New York State law and precedent,

even when a defendant pleads guilty, such as trial court rulings on

motions to suppress, cannot be raised on appeal. As a result, concerns

like “police misconduct that would come to light upon appellate

review remain[] concealed,”

and defendants lose the benefit of the

possibility of such review in negotiating the disposition of their case.

TRIAL

Indeed, there is evidence that plea offers are strategically used by prosecutors to dispose of cases brought by

law enforcement officers whose credibility might not withstand cross-examination at pretrial hearings or at trial. For

example, in 2019, it was revealed that the Queens District Attorney’s Office “had built its own office credibility database,

collecting substantiated misconduct allegations, criminal matters, adverse credibility findings and civil lawsuits” with

respect to the law enforcement officers handling its cases.

Former prosecutors from the office reported to news outlets

“that such lists are used to help DAs push for early plea deals — without disclosing officers’ problems to defense.”

Defendants also relinquish their right to appeal their convictions when they plead guilty, as plea offers

are typically structured to require a waiver of the right to appeal as part of the agreement. Writing in September

2020, Barbara Zolot, the senior supervising attorney of the Center for Appellate Litigation, noted that “appeal

waivers have become a standard condition of negotiated pleas in New York State.”

As a result of these waivers,

legal issues that would be appealable under New York State law and precedent, even when a defendant pleads

guilty, such as trial court rulings on motions to suppress, cannot be raised on appeal. As a result, concerns like

“police misconduct that would come to light upon appellate review remain[] concealed,”

and defendants lose the

benefit of the possibility of such review in negotiating the disposition of their case.

In addition to the appellate waivers typically required by plea agreements, New York courts have also

determined that certain postconviction collateral challenges are automatically waived if a defendant pleads

guilty. For instance, defendants who enter guilty pleas are barred from filing postconviction claims for actual

innocence unless they can support their claim with DNA evidence.

New York courts also have refused to grant

appeals based on violations of defendants’ statutory rights where the defendant entered into a guilty plea. As

New York’s highest court, Court of Appeals, explained in People v. Taylor in reaching this conclusion, even where

the violation “invoke[s] a statutory right [that] . . . bears directly on the defendant’s factual guilt,” the guilty plea

“remove[s] this issue from the case” and the defendant “cannot resuscitate it on appeal.”

Decisions barring postplea appeals emphasize efficiency and finality.

For example, in People v. Tiger, the

Court of Appeals noted that “[p]ermitting a collateral attack on a guilty plea . . . would have enormous ramifications

to the efficacy of our criminal justice system.”

Despite this, several New York judges have questioned whether these practices in fact promote efficiency

New York State Trial Penalty Report / 21

and finality. In People v. Batista, Judge Alan Scheinkman of the Second Department raised several challenges to

the purposed efficiency of plea waivers. First, he noted that in practice, even when pleas require that a defendant

waive the right to appeal substantive issues, the litigation does not end there. Rather, the question before the

Court then becomes whether a particular waiver was effective: in at least 380 cases in the last five years it has

been found not to be.

As a result, Judge Scheinkman noted that “[t]o the extent that appeal limitations are not

perceived as effective, their role in rendering convictions final will not be effective either.”

Judge Scheinkman

also noted that appellate reviews of waivers could actually be more time-consuming than the substantive issues

that a defendant had been forced to waive:

It is extremely time-consuming to parse through the transcripts of pleas in hundreds of cases and

to weigh the arguments presented in the briefs as to the validity or invalidity of appeal limitations

in the context of highly nuanced factual settings. By way of contrast, review of whether a particular

sentence is excessive is generally less time-intensive.

Judge Wilson, echoing Judge Scheinkman’s concerns, then went one step further, writing in People v.

Thomas that:

Rather than conserving judicial resources, appellate waivers consume the time of prosecutors,

defense counsel and the court in attempting to create a record that might satisfy our appellate

waiver jurisprudence. All that time and effort would be saved were appellate waivers banned.

While some Court of Appeals judges have expressed their disagreement with Judge Wilson’s position,

trends since Thomas suggest that New York’s waiver jurisprudence does consume immense judicial resources.

From Thomas in 2019 to January 2021, 90 waivers were invalidated by New York’s appellate divisions: in a single

case, People v. Bisono, the Court of Appeals invalidated ten waivers at once, a result New York attorney Paul

Shechtman described as “unprecedented.”

In barring appellate review of guilty pleas in the absence of

exonerating DNA evidence, the Court of Appeals may allow

wrongful convictions to stand. The National Registry of

Exonerations lists 15 defendants in New York who have been

exonerated in the last 15 years of crimes to which they pled

guilty.

Many of those prosecutions relied on information

provided by civilian witnesses or law enforcement officers that

was later discredited or disproved.

TRIAL

Moreover, any purported gains in efficiency must be weighed against the cost of such waivers. These

include the risk that violations of defendants’ constitutional rights may go unaddressed by the Court of Appeals,

or that innocent defendants may lose the ability to challenge their convictions. That is, in barring appellate review

of guilty pleas in the absence of exonerating DNA evidence, the Court of Appeals may allow wrongful convictions

22 / New York State Trial Penalty Report

to stand. The National Registry of Exonerations lists 16 defendants in New York who have been exonerated in the

last 15 years of crimes to which they pled guilty.

Many of those prosecutions relied on information provided by

civilian witnesses or law enforcement officers that was later discredited or disproved. For example:

◆ In 2015 and 2016, five inmates at the Auburn Correctional Facility in Auburn, New York, pled guilty to

promotion of prison contraband. Each claimed that the weapons had been planted on them by one of

the prison guards. Two of the inmates were due to be released when these new charges were brought,

but they knew if they went to trial, it would be their word against the guard’s. All five pled guilty, and

four of them received additional sentences between one and a half and four years, to run consecutive

to the sentences they were currently serving. Two weeks after the fifth inmate pled guilty, the Cayuga

County District Attorney revealed that the same guard had admitted to planting a weapon on another

inmate at the Auburn prison. Based on that admission, that other inmate’s conviction was vacated, and

the district attorney subsequently asked the Cayuga County Supreme Court to vacate the convictions

of these five inmates as well.

◆ In 1963, 29-year-old Paul Gatling, a Black man, was arrested for the murder of a white man in Brooklyn.

A convicted felon told police that he had seen Gatling near the scene of the crime immediately after

the shooting. The victim’s wife, who had been home at the time of the shooting, told police that a Black

man with a shotgun had demanded money and then shot her husband when he refused. Initially, she

was not able to pick Gatling out of a lineup but later identified him as the gunman while he was being

questioned by police. Although he faced the death penalty, Gatling originally decided to go to trial. But

in the middle of his trial, Gatling pled guilty and was sentenced to 30 years to life. His sentence was

eventually commuted, and he was released on parole in 1974. Forty years later, Gatling sent a letter to

the Brooklyn District Attorney who had formed a Conviction Review Unit to re-investigate credible

claims of innocence. The unit uncovered evidence that had not been disclosed to Gatling’s defense

counsel at the time of trial: the victim’s wife had been having an affair with a man who was boarding

at her house and that man told detectives that he had heard her threaten to kill her husband (the

victim) if he continued to beat her. Based on that evidence, the prosecution moved to vacate Gatling’s

conviction and a court granted that motion in 2016.

◆ Following a 2012 explosion from a ruptured gas line in West Haverstraw in which four people were

badly injured, the Rockland County District Attorney charged the owner of the excavating company

that had caused the rupture. Fifty-three-year-old Fidel Padilla claimed that he had contacted the utility

companies to allow them to go to the property first and mark the location of gas and electric lines

before they began digging. After that conversation, he waited several days and then only dug in areas

where there were no markers. Nevertheless, he agreed to plead guilty to a felony count of reckless

endangerment. But prior to sentencing, he filed a motion to withdraw his plea after learning that the

state agency overseeing utilities had cited the gas company for marking the wrong spot at Padilla’s

excavation site. The citation had been issued a week before Padilla entered his guilty plea, but the

prosecutor had not disclosed it. Padilla also said that the prosecutor had threatened to file charges that

could result in his deportation if he did not plead guilty. The Rockland County Supreme Court Judge

granted his motion and dismissed the charges.

New York State Trial Penalty Report / 23

According to the National Registry of Exonerations, 2754

wrongful convictions have been identified since 1989, and of

those, 569 defendants, or 20% of the total, pled guilty.

Similarly,

of the 375 people that have been exonerated with DNA evidence

since 1989, 44, or 12% pled guilty to crimes they did not commit.

TRIAL

These cases illustrate the troubling consequence of a system that overemphasizes convictions through guilty

pleas. According to the National Registry of Exonerations, 2754 wrongful convictions have been identified since 1989,

and of those, 569 defendants, or 20% of the total, pled guilty.

Similarly, of the 375 people that have been exonerated

with DNA evidence since 1989, 44, or 12% pled guilty to crimes they did not commit.

When the vast majority of

defendants relinquish fundamental rights designed to challenge and test the government’s proof before, during and

after trial on appeal, convictions based on evidence that is unconstitutional, insufficient or even false can result.

Pleas also have a negative impact on the broader justice system. If defendants, even guilty ones, waive trial,

it becomes far more difficult to police constitutional violations like illegal searches that may have contributed to

their arrest or imprisonment. For example, Barbara Zolot identified several cases of police misconduct that were

only brought to light on appeal, including manufactured testimony, racially biased policing, and unconstitutional

searches.

Similarly, reports from former prosecutors suggest that one of the uses of the officer credibility

database assembled by the Queens County District Attorney’s Office might have been to push for early pleas

without disclosing officers’ credibility issues to the defense.

Such practices might be more difficult if officers

were subject to trial scrutiny. Together, these findings support Judge Wilson’s conclusion that because of plea

bargains and appeal waivers, “defendants are chilled from pursuing their fundamental rights to appeal, while the

public’s confidence in the system’s fairness wastes away.”

Factors Contributing to the Trial Penalty

The Task Force identified four primary aspects of New York’s criminal justice system that contribute to

and deepen the impact of the trial penalty: prosecutorial conduct, judicial conduct, sentencing laws and excessive

caseloads.

Prosecutorial Conduct

Prosecutors play a key role in driving the trial penalty in New York State. Indeed, when defense attorneys

were asked to rate the primary driver of the trial penalty, more than 37% selected “a culture of practice by

prosecutors.”

Since most cases are disposed of by guilty plea, “[f]or all intents and purposes, prosecutors

are the criminal justice system.”

They have virtually complete and unreviewable discretion to decide which

criminal charges to bring and when and whether to offer plea deals, which can exert tremendous influence over

a defendant’s decision on whether to go to trial. Prosecutors also make sentencing recommendations that can

influence judges’ decisions with respect to the appropriate penalties.

24 / New York State Trial Penalty Report

In making plea offers, prosecutors may threaten to

increase the severity of the charge or to add charges

if the defendant refuses to plead guilty.

TRIAL

Defense attorneys described a variety of prosecutorial policies and practices that contribute to the trial

penalty, including (1) aggressive charging, (2) contingent plea offers and waivers of pretrial rights, (3) late or

incomplete discovery, (4) penalizing motion practice, and (5) seeking much harsher sentences after trial.

Aggressive Charging

Prosecutors choose which charges to bring, a decision in which they have broad discretion. With this

discretion comes considerable leverage. In making plea offers, prosecutors may threaten to increase the severity

of the charge or to add charges if the defendant refuses to plead guilty. Frequently, the facts of a case may support

any number of charges, leaving prosecutors free to select, initially, more serious charges carrying higher penalties,

creating an opportunity to offer a plea deal to a lesser offense or sentence that the defendant is likely to take. Given

this flexibility, several practitioners reported that prosecutors will charge a felony in a case where the conduct

arguably warrants only a misdemeanor, because the risk of jail time exerts substantial pressure to plead guilty.

Furthermore, criminal defendants are often motivated to plead guilty due to unrelated external factors,

and prosecutors can leverage those factors in deciding what charges to pursue to increase the likelihood of a

guilty plea. For example, prosecutors can use the prospect of immediate release to pressure a defendant to plead

guilty: 36% of practitioners reported that one way the trial penalty manifests itself is through the use of bail to

leverage pleas — if a defendant does not plead guilty at the first appearance, bail will be set.

As one attorney

noted: “Bail is used to induce guilty pleas . . . [I]f you do not PG [plead guilty] to TS [time served] or some other small

sentence, bail will be set and you will spend more time in [jail] just waiting for your next court date.”

Likewise, a

term of probation in lieu of incarceration after prolonged detention awaiting trial may be offered late in the case

to induce a plea in exchange for immediate release from custody.

Other external factors may also lead those charged with crimes to plead, and prosecutors can leverage

those factors as well. As one practitioner reported, a key driver of the trial penalty is the “collateral consequences

for the client (time to litigate case, inconvenience of returning to court multiple times[,] enormous wait time in

court[,] etc.).” Another related the story of a survivor of domestic violence that illustrates the many pressures

defendants face that may encourage them to take a plea:

[She] also had immigration concerns. [S]he was pregnant and beaten by her spouse. She and I

met with the DA and she shared her history. The DA agreed she was a victim but the best they

would offer was an attempted reckless assault. If [the] client lost at trial, she would face prison or

probation and would lose her job and status in the country. Under this threat, without discovery,

she took the plea deal.

TRIAL

New York State Trial Penalty Report / 25

Renata Hill

In the summer of 2006, seven young black lesbian women traveled to Greenwich

Village from their homes in New Jersey for a night out. While they were walking down

the street, a man propositioned one of the women, who was just 19 at the time. After

she told him she was gay, the stranger threatened to rape the young women “straight,”

then physically assaulted the group. A fight broke out when the women tried to defend

themselves. Although it lasted only four minutes, the stranger received a knife wound and

was taken to the hospital.

All seven women were arrested at the scene and were charged with first, second-

and third-degree assault, and first- and second-degree gang assault. Video evidence

showed another unidentified man joining the brawl, and the women’s defense was that

the man actually stabbed the stranger. Nonetheless, the prosecutors accused Patreese

Johnson, the owner of the knife, of having inflicted the injury. So, in addition to the other

charges, they also charged her with second-degree attempted murder.

Bail was set for all the women, but most could not make bail. After spending some

time in custody, three of the women pled guilty to assault and were sentenced to six

months in jail and five years’ probation. The remaining four were offered plea deals, as

well, but they rejected them and chose to challenge the charges at trial. As Ms. Johnson

explained: “They said in order for me to take the deal I need to plead guilty, but I’m not

26 / New York State Trial Penalty Report

going to say that I’m guilty. I felt so confident I’m not pleading guilty, because I’m not guilty.

I defended myself. Let the people judge it.”

In the wake of the incident, the man told the press that he was the victim of a hate

crime and local and national media seized on his side of the story (the New York Times

headline read “Man Is Stabbed in Attack After Admiring a Stranger”). It is unclear whether

the jury was influenced by the media’s portrayal of the women, but all four women who

went to trial were found guilty, albeit of lesser offenses than the prosecution’s top charges.

Ms. Johnson was acquitted of attempted murder but was convicted of first-degree assault

and second-degree gang assault. The other three, Venice Brown, Renata Hill, and Terrain

Dandridge, were convicted of lesser degrees of assault and gang assault.

Consistent with their trial testimony, at sentencing, the women emphasized the fear

they felt during the altercation with the stranger: Just three years earlier, a 15-year-old

girl was killed during a strikingly similar incident in Newark, New Jersey, where the women

lived. The judge showed little sympathy for the women, however, expressing skepticism

that the stranger’s words posed any threat. He sentenced Ms. Dandridge to three and a half

years in prison, Ms. Brown to five years, Ms. Hill to eight years, and Ms. Johnson to 11 years.

On appeal, the Appellate Division found multiple flaws in the women’s convictions.

It reduced Ms. Johnson’s sentence from 11 to eight years. It ordered Ms. Brown and Ms.

Hill new trials because the trial judge had not properly instructed the jury on the defense of

justification. It dismissed entirely the charges against Ms. Dandridge, citing the lack of any

evidence that she had been involved in the brawl.

Yet while Ms. Dandridge’s record was ultimately cleared, no such relief was available

to the three women who had taken pleas. There was even less evidence against them, but

forced to choose between remaining in jail to await trial or pleading and being released in

less than six months, these three pled guilty. They will live the rest of their lives with felony

convictions.

Although Ms. Hill won her appeal, having once faced a prison sentence, this time she

took no chances. She was anxious to return to her young son, and, given the outcome of her

first trial, she was terrified by the prospect of receiving a large sentence if she again chose

to exercise her right to a new trial and lost.

New York State Trial Penalty Report / 27

Another attorney described a case with:

a 60-year-old home health aide with no prior law enforcement contact. After being arrested her

license was suspended. She’s been out of work for months and is struggling financially. Even

though she maintains her innocence, she cannot afford to await trial. The ADA is insisting she

complete an anger management program that costs $165. She will also have to pay $120 in court

costs upon the entry of her plea. My client feels obligated to do whatever just to resolve the case

and be able to return to work.

These kinds of challenges can all encourage defendants to take a plea, as Renata Hill and Father of Two

did in the cases described above and below.

In addition to overcharging, defense attorneys practicing in New York City noted that prosecutors fail to

adequately scrutinize cases presented to them by the New York City Police Department (NYPD) prior to charging.

One defense attorney related that essentially every case brought in by the NYPD is charged in Queens County.

Other research supports this observation: a study of prosecutorial practices in New York County found that,

between 2010 and 2011, 95.6% of cases brought in by police for screening were accepted for prosecution.

Even in the rare case where prosecutors acknowledge that their

cases lack sufficient proof, their practice is to wait for the court

to grant a defense motion to dismiss the charges based on the

untimeliness of the prosecution under the Speedy Trial Act.

TRIAL

Defense attorneys indicated that prosecutors appear to prefer to resolve charged cases rather than

evaluating the charges and refusing to prosecute those that are not meritorious. As one practitioner said: “[I]n

Manhattan the prosecutors will not dismiss a domestic violence case. You have to do a very strong proffer to get

a dismissal. Their practice is to run the speedy trial clock.”

Thus, even in the rare case where prosecutors acknowledge that their cases lack sufficient proof, their

practice is to wait for the court to grant a defense motion to dismiss the charges based on the untimeliness of the

prosecution under the Speedy Trial Act. Another defense attorney described prosecutors as “rarely if ever being

willing to dismiss unwarranted charges[. M]aking deals rather than reassessing credibility of their complainants

in cases where charges should be dismissed. Valuing conviction over all else.” Still another attributed the trial

penalty to prosecutors’ “[f]ailure to evaluate credibility of facts presented by police.”

The practice of employing charging discretion to extract a resolution even in doubtfully provable cases

exists even in misdemeanor cases involving innocuous infractions and extremely weak evidence. A recent article

on New York City misdemeanor practices gave an example of a young man arrested for theft of services, after

he used a discounted MetroCard reserved for disabled persons.

The young man explained that the arrest was a

mistake: He worked in social services and was accompanying a group of disabled people, helping them to swipe

their cards. The arresting officer mistook one of those swipes for the young man’s own. Even after seeing a letter

TRIAL

28 / New York State Trial Penalty Report

Father of Two

A father of two in his forties with no prior criminal record and who was the sole source

of income for three generations of family members was dining in a restaurant when he got

into an argument with his companion and scalding hot soup was spilled on her leg and arm,

burning her badly enough to require a skin graft. All indications were that the spill and burn

were likely an accident, and he voluntarily surrendered to police when he first learned of the

surprisingly serious injury caused by the hot soup. But prosecutors decided to charge him with

first-degree assault — an offense that would have required them to prove that he had used a

dangerous weapon to cause serious physical injury — as if he had used a knife or a gun. They

also would have had to prove that he intended to cause serious physical injury.

That charge carried a mandatory minimum sentence of five years in prison if convicted,

regardless of a spotless record and the man’s contributions to society. As the sole breadwinner

for his children and elderly parents, he could hardly afford the risk of prison for five years. On

the eve of trial, the prosecutor offered the client a plea: if he pled guilty to reckless assault (by

means of intoxication), the prosecutor would recommend a sentence of 90 days in prison (to

be served on weekends) plus five years’ probation, to which the trial judge agreed.

Unwilling to risk his ability to support his family if convicted of a five-year mandatory

minimum, the client accepted the plea deal. He was able to remain employed by serving his

sentence on the weekends, and ultimately due to his excellent compliance with the terms of

his probation his probation was terminated early, short of three years. Although he avoided a

lengthy prison sentence, he will be a convicted felon for the rest of his life.

New York State Trial Penalty Report / 29

from the young man’s former employer corroborating his story, the prosecutor refused to dismiss the case: “I can

tell you that we don’t dismiss cases. I mean, we do, but we have to have proof that he is not guilty.” Instead, she

offered an adjournment in contemplation of dismissal (ACD), which imposes a temporary mark on a person that

can be considered in future charging decisions if the defendant is arrested again.

Because the young man’s prior

$30,000 salary was too high to qualify him for public defender assistance, he would have had to hire a private

attorney if he wanted to defend the case. He had lost his job after arrest, and he would likely have had to wait a

year for trial. Even at trial, the judge might simply have believed the arresting officer’s story over his, and he would

have ended up with a permanent criminal record.

Weak cases involving minor purported infractions, like this one, should be declined by prosecutors.

But

where guilty pleas or agreements to conditional dismissals can be so easily secured due to the systemic issues

discussed above, prosecutors have little incentive to do so. Defendants know they face severe consequences for

rejecting a prosecutor’s offer. And once a guilty plea has been entered, the prosecutor’s evidence and theory of

the case will likely never be tested.

Survey responses provide further evidence that there is pressure

to plead guilty early, even before defendants can take advantage

of pretrial protections. Thirty-five percent of defense attorneys

stated that, in their experience, guilty pleas in felony cases

are generally entered before a judge hears any pretrial motions,

such as motions to suppress evidence or change venue.

TRIAL

Contingent Plea Offers and Waivers of Pretrial Rights

Not only do prosecutors have broad discretion to charge, they also have broad discretion to set the terms

and conditions of plea offers. These terms and conditions may place additional pressure on defendants to plead

rather than exercise their constitutional pretrial and trial rights. As an initial matter, prosecutors can condition

plea offers on immediate acceptance and penalize defendants who refuse to plead immediately, whether because

the defendant wants to present the case to a grand jury, are considering potential pretrial motions, or because

they simply need more time to consider an offer.

One interviewee described a case where the prosecutor offered a plea to a one- to two-year sentence initially,

but withdrew the offer because it was not accepted immediately. When the defendant tried to accept the offer the

next day, the prosecutor increased the sentence by one year. Another survey respondent noted that the “Albany

County DA has ridiculous AUO 1st [aggravated unlicensed operation of a motor vehicle] and Felony DWI offers,

always including jail time, and offers go up at each stage usually forcing a plea.”

Finally, one practitioner indicated

that in Kings County “after the hearings [with respect to pretrial motions, for example] there will be no offer.”

Survey responses provide further evidence that there is pressure to plead guilty early, even before

defendants can take advantage of pretrial protections. Thirty-five percent of defense attorneys stated that, in

30 / New York State Trial Penalty Report

their experience, guilty pleas in felony cases are generally entered before a judge hears any pretrial motions, such

as motions to suppress evidence or change venue. Another 11% said that guilty pleas are generally entered before

pretrial motions are even filed. Five percent said the pleas are generally entered before discovery is exchanged

.vii

And 34% said that guilty pleas are generally entered before charges are formally brought in an indictment.

viii

Fewer

than 8% of defense attorneys said that guilty pleas are entered in felony cases after pretrial motions are heard or

just before trial.

Results were only slightly higher in misdemeanor cases where around 12% of practitioners said

that guilty pleas are generally entered after pretrial motions are heard or just before trial.

For instance, one defense attorney related that a 16-year-old client accepted a plea offer to second-degree

manslaughter after the Dutchess County prosecutor threatened to withdraw the offer or add more charges if

counsel filed a motion to move the case to family court. The plea offer was conditioned on waiving the argument

so that it was not preserved for appeal.

Defense attorneys from other counties also mentioned that

prosecutors frequently make one-time offers or withdraw

offers if their clients insist on being indicted by a grand

jury or want to file suppression motions.

TRIAL

In certain circumstances, prosecutors can use plea negotiations to avoid submitting a case to the grand

jury. For example, until the 2020 election of a new district attorney, it was Queens County practice that prosecutors

would not make plea offers after a grand jury had indicted the defendant. That essentially meant that prosecutors

could shield charges from grand jury scrutiny by requiring a plea deal, if any, to be completed before presenting

the case before a grand jury. In response to a survey question asking for examples of prosecutorial policies and

practices that contribute to the trial penalty, 15 of the 21 Queens County practitioners who responded mentioned

this specific policy.

As one of them explained:

Prosecutors in Queens, by definition, will punish individuals for [insisting on] their indictment or

not waiving their indictment. The Queens waiver policy is literally an institutional effort to force

180.80 waiver [the right to be indicted within 120 hours of arrest] and discovery rights in order to

get the “opportunity” to negotiate a plea.

This policy is also significant because it allows Queens County to avoid postindictment discovery. New

York’s criminal procedure laws currently require prosecutors to turn over discovery materials 20 to 35 days after

vii It is possible that reforms to New York’s discovery law passed during the development of this report will change this pracice.

However, as also noted elsewhere, any impact of this discovery law is not relected in this report given the iming of that

law’s passage.

viii In this scenario, a prosecutor would require a guilty plea ater arrest and arraignment on a complaint but before a grand

jury has determined whether probable cause to indict exists. Alternaively, prosecutors may pressure a defendant to waive

the ime restricions on bringing an indictment in order to consider a “favorable” plea. In other words, if a defendant insists

on having his case heard by a grand jury, which in New York includes the right to tesify, a more favorable plea ofer is

withdrawn or withheld.

TRIAL

New York State Trial Penalty Report / 31

Queens County Woman

A first-time offender with no prior arrests or convictions was charged in Queens

County with burglary after she caught her husband cheating on her and took his safe

and drove off with it. After the husband called the police, the wife returned tearful

and apologetic. The matter could have been charged as a misdemeanor petty larceny

or not charged at all. Yet the prosecutor charged her with burglary, a violent felony in

New York.

While the prosecutor offered to reduce the charge to a misdemeanor if she pled

guilty, that offer was conditioned on the defendant waiving her right to be indicted

by a grand jury. Facing the potential of a jail sentence if she took the case to trial,

the defendant decided to accept the prosecutor’s offer, which included a potential

reduction to a disorderly conduct violation if she completed an anger management

program. But because her guilty plea still resulted in a conviction, the defendant lost

her job working with children and has been unable to find employment since. She was

also required to pay restitution to her husband, who claimed that money had been

removed from the safe.

When interviewed, her attorney expressed the wish that the client had allowed

the case to go to the grand jury as she would have testified and would have been a

good witness. But the risk of serving time in prison if she lost at trial was not worth

putting the state to its burden of proof.

32 / New York State Trial Penalty Report

an indictment or information,

depending on whether the defendant is in custody.

Thus, this policy has the

effect of forcing defendants to waive access to evidence they would otherwise have been entitled to.

The new Queens District Attorney elected in 2020 has pledged to end this policy and, as discussed below,

New York has implemented new discovery rules that may blunt the impact of this policy even if it is retained.

However, it remains to be seen whether and how effectively that pledge will be implemented. In any event, the

next district attorney could reinstate the policy, and other counties could adopt similar practices. Moreover, as

noted further below, some practitioners are skeptical that this policy will actually facilitate the greater sharing of

discovery materials due to the long-standing culture and practices that resisted such sharing.

Defense attorneys from other counties also mentioned that prosecutors frequently make one-time offers

or withdraw offers if their clients insist on being indicted by a grand jury or want to file suppression motions. The

concept of the “one-time” or “one-day” plea offer was specifically identified by attorneys in Westchester,

Oneida,

New York

and Kings counties

as contributing to the trial penalty. In Erie County, an attorney noted that “[o]ffers

are or may be withdrawn if there is not a plea before indictment, or after motions” while in St. Lawrence County,

a practitioner reported that there was a practice of “withdrawal of offers if [a] plea [is] not accepted.” One defense

attorney said that “[i]n NY County prosecutors flat out say that if you ‘do the hearings’ there will be no offer.” Another

from Dutchess County said that “[p]rosecutors often threaten that our clients will get consec[utive] sentences and

max sentences if they ‘force me to indict him.’”

And another from Kings County said that “[p]rosecutors will pull

offers as retaliation for defendants litigating suppression issues.”

Finally, one attorney reported that “[C]ayuga

[C]ounty dramatically increases the penalty on felonies if the DA has to respond to omnibus motions and discovery.”

These practices force defendants to choose between testing the prosecutor’s charges and evidence through pretrial

practice, or taking advantage of the only opportunity they may get to negotiate a plea bargain.

The pressure on defendants to plead guilty early is compounded

because New York law limits defendants’ guilty plea options once

they have been indicted for certain types and classes of felonies.

TRIAL

The pressure on defendants to plead guilty early is compounded because New York law limits defendants’

guilty plea options once they have been indicted for certain types and classes of felonies. For example, under

section 220.10(5) of the New York Criminal Procedure Law, a defendant indicted for a Class A drug felony must

plead to at least a Class B felony, while a defendant indicted for a Class B violent felony that is also an armed felony

must plead to at least a Class C violent felony. As a result, defendants have strong incentives to accept plea deals

prior to indictment in order to avoid triggering such restrictions. The statute can serve as a tool for prosecutors

seeking to coerce pleas, but it also restricts the discretion of prosecutors who might otherwise be open to more

lenient resolutions once an indictment is issued.

The strictness of this regime makes New York an outlier: even

section 1192.7(a)(2) of California’s Penal Code, which limits the types of cases where a plea can be offered, includes

language that provides some flexibility in offering pleas based on the circumstances of the case.

ix An “informaion” is an alternaive type of charging instrument, like an indictment, that may be used in New York State.

TRIAL

New York State Trial Penalty Report / 33

Richmond County Contraband

A resident of Richmond County was arrested and charged with misdemeanor menacing

after being accused of waving a knife at a neighbor. This initial charge became the basis for a

search warrant of the defendant’s home. During that search, police discovered a number of

contraband items, including a large capacity ammunition device, gravity knives, throwing stars,

narcotics and untaxed cigarettes.

The man was charged with a selection of felonies and misdemeanors for this contraband.

The charge for possession of the large capacity ammunition device, a third-degree violent

felony, was the most serious. The defendant had no prior felony record, and none of the charged

offenses had a mandatory minimum sentence.

He was offered a pretrial disposition which would have released him almost immediately

into 12 months of treatment after he pled to one of the felonies and one of the misdemeanor

offenses. If he successfully completed the treatment, the felony plea would be vacated entirely

and the misdemeanor disposed of with only a conditional discharge. The man declined since he

was generally distrustful of law enforcement and averse to almost any plea.

His attorney also believed that trial was a viable option: There was a strong case for

suppression of all the contraband as the search warrant and search warrant application were

34 / New York State Trial Penalty Report

Late or Incomplete Discovery

Defense attorneys across several counties identified prosecutorial practices of delaying or withholding

discovery as a significant contributing factor to the trial penalty. Frustration with prosecutorial delays in providing

discovery was reported in Albany, Kings, New York, Rockland, Richmond, Queens, Orange, Westchester and

Monroe counties.

One attorney described frustration at the practice of “[d]iscovery dump[s] right before trial”

and “unnecessary protective orders”

that shield some items from discovery, while several others described delays

in the delivery of materials or withholding discovery prior to indictment. These practices hinder the defense’s

ability to conduct a robust pretrial investigation to identify potential defenses and increase the risk that late-

breaking discovery will contain additional incriminating information leading to a potential conviction and a

more severe posttrial sentence.

Some practitioners are skeptical that these discovery reforms

will meaningfully impact the trial penalty problem. One attorney

explained that judges frequently provide extensions of time to

prosecutors to comply with the new discovery requirements,

which may weaken the impact of the new law.

TRIAL

defective and overbroad. Also, other people lived and had lived in the home, including a deceased

relative who was known to have been a knife collector. Even if they lost the suppression motion

and the case proceeded to trial, his lawyer planned to argue that prosecutors could not prove

that the accused was the person who possessed the items. But one of the conditions of the plea

offer was waiver of the man’s right to appeal. If he accepted the plea deal, he would lose the

opportunity to appeal the suppression issue.

He exercised his right to trial. Unfortunately, the prosecutor had evidence that

undermined his defenses, but the prosecutor was not legally required to disclose it to defense

counsel until long after the offer was rejected. In the end, the man was convicted at trial of the

twelve possessory offenses, including the felony charge for possession of the high-capacity

ammunition device. He was sentenced to six years in prison, with the possessory offense

sentences all running concurrently. Although the sentence was six times longer than the

treatment mandate in the original non-jail treatment offer, the prosecutor portrayed it as an

act of mercy since that they could have requested a 29-year sentence had they argued that the

sentences should run consecutively.

New York State Trial Penalty Report / 35

Some of this may be an outgrowth of New York’s prior discovery laws. Until very recently, pleading

guilty early in a case usually meant that the defendant would do so without the benefit of discovery. Despite the

Supreme Court’s 1963 Brady v. Maryland decision, which required prosecutors to turn over evidence favorable

to the accused, New York has historically permitted prosecutors to wait until just before trial to share evidence

under the so-called “blindfold law.” That practice put defendants at a disadvantage since they had few ways to

assess the strength of the prosecution’s case as they considered a plea. This happened in the Richmond County

Contraband case where the absence of prompt discovery deprived the defendant of crucial information that

would have influenced his plea decision. The evidence disclosed in that late discovery appears to have led to a

conviction and a sentence that far exceeded the plea offer.

Defense attorneys report that prosecutors seek drastically

increased sentences following a trial, even where the defendant

is acquitted of the top count.

TRIAL

New York reformed its criminal discovery rules in January 2020, and it is possible that those reforms will

minimize, to some extent, the coercive nature of early plea offers. Under the new rules, if a prosecutor makes a

plea offer prior to indictment, he or she is required to provide the defense with all discoverable materials at least

three days before the offer expires. During later stages in the case, discoverable materials must be shared seven

days before the offer expires.

100

Thus, under the current rules, defendants who receive plea offers are supposed

to obtain “all items and information that would be discoverable prior to trial” before having to decide whether to

accept an offer.

101

According to the Center for Court Innovation, a New York–based think tank that studies ways to

improve court operations, defendants can waive the right to discovery before pleading guilty, “but the prosecution

cannot make such a waiver a condition of the plea.”

102

Some practitioners are skeptical that these discovery reforms will meaningfully impact the trial penalty

problem. One attorney explained that judges frequently provide extensions of time to prosecutors to comply

with the new discovery requirements, which may weaken the impact of the new law. While it is it is premature

to assess the ultimate impact of discovery reforms on the trial penalty in New York for the reasons stated above,

given the pervasive nature of the trial penalty, and a culture that sustains coercive plea practices, practitioners’

skepticism is understandable.

Prosecutorial Posttrial Sentencing Recommendations

Defense attorneys reported that prosecutors also contribute to the trial penalty by making posttrial

sentencing recommendations that are far harsher than their plea offers and by making clear in pretrial

negotiations that they are prepared to make such recommendations.

103

This means that clients considering

whether to plead or go to trial know that they likely face a more severe sentencing recommendation from the

prosecutor if they are convicted at trial. One noted: “I have only one time had a guilty verdict where the prosecutor

did not robotically ask for the maximum, even where significantly lower plea bargains had been offered.” Another

36 / New York State Trial Penalty Report

TRIAL

Victor Gutierrez

Victor Gutierrez was charged with attempted murder in the second degree after

becoming involved in a bloody altercation during which multiple members of his girlfriend’s

family sustained stab injuries from a knife. There were conflicting accounts of what

happened during the incident. According to the family, Mr. Gutierrez arrived at their home,

wielding a knife, and began to attack the family. Mr. Gutierrez maintained that he was at

the bottom of a dog pile as multiple family members attacked him using household items

as weapons, including a knife wielded by the girlfriend’s father.

The knife that Mr. Gutierrez allegedly used did not have his DNA or any blood on

it. In fact, it was recovered in the corner of the kitchen behind the washing machine, with

nobody being able to explain how it got there. Meanwhile, police photographs showed a

second knife in a pile of other items that the family had been using to attack Mr. Gutierrez,

but this second knife was never recovered or tested.

Despite the apparent deficiencies in its case, the Richmond County District

Attorney’s office charged Mr. Gutierrez with attempted murder in the second degree, in

New York State Trial Penalty Report / 37

stated “I have tried two [class] B misdemeanors where the offer went from time served to a request of 60 days jail

post-conviction, for no reason other than going to trial. On the other end, I tried a homicide where the prosecutor

requested essential[ly] triple the life sentence after a trial where before the offer was one life sentence.”

104

This phenomenon does not arise because — or at least not solely because — trial reveals additional facts that

justify a higher sentence. As one practitioner explained, prosecutors “ask[] for significantly increased sentences

after trial, even when facts have not come out at trial that would justify an increase in their recommendation.”

105

Another noted that “[p]rosecutors in New York County believe if they prepare a case for trial then the ‘price’ goes

up. Therefore, the earlier your client pleads guilty, maybe the better.”

106

Practitioners and their clients recognize that prosecutors

are likely to ask for the maximum sentence after trial.

They also know that it is possible that such a sentence, even

on one of the lesser crimes they are charged with, may result

in a longer sentence than the plea they were offered.

All of this increases the incentive to take a plea.

TRIAL

addition to various assault and criminal weapons possession charges, all stemming from

this single incident. The maximum sentence for attempted murder at the time was 25 years.

Prior to trial, the prosecution made multiple plea offers, starting with 17 years in

prison. That decreased to 15 years, and then eventually to 12. At that point, having already

served two years in jail awaiting trial, Mr. Gutierrez was willing to plead guilty in exchange for

time served, but the prosecution would not agree to that. Mr. Gutierrez decided to exercise

his right to trial and he was ultimately acquitted of attempted murder. The jury found him

guilty only of assault and weapons possession.

Yet despite the murder acquittal, the prosecution requested a sentence of 32 years

— nearly three times longer than the last plea offer the prosecution had made when the

offense at stake was attempted murder. Even more shockingly, the judge felt that this was

not enough: he ordered Mr. Gutierrez’s sentence to run consecutively — 34½ years in total

and almost triple the prosecution’s last plea offer.

TRIAL

38 / New York State Trial Penalty Report

Ontario County Driver

A woman was arrested following a traffic accident and alleged to have run a stop A woman was arrested following a traffic accident and alleged to have run a stop

sign in Ontario County and accused of driving under the influence of illegal substances. She sign in Ontario County and accused of driving under the influence of illegal substances. She

was charged with Driving While Ability Impaired (By drugs), an E felony, and Misdemeanor was charged with Driving While Ability Impaired (By drugs), an E felony, and Misdemeanor

Assault as the other driver as well as she suffered injuries. Assault as the other driver as well as she suffered injuries.

The prosecutor made a pretrial plea offer: if the woman pled guilty, her sentence The prosecutor made a pretrial plea offer: if the woman pled guilty, her sentence

would be reduced to 60 days in jail followed by five years’ probation. Although she had a would be reduced to 60 days in jail followed by five years’ probation. Although she had a

prior conviction, the woman maintained that she was not impaired by drugs and refused prior conviction, the woman maintained that she was not impaired by drugs and refused

to accept a plea admitting otherwise. Her case was bolstered by a toxicology report that to accept a plea admitting otherwise. Her case was bolstered by a toxicology report that

revealed that, at the time of the accident, the defendant had only one drug in her system — revealed that, at the time of the accident, the defendant had only one drug in her system —

a medicine for which she had a prescription. The prosecutor refused to adjust the plea offer a medicine for which she had a prescription. The prosecutor refused to adjust the plea offer

and insisted that jail time was still an appropriate punishment. The prosecutor threatened and insisted that jail time was still an appropriate punishment. The prosecutor threatened

that all deals were off if she did not accept the offer.that all deals were off if she did not accept the offer.

When the woman ultimately turned down the prosecutor’s plea offer, and the Grand When the woman ultimately turned down the prosecutor’s plea offer, and the Grand

Jury indicted on the charge of Vehicular Assault, a Class D felony, which carries a sentence Jury indicted on the charge of Vehicular Assault, a Class D felony, which carries a sentence

of 2 ½ to seven years.of 2 ½ to seven years.

The woman exercised her right to trial and was acquitted on the felony counts. She The woman exercised her right to trial and was acquitted on the felony counts. She

New York State Trial Penalty Report / 39

Indeed, defense attorneys report that prosecutors seek drastically increased sentences following a trial,

even where the defendant is acquitted of the top count. For example, a defendant charged with murder and

assault who goes to trial and is acquitted of the murder and convicted of the assault might receive a more severe

sentence than if they had taken the pretrial plea offered when a murder conviction was still pending. Victor

Gutierrez experienced this: after being charged with murder and offered a 12-year plea, he went to trial and was

acquitted of the murder only to be sentenced to 34½ years on lesser assault and weapons possession charges. Thus,

the trial penalty exists even where the defendant prevails, in part, at trial.

The combination of these two factors helps drive the trial penalty: practitioners and their clients recognize

that prosecutors are likely to ask for the maximum sentence after trial. They also know that it is possible that such

a sentence, even on one of the lesser crimes they are charged with, may result in a longer sentence than the plea

they were offered. All of this increases the incentive to take a plea.

Judicial Conduct

Defense attorneys believed that judges also play a significant contributing role in the prevalence of the

trial penalty. More than 25% identified judges’ culture of practice as the most significant factor driving the trial

penalty.

107

In New York, judges are permitted to — and often do — participate in plea negotiations. Practitioners

observed that judges use their authority to coerce defendants to plead guilty with threats of higher sentences

was found guilty only of misdemeanor assault on a reckless driving theory, a conviction that was found guilty only of misdemeanor assault on a reckless driving theory, a conviction that

rarely carries a jail sentence. rarely carries a jail sentence.

According to her defense counsel, the typical sentence would usually involve drug According to her defense counsel, the typical sentence would usually involve drug

treatment or probation, this woman was sentenced to 60 days in jail and three years of treatment or probation, this woman was sentenced to 60 days in jail and three years of

misdemeanor probation — almost the exact same sentence she would have received had misdemeanor probation — almost the exact same sentence she would have received had

she pled guilty to the E felony charge before trial, except that the probation would have been she pled guilty to the E felony charge before trial, except that the probation would have been

longer for a felony. She received the same sentence for a misdemeanor after trial that she longer for a felony. She received the same sentence for a misdemeanor after trial that she

was offered pre-trial on a felony plea. At sentencing, the judge explicitly told the client that was offered pre-trial on a felony plea. At sentencing, the judge explicitly told the client that

she had gotten a break from the jury, so it was appropriate to impose the original plea offer she had gotten a break from the jury, so it was appropriate to impose the original plea offer

as the sentence.as the sentence.

Fortunately, the client’s entire conviction was overturned on appeal as the Court Fortunately, the client’s entire conviction was overturned on appeal as the Court

found a lack of evidence at trial to support reckless conduct. Had she taken the plea instead found a lack of evidence at trial to support reckless conduct. Had she taken the plea instead

of insisting on going to trial, she would have been branded with a felony conviction.of insisting on going to trial, she would have been branded with a felony conviction.

40 / New York State Trial Penalty Report

posttrial. Judges are also responsible for setting bail, which, as discussed above, can act as a significant incentive

to plead early rather than be required to make bail in order to be released. Additionally, judges have discretion in

imposing sentences and can use that discretion to penalize those who have exercised their right to a trial.

Judges’ Role in Plea Negotiations

Unlike many states, New York permits judges to directly intervene in plea negotiations between

prosecutors and defendants.

108

Judges are permitted to intervene in negotiations because, in theory, a judge’s

involvement can lead to fairer outcomes. Judges are ostensibly neutral third parties who can restrain prosecutors’

expansive discretion and discourage bad faith negotiating tactics. However, New York criminal procedure rules

provide scant direction or restriction with respect to judicial conduct during plea negotiations.

109

Furthermore,

judges are not required to serve as a check on prosecutorial overreach.

Judges have the power under New York State law to dismiss charges “in the interest of justice.”

110

However,

as one researcher noted: “Courts have concluded that this power must be ‘exercised sparingly’. . . that is, only in

rare cases.”

111

A number of attorneys went even further, stating that judges do not use this authority at all, but

rather rubberstamp a prosecutor’s decisions and are reluctant to “undercut” the prosecutor’s discretion. As one

remarked, “Judges act as an extended arm of the DA’s office. There is not even an illusion of impartiality. They go

along with recommendations more often than not.”

112

Practitioners identified various aspects of judges’ conduct that

contribute to the trial penalty, including “[j]udges threatening to

set bail if defendants don’t take [a] current deal,”

114

“threatening

higher sentences after trial,”

115

“[m]aking an offer available

only once, on the same day it is offered,” and “judges refusing to

entertain guilty pleas once hearings have started.”

116

TRIAL

Even more concerning, some defense attorneys observed that judges not only fail to challenge either

the charges or the proposed plea offer, but also pressure defendants to take pleas. When asked whether “judges

actively encouraging the accused to plead guilty through the use or threat of an enhanced penalty after trial”

was a factor that contributed to the trial penalty, 178 attorneys, about 72% of those who answered the survey

question, said it was. Fifty-one of those 178 described this as one of the most significant factors driving the trial

penalty in their county.

113

Defense attorneys’ reports of judges’ role in the sentencing process were consistent with their observations

of prosecutors’ practices. Kareem Devaughn faced extraordinary pressure to accept a plea offer from his presiding

judge. In that case, Mr. Devaughn’s counsel explained that the judge took the position that the plea offer was too

lenient. The judge also set a deadline for acceptance of any plea. Practitioners identified various aspects of judges’

conduct that contribute to the trial penalty, including “[j]udges threatening to set bail if defendants don’t take [a]

current deal,”

114

“threatening higher sentences after trial,”

115

“[m]aking an offer available only once, on the same

day it is offered,” and “judges refusing to entertain guilty pleas once hearings have started.”

116

TRIAL

New York State Trial Penalty Report / 41

Kareem Devaughn

Following an extensive investigation, 41 residents of the Poughkeepsie and Kingston

area were arrested in a takedown of a cocaine-trafficking ring. Kareem Devaughn had not been

involved in the larger operation but had supplied drugs locally. He surrendered to police in the

takedown and was charged in a Dutchess County state court with conspiracy to possess with

intent to distribute and conspiracy to distribute cocaine.

The prosecutor offered him a plea to 10 years’ incarceration. Mr. Devaughn declined

the initial offer, as he was hoping for a maximum sentence of six years. The parties continued

to negotiate and seemed to be on the verge of a plea deal somewhere between seven and

eight years.

Amid negotiations, however, the parties met with the presiding judge, Judge Edward

McLoughlin, who indicated that he believed the initial plea offer was far too lenient. Instead, he

proposed that the offer should be 10 years for the drug charge plus an additional, consecutive

five years for a gun charge. Judge McLoughlin also pressured the parties to resolve plea

negotiations before January 1, 2020 — the date New York’s new discovery rules were due to

go into effect. He indicated that he would not accept any plea agreements made after that date

and that any sentence at trial would be far, far harsher than even his suggested 15-year “cap.”

The prosecutor then withdrew the initial plea offer.

Facing this extreme pressure and fearing an even worse trial penalty if convicted,

Mr. Devaughn ultimately capitulated, accepted a negotiated plea offer to 10 years. He never

received discovery nor learned the extent of the evidence, if any, against him. Mr. Devaughn

did not want to plead guilty, but he felt as though he had no other reasonable alternative given

what the judge had said about his case.

42 / New York State Trial Penalty Report

There are also other ways that a judge may signal his or her belief that pleading guilty is the defendant’s

best option. For example, a recent article highlighted a representative example where “a judge told a 17-year-

old defendant in a marijuana case . . . that if he did not take a plea deal, which involved no jail time, he would

be ‘coming back and forth to court over the next 18 to 24 months.’”

117

Suggestions from a judge, particularly to

a younger defendant with less experience in the criminal justice system, may be especially influential and may

prompt a defendant to plead guilty.

Moreover, judges’ comments during plea negotiations are usually shielded from scrutiny. Although

the State Commission on Judicial Conduct has repeatedly admonished judges for threatening higher posttrial

sentences during plea negotiations, the law sets a high bar for when judge’s comments are so coercive that

the judge has committed error that requires resentencing.

118

Under current New York State law, a judge may

not explicitly threaten that a heavier sentence will be imposed posttrial. But nothing prevents the judge from

commenting on the sentence a defendant is likely to receive posttrial.

Two Appellate Division cases highlighted by the State Commission on Judicial Conduct’s 2013 Annual

Report illustrate this fine-line distinction. In People v. Stevens, the First Department criticized a judge who noted a

posttrial sentence of “25 to life” and told the defendant “[i]f you’re convicted after trial . . . that’s what you’re going

to get.”

119

That comment apparently amounted to “outright coercion”

120

that merited resentencing the defendant.

However, in People v. Cornelio, the First Department held that a judge’s comments were not coercive when he told

the defendant that he faced “a possible 100 years in prison,” and then added that “based on the facts known to

[him, the judge] would not hesitate to impose” that sentence.

121

Thus, while a judge cannot threaten a specific

sentence, he or she is not legally prohibited from informing a defendant about what a maximum term might be

and stating that the judge is fully prepared to impose it.

When asked to provide specific examples of judicial practices

impacting the trial penalty, nearly a quarter of those who

responded identified judges’ practices of threatening harsh

and even maximum posttrial sentences.

TRIAL

In any event, fine distinctions between a “threat” to impose a specific sentence and a comment concerning

a sentence that may be imposed are likely irrelevant most criminal defendants, who are likely to view both

statements as equally coercive. Defense attorneys cited a range of comments from judges that they believe unduly

influence defendants’ decisions during plea negotiations, including comments that do not qualify as explicit

threats regarding sentencing. An attorney from Queens County said that “[o]ften, judges will reiterate the worst

parts of the case acting and speaking to defendants as if they are already guilty. This is usually not informative

but often feels like a scare tactic to force a plea.”

122

Another from Kings County described “[j]udges regularly giving

lengthy lectures on what could happen if they go to trial and using the maximum sentences as a deterrent for trial

. . . insisting on sidebars before hearings and trials commence[] so clients feel colluded against when the judge

then reiterates the risk.”

123

Another from Westchester County cited “suggestions being made that [the] client is

better off pleading guilty than risking trial.”

124

New York State Trial Penalty Report / 43

Explicit threats of severe and maximum sentences are prevalent. When asked to provide specific examples

of judicial practices impacting the trial penalty, nearly a quarter of those who responded identified judges’ practices

of threatening harsh and even maximum posttrial sentences. As one defense attorney from New York County

noted, “[j]udges routinely threaten defendants that after trial they would be facing up to the maximum sentence

permissible by law, including consecutive time, to extract guilty pleas, even when the chances of a defendant actually

getting the maximum are slim.”

125

Another from Dutchess County noted that “[o]ne of our felony judges make[s]

clear the [defendant] will be punished for filing motions, forcing pleas[] prior to the receipt of any discovery at all or

risk consecutive max sentences.”

126

Still another attorney from Queens County noted that judges will reserve such

comments for off-the-record discussions, thus eliminating any evidence that they have acted improperly.

127

Thus, the involvement of judges in plea discussions appears to exacerbate, not alleviate, the concern that

those defendants who do exercise their constitutional trial rights will be subject to a trial penalty.

About 64% responded that “judicial manipulation of bail/pretrial

release determinations to induce guilty pleas” contributed

to the trial penalty in their county. Over half of those

said that they viewed this factor as significant or one of

the most significant factors driving the trial penalty.

130

TRIAL

Judges’ Discretion to Set Bail

Even before plea negotiations take place, judges can encourage pleas through their bail practices. People

who are unable to make bail have a strong incentive to accept plea offers so that they can be immediately released.

This is particularly true in misdemeanor cases, where the time spent in detention awaiting trial can far exceed

the potential sentence. According to the New York State Division of Criminal Justice Services, “around 80% of

the jail sentences imposed for misdemeanor convictions were less than 30 days, whereas the mean docket age

of misdemeanor cases commencing jury trial is over 400 days, and the mean docket age of misdemeanor cases

commencing bench trial is over 350 days.”

128

Another study found that detained defendants are 25% more likely

to plead guilty than similarly situated people who are released.

129

In sum, pretrial incarceration, particularly for

misdemeanors, makes it far more likely that criminal defendants will plead guilty.

One attorney described a client who spent almost two years in jail protesting his innocence before the

District Attorney’s office finally dismissed the charges. Despite testimony from the client’s coworkers and boss

corroborating his alibi, the prosecutor continued to pursue the case even as they offered more and more lenient

pleas to the point where the client could have left jail immediately if he had accepted. His determination to

maintain his innocence ultimately was successful, but many make the rational decision to plead guilty rather

than serve a lengthy period of pretrial incarceration. People are particularly likely to plea if prompt release is

necessary to meet financial or family responsibilities.

Defense attorneys discussed judges’ practices of setting exorbitant bail as a factor contributing to the

trial penalty. About 64% responded that “judicial manipulation of bail/pretrial release determinations to induce

TRIAL

44 / New York State Trial Penalty Report

Nicole Addimando

In September 2017, Nicole Addimando shot and killed her boyfriend after years

of physical and sexual abuse. She was arrested and charged with second-degree murder,

manslaughter, and criminal possession of a weapon. With no prior record and two small

children, she remained out on bond prior to trial.

The District Attorney’s office urged Ms. Addimando to take a plea and forgo a trial.

According to her attorneys, there were numerous plea discussions and prosecutors offered

her a guilty plea to Manslaughter 1st Degree with 12 years prison in exchange for her

guilty plea. Defense counsel were authorized to explore the State’s willingness to enter

into a plea with a considerably shorter sentence. Although plea discussions continued and

defense counsel were confident a plea could be reached for a sentence of less than 10

years, ultimately plea discussions failed and Ms. Addimando, believing she had acted in

self-defense particularly as a survivor of abuse, took her case to trial. She pled not guilty.

At trial, Ms. Addimando related a lifelong history of abuse from the time she was

a young child, and which had continued through several relationships. She recounted

numerous instances of physical and sexual violence by her boyfriend, including while she

was pregnant. She also testified that her boyfriend had threatened to kill her on the evening

of the shooting. In support of her defense, in addition to other evidence, she submitted

corroborating evidence including photographs depicting abuse and testimony of medical

professionals who treated her while the abuse was ongoing and who verified her injuries.

Based on her own testimony and that of a forensic psychologist, who testified that

Ms. Addimando had been a victim of extreme and severe intimate partner violence, Ms.

Addimando argued that her actions were necessary and justified. The prosecution presented

evidence challenging that defense and the jury ultimately rejected it and found her guilty of

second-degree murder and second-degree criminal possession of a weapon.

Before sentencing, Ms. Addimando’s attorneys petitioned the court to impose

a lesser sentence under the Domestic Violence Survivors Justice Act because she was a

New York State Trial Penalty Report / 45

guilty pleas” contributed to the trial penalty in their county. Over half of those said that they viewed this factor

as significant or one of the most significant factors driving the trial penalty.

130

Asked about specific judicial

bail policies that drove the trial penalty, defense attorneys identified “excessive bail” and threats to set bail if

defendants refused to plead as factors that drove the trial penalty.

131

Reforms to New York bail practices address only some of these concerns. In April 2019, New York passed

pretrial reforms that, among other things, limited defendants’ eligibility for cash bail, or preventive detention,

solely to those accused of the most serious offenses. In support of this policy, Human Rights Watch has noted

that “by limiting pretrial detention, fewer people will be pressured to plead guilty simply to get out of jail.”

132

April 2020 however, yielding to pressure to weaken these reforms,

133

the legislature expanded the categories of

crimes for which judges could set cash bail and added further conditions, such as a person’s legal history or legal

status as a “persistent offender” that would permit a judge to set bail.

134

Thus, bail practices are likely to remain

an important driver of the trial penalty, particularly in misdemeanor cases.

Judicial Bias in Sentencing

Perhaps the most common way that judges drive the trial penalty is by imposing harsh posttrial sentences,

often significantly higher than what was offered during plea negotiations. Indeed, when asked how the trial

penalty manifests itself, 88% of practitioners chose “significantly increased penalty if convicted after trial,”

victim of domestic violence, and the abuse was a significant contributing factor to her criminal

behavior. In support, the defense again offered evidence of a long history of physical, sexual,

and emotional abuse.

Dutchess County Judge Edward McLoughlin rejected this petition, finding that

sentencing Ms. Addimando under the normal sentencing range would not be “unduly harsh.”

He noted that, although he found the evidence “compelling” for both sides, “the defendant had

the opportunity to leave her abuser” and chose not to. At sentencing, he noted:

“…in many other cases there are plea bargains. There were very reasonable

offers to resolve this case both as to the degree and the sentence that this court

entertained, but there was ultimately no agreement between the parties and

the Defendant chose her Constitutional right to go to trial.“

He sentenced her to 19 years to life for second-degree murder and 15 years plus 5

years supervised release for the weapon, which by operation of law run concurrently.

When asked by reporters if she had any regrets about turning down the plea deal, Ms.

Addimando explained: “If I had taken a plea, I would have wondered every single day I served:

‘What if I spoke, what if I was brave?’ I was not willing to give up the chance to be free, to be

with my children.” Now, she may spend the rest of her life in prison.

TRIAL

46 / New York State Trial Penalty Report

David Garcia

In December 1997, David Garcia and an accomplice were charged with entering three

Brooklyn establishments armed with handguns and taking jewelry and personal belongings

from employees. Mr. Garcia was also charged with a fourth armed robbery at another jewelry

store a month later. Prosecutors accused him of having fired two shots at an employee. Although

Plexiglas had stopped the bullets, Mr. Garcia was charged with attempted murder and multiple

counts of armed robbery.

The charges were severed and set to be tried in two separate trials: one for the fourth

robbery and attempted murder, followed by another for the earlier three robberies. Mr. Garcia

elected to represent himself, and the court appointed stand-by counsel to assist him.

Before Mr. Garcia’s first trial, the Assistant District Attorney offered a plea deal: if Mr.

Garcia pled guilty to all four robberies, the prosecutor would seek a sentence of 15 to 30 years.

Mr. Garcia rejected the offer, went to trial, and was convicted of attempted murder and robbery

by the jury.

After the first trial, but before sentencing, the judge offered Mr. Garcia 20 years to cover

all the charged crimes if he pled guilty to the remaining charges. Mr. Garcia’s stand-by counsel

urged him to take the offer, warning that, if he insisted on going to trial, “you will surely never walk

out of prison again.” Mr. Garcia also rejected this offer, and chose to go to trial on the remaining

New York State Trial Penalty Report / 47

the highest selection rate of any answer to that question. When asked to identify specific examples of judicial

practices contributing to the trial penalty, more than a quarter of attorneys who provided examples mentioned

judges’ sentencing practices, often noting that judges will impose “exponentially longer” sentences

135

— even the

maximum sentence under the statute — posttrial.

After the prosecution put on its case, Rose was offered

a plea to three to nine years, which he refused. He was

convicted. Although he faced a mandatory minimum

sentence of 15 years, the judge sentenced him to the

maximum possible sentence of 25-years to life.

136

TRIAL

In one such example, Robert Rose was charged with killing his mother’s abusive boyfriend, after Rose

returned home to find the boyfriend on the stoop with a firearm. In the course of a struggle with the boyfriend,

Rose killed him with that firearm. Rose had no criminal record and voluntarily surrendered the following day.

He was released on bail due to an outpouring of community support, for the three-year period prior to trial. After

the prosecution put on its case, Rose was offered a plea to three to nine years, which he refused. He was convicted.

Although he faced a mandatory minimum sentence of 15 years, the judge sentenced him to the maximum possible

sentence of 25-years to life.

136

David Garcia, discussed above, faced a similar penalty when, after being convicted

at his first trial, the court offered him a 20-year sentence if he would plead guilty to other outstanding charges.

charges. The judge sentenced him to 50 years for the first conviction, even though he had just

made an offer of 20 years to cover all the crimes, including those that had not yet been tried.

After losing his second trial, Mr. Garcia was convicted of an additional eight counts of

robbery. At sentencing, the same judge stacked three more consecutive 25-year sentences

on him, for a total of 125 years’ incarceration: more than six times what he offered Mr. Garcia

before the second trial.

It was not until twenty years later, after Mr. Garcia had filed numerous motions in

state and federal court, that Judge Jack Weinstein of the Eastern District of New York ruled

that his sentence had been unconstitutionally vindictive. Judge Weinstein called the sentence

“an inappropriate expression of judicial anger.” “If 20 years could be said to fulfill legitimate

penological goals . . . then this sentence six times its promised length is excessive. There is no

apparent reason why 105 additional years imprisonment would be necessary to accomplish

acceptable correctional goals.” Due to the limitations on federal habeas corpus relief under

AEDPA, Judge Weinstein remanded the case to state court for further proceedings. Ultimately,

Mr. Garcia was sentenced to 35 years determinate, a sentence he is still serving today.

TRIAL

48 / New York State Trial Penalty Report

George Mims

George Mims was arrested and tried for two armed robberies, which occurred within

minutes of each other in a Bronx apartment building. Two young men, one armed with what

appeared to be a working pistol, followed a group of people, including a woman and three-

year old child, into an elevator, and then took money and jewelry at gunpoint. Immediately

afterwards, they robbed another group. The victims, while shocked, were unharmed. Of the

seven total victims, only two identified Mr. Mims from the police arranged line-ups and photo

displays. One of those two later admitted that she was never sure of her identification.

Though Mr. Mims did not match the description of the perpetrator (who was described

as being in his early 20’s while Mims was 30), he was investigated because at the time he

was on parole for possession of a weapon. He voluntarily surrendered upon learning of the

accusation.

At trial, Mr. Mims presented a solid alibi that he was at home with his wife. That alibi

was corroborated by his wife and two babysitters who were in and out of the apartment. All of

them said he was home all night. His home was several subway stops away from the location

of the crime. The two identifications — witness memory — was the only evidence connecting

Mr. Mims to the crimes. There was no forensic evidence, such as DNA or fingerprints; no

proceeds of the crime were recovered; no pistol was located; and no incriminating statement

linked him to the crime. Throughout the trial, and after, Mr. Mims steadfastly maintained his

innocence. Nevertheless, the jury convicted.

During the trial, he was repeatedly offered pleas to 15 years. Then, five minutes before

the jury returned a verdict, the judge offered him 10 years. Maintaining his innocence, he

angrily declined the offer. After the conviction, the judge imposed a sentence of 40 years,

quadruple the offer George received five minutes before conviction. Mr. Mims was 30 when

he was arrested. He is now 53, having served 23 years in prison and will not be eligible for

parole for another 11 years.

TRIAL

New York State Trial Penalty Report / 49

Provard Jones

Provard Jones was 19 when his father lost his job at a stone quarry in Jefferson County.

The financial stress his family faced, compounded by his mother’s announcement that she was

leaving them, led him to devise a plan with a friend to rob a local insurance office. But when the

two friends arrived at the office armed with a shotgun, the Geico employee had already left the

premises and gotten into her car. Upon being confronted, the woman sounded her car horn. Mr.

Jones panicked and fired the shotgun, fatally shooting her.

When he was arrested, Mr. Jones confessed immediately. He explained that they had

never intended to kill anyone; they had only planned to rob the woman. Nevertheless, the

Jefferson County prosecutor charged Mr. Jones with first-degree murder, which, at the time,

still carried the death penalty. However, the prosecutor offered to take the death penalty off

the table and agree to a 30-year sentence in exchange for a plea to murder.

The average maximum prison term for murder in state cases at the time was 20.8 years.

Moreover, Mr. Jones had no prior criminal history. But, facing the death penalty and the likely

prospect of an all-white jury, Mr. Jones, who is Black, took a plea to a sentence nearly 10 years

longer, rather than risk the prospect of a trial and death penalty. His codefendant, who was

white (but who was not the shooter), did have a prior criminal history. He was permitted to

enter a guilty plea to attempted murder and was sentenced to nine to 18 years.

Even though the Court of Appeals has since deemed the death penalty unconstitutional,

Mr. Jones cannot challenge the prosecutor’s leverage of that unconstitutional law. He is currently

serving his 23rd year in prison and will not be eligible for parole until 2029.

50 / New York State Trial Penalty Report

When he declined, and proceed to trial for a second time, he was sentenced to 125 years’ imprisonment. George

Mims was offered a 10-year plea five minutes before his conviction. After, he was sentenced to 40 years.

Some of those who responded believed that these lengthier posttrial sentences reflect a judicial bias

against those who chose to go to trial. One defense attorney from Queens County noted that some judges “after

getting [the] probation report on a guilty trial verdict, decide that because [the] client did not admit guilt (after

denying guilt at trial) they should get jail time, or [the] judge decides they didn’t like [the] defense excuses at trial

and give[] jail time.”

137

And another from Nassau County commented that “judges feel [trial] is a waste of their time

and [that they] should be punished.”

138

The impression that a judge is biased or apt to impose a harsh posttrial sentence can easily encourage

people to plead guilty, even if the defendant believes the plea offer is unfair. As one defense attorney from Kings

County explained, “Once guilt is proven, judges feel no constraints, and will sentence toward the high range almost

universally. I deal with mostly serious felonies, and any violent crime conviction garners very harsh sentences. As

I tell my clients when discussing plea bargains, ‘Judges are almost never criticized for harsh sentences after trial

— only lenient ones.’”

139

As a result, some judges cultivate a reputation for imposing harsh sentences, increasing

the likelihood that defendants appearing before them will forgo their trial rights due to the risk of an unduly

severe sentence.

Sentencing Laws

Defense attorneys saw New York sentencing laws as a significant cause of the trial penalty. Provard Jones,

who took a plea to avoid the possibility of sentencing under New York’s now-unconstitutional death penalty

statute, shows how harsh sentences can induce pleas. While New York no longer maintains the death penalty,

practitioners saw other severe sentencing provisions such as mandatory minimum sentences and sentencing

enhancements for repeat and persistent offenders as key drivers of the trial penalty.

Of the practitioners who weighed the significance of the various

factors contributing to the trial penalty, 77% identified mandatory

minimum sentencing laws as contributing to the trial penalty.

140

Forty-five percent rated such sentencing laws as significantly or most

significantly contributing to the trial penalty in their county of practice.

TRIAL

Mandatory Minimum Sentences

Mandatory minimum sentences are sentences that a judge is required by statute to impose. In other

words, a judge lacks the authority to sentence below the minimum established by the statute. These laws can

result in substantial sentences posttrial regardless of the individual circumstances of the offense. Thus, people

charged with crimes carrying mandatory minimum sentences are far more likely to plead guilty if presented with

an offer that does not carry a mandatory minimum.

TRIAL

New York State Trial Penalty Report / 51

George Martinez

In March 2006, George Martinez was arrested for burglary in the Bronx after police

found stolen property in his apartment. On the night of his arrest, Mr. Martinez told the

Assistant District Attorney that he had accompanied a man to an apartment building and

helped carry away stolen merchandise, but he had not entered the apartment. Mr. Martinez

also gave a written statement admitting this.

The grand jury indicted Mr. Martinez and charged him with burglary in the second

degree and related counts. As permitted by New York law, Mr. Martinez’s indictment did not

specify whether he acted as a principal or an accomplice to the burglary, but it did allege

that he had entered the apartment with the intent to commit a crime. Since second-degree

burglary is classified as a violent felony, this would count as Mr. Martinez’s third violent

felony. That meant that he could face a mandatory life sentence as a persistent violent felony

offender, even though he had committed no actual violence during the burglary.

The Assistant District Attorney offered Mr. Martinez a plea deal of five and a half to

eleven years. This included the potential for Mr. Martinez to leave prison on conditional release

after serving just over seven years. However, Mr. Martinez believed he could not be convicted

of burglary because he had never entered the apartment. At most, he thought he would be

convicted of criminal possession of stolen property, which he acknowledged committing and

which carried a maximum sentence of four years. He rejected the plea and went to trial.

It was not until the eve of trial that his counsel, at the urging of the judge, recommended

Creative Commons of Yankee Stadium drawing by Marty Fuller� (used under CC BY / removed "Yankee Stadium")

52 / New York State Trial Penalty Report

Of the practitioners who weighed the significance of the various factors contributing to the trial penalty,

77% identified mandatory minimum sentencing laws as contributing to the trial penalty.

140

Forty-five percent

rated such sentencing laws as significantly or most significantly contributing to the trial penalty in their county

of practice. As one practitioner noted, “High mandatory minimums discourage clients from going to trial even

on weak cases, even when the case is overcharged.”

141

Another commented that “minimums are used explicitly by

the prosecution and court to encourage clients to take prison sentences.”

142

This finding aligns with prior surveys

of defense attorneys that identify mandatory minimums as a major contributor to the trial penalty.

143

Numerous offenses carry mandatory minimum sentences in New York. Although misdemeanors, save for

certain weapons offenses, generally do not carry mandatory minimum sentences, several felony classifications

do. For example, Class A-I felonies,

which include not only first-degree murder,

144

but also possession of two

ounces or more of a controlled narcotics,

145

generally carry minimum sentences of at least 15 years; murder

charges carry a minimum of at least 20 years.

146

Class A-II felonies generally carry a minimum of three years,

though predatory sexual assault against a child carries a 10-year minimum.

147

Sentencing Enhancements for Repeat Offenders

Defense attorneys felt that New York’s system of mandatory minimum sentences and sentencing enhancements

also helped drive the trial penalty by giving judges and prosecutors another way to increase sentence severity posttrial.

New York’s sentencing laws allow and sometimes mandate the imposition of an enhanced sentence for repeat offenders.

Defendants charged with a second violent felony offense face a mandatory sentencing enhancement that increases

in severity based on the offense. For example, the minimum sentence for a first-time Class B violent felony conviction

is five years.

148

But, for a defendant convicted of a Class B violent felony who also has a prior conviction for a violent

felony, the minimum sentence increases to 10 years.

149

For a persistent violent felony offender — someone convicted

of at least two prior violent felonies — the minimum increases to twenty years to life.

150

x New York divides its criminal ofenses into classes, with Class A-1 Felonies being the most serious and Class E felonies being

the least serious. Below that, in roughly descending order of severity are Class A, B, and unclassiﬁed misdemeanors. Finally,

New York maintains a separate class of violaion ofenses that are less serious than either misdemeanors or felonies.

that Mr. Martinez accept the plea offer. Confused by that advice given his belief that he could

not be found guilty of burglary, Mr. Martinez again rejected the offer. He went to trial, still

basing his defense on the fact that he had never entered the apartment.

At the end of trial, and at the request of the Assistant District Attorney, the court

charged the jury that they could find Mr. Martinez guilty of burglary as an accomplice even

if they determined that he had never entered the apartment. The jury returned a guilty

verdict. Although both the prosecutor and judge had offered a sentence of five and a half

to eleven years even on the eve of trial, because of the mandatory minimum, Mr. Martinez

was sentenced to 17½ years to life.

TRIAL

New York State Trial Penalty Report / 53

Jordan Ellison

Jordan Ellison, who had a long history of petty larceny in Monroe County, was stopped

by police in the parking lot of a local Gap store with stolen merchandise. He was approached

by the police while still on mall premises and immediately complied with their request to drop

the merchandise. He did not resist arrest.

Because, just days earlier, he had violated a stay-away order at a local Macy’s, the

prosecutor was able to charge him with third-degree burglary, a felony.

The maximum sentence he could have received was seven years in prison, but the

prosecutor promised to seek a sentence of two to four years if he pled guilty. Moreover, the

court warned Ellison that he would be sentenced as a persistent felony offender if he went to

trial and lost, which would carry a minimum sentence of 15 years.

Undeterred, Mr. Ellison took his case to trial. When he lost at trial, consistent with his

pretrial warning, the judge concluded that Ellison was a persistent felony offender, sentencing

him to 20 years to life in prison for shoplifting — more even than the mandatory minimum.

An appellate court reduced the sentence to the 15-year minimum, noting that, even

considering Mr. Ellison’s long criminal record, “he is essentially a serial shoplifter who does

not engage in acts of violence.” The appellate court could not reduce the sentence further

because Mr. Ellison’s counsel at the time had not challenged the persistent felony offender

finding. As a result, he was still serving a sentence that was nearly four times higher than

what he would have received had he pled guilty. Following a second appeal challenging Mr.

Ellison’s sentence, the appellate court vacated the persistent felony offender determination

in the interests of justice and again reduced his sentence 5½ - 11 as second felony offender.

He was immediately released following the decision on his second appeal.

TRIAL

54 / New York State Trial Penalty Report

Jeffery Lowery

Jeffrey Lowery, a 55-year-old man, was on parole after having served several stints in

prison, when he was arrested for violating the Sexual Offender Registration Act (SORA). At the

time, Mr. Lowery was being regularly supervised by a parole officer, was subject to unannounced

investigations of his residence, and was being tracked 24 hours a day, seven days a week,

by a GPS-equipped ankle bracelet. Except for a single missed curfew check, Mr. Lowery was

compliant with every condition of his parole. He never missed an appointment with his parole

officer, and he reported to the Rochester parole office every 90 days to be photographed.

However, SORA also required him to report his address to local police every 90 days.

But because of past incidents with the local police, Mr. Lowery had been barred from meeting

his parole officer at the local jail, which happened to be at the same address where he was

supposed to report for SORA. Thus, all the circumstances suggested that his failure to report

was unintentional: he believed he was barred from contacting local law enforcement, and he

was already reporting regularly to his parole officer, who always knew his whereabouts, day and

night, based on the tracking device he wore.

Given the technical nature of the violation, the prosecutor offered Mr. Lowery a sentence

of one to three years if he pled guilty. Later at sentencing, the prosecutor admitted that he had

doubts about the charge:

Quite frankly, Your Honor, I didn’t believe we could prove the case at trial. This

was a highly technical case. He failed to appear for a photograph after being

directed by Sheriff York not to come to the jail. I felt it was a close case. I had

reasonable doubt in my own mind that it’s something a jury would in fact convict

New York State Trial Penalty Report / 55

Even where a defendant’s second or third conviction does not qualify as a violent felony, prosecutors

have the discretion to seek (and judges have the discretion to impose) a sentencing enhancement for second

and persistent felony offenders. Although these enhancements are not mandatory, they can result in harsh

sentences even for defendants charged with relatively minor offenses. Indeed, the penalties available under the

enhancements can increase a defendant’s potential sentence exponentially. Moreover, prosecutors and judges

have broad discretion in applying these sentencing enhancements. Jordan Ellison experienced this when, as a

result of a persistent felony finding, the two to four-year plea he was offered became a 15-year sentence after trial

and became 5 1/2 to 11 years after two separate appeals. Jeffery Lowery also faced a 15-year sentence when he went

to trial on a technical parole violation that might otherwise have carried a one- to three-year sentence.

Practitioners identified several ways these enhanced sentences contributed to the trial penalty. Some noted

that the laws themselves resulted in higher sentences posttrial. Others indicated that judges used their discretion

to impose sentencing enhancements in a manner that contributed to the trial penalty. One practitioner, asked how

judicial policy contributed to the trial penalty, suggested that there were “so few trials that [j]udges believe they are

almost required to enhance the sentence after trial for the ‘inconvenence’ [sic] of having to go through a trial.”

151

Judges were not the only groups defense attorneys suggested used enhanced penalties to facilitate the trial penalty —

as one attorney reported, the “Nassau DA’s office routinely recommends enhanced sentences after guilty verdicts.”

152

the defendant of. We thought he had a viable case to sell that to a jury. . . . That’s

why that plea offer was made because — short of losing all together and getting

nothing on Mr. Lowery.

Nevertheless, the prosecutor threatened that, if Mr. Lowery refused the pretrial offer, he

would pursue a persistent felony offender sentence, which would mean a minimum of 15 years

to life in prison if convicted.

Mr. Lowery rejected the offer, chose to exercise his right to a trial and was convicted.

True to his word, the prosecutor sought persistent felony offender status based on Mr. Lowery’s

past convictions for which he had already served 30 years in prison. During sentencing, the

prosecutor focused much of his argument on a decades-old assault during which a local police

deputy was badly beaten, which ostensibly barred Mr. Lowery from the location where he was

required to report. The prosecutor ignored Mr. Lowery’s recent rehabilitative record which did

not involve a single accusation of violent behavior for almost 20 years.

The judge agreed with the persistent felony offender status determination and sentenced

Mr. Lowery to 15 years to life, citing public interest as the preeminent concern. Neither the judge

nor the prosecutor explained why the public interest required a 15-year minimum sentence

when, prior to trial, the prosecutor had been prepared to offer only one to three years in prison

for a case concerning a single failure to report.

56 / New York State Trial Penalty Report

A final factor that defense attorneys said contributes to the

trial penalty are excessive caseloads. These put pressure on judges,

prosecutors and defense attorneys to encourage people to

accept plea offers and to avoid the time and resources required

to take a case to trial.

TRIAL

Excessive Caseloads for Judges, Prosecutors and Defense Attorneys

A final factor that defense attorneys said contributes to the trial penalty are excessive caseloads. These put

pressure on judges, prosecutors and defense attorneys to encourage people to accept plea offers and to avoid the time

and resources required to take a case to trial.

Judges are under pressure from within the judiciary and without

153

to move dockets quickly and to

reduce the backlog of pending cases before them. As part of New York State Chief Judge Janet DiFiore’s three-year

Excellence Initiative, judges were given “standards and goals” as benchmarks for resolving the cases on their

dockets.

154

For criminal cases, the “standards and goals” are case resolutions within 90 days for misdemeanors

and 180 days from filing of an indictment for felonies.

Numerous defense attorneys cited specifically the “standards and goals” under the Excellence Initiative

as a factor contributing to the trial penalty. Indeed, while prompt resolution of criminal cases is an important

constitutional right, and required by New York State’s Speedy Trial statute,

155

pressure on judges to resolve cases

quickly (and thereby avoid trials) may incentivize judges to discourage criminal defendants from exercising their

right to litigate cases up to and including a trial. A number of practitioners attributed the judicial bias against trials

to judges’ caseloads and the “standards and goals” they are expected to meet.

156

Thus, while the Excellence Initiative’s

focus on reducing the amount of time defendants must wait before their day in court offers is commendable,

practitioners’ experiences suggest that it is creating additional pressures that drive the trial penalty.

Some defense attorneys’ approach to plea offers also are impacted by their excessive caseloads. While some

practitioners denied that workload impacts their personal practice, many noted the pressure they feel from the

need to manage a large caseload. Some attorneys expressed concern about not having “enough time to investigate

their cases before they have to make crucial decisions about trial”;

157

“[l]ow pay for [assigned counsel] and LAS

[Legal Aid Society] Lawyers forcing them to handle too many cases”;

158

and the “inability to spend adequate time

on cases where exposure to jail is less than for others.”

159

One 2020 survey of judges, prosecutors, and defense

counsel similarly suggested that defense counsel played a role, and possibly a significant one, in encouraging

defendants to take pleas.

160

As one defense attorney put it:

Quite frankly, caseloads are much higher than they should be. People are not being paid fairly, cannot

afford to keep working at their jobs (particularly in public service) and leave for more lucrative

positions. This shifts the heavy burden of additional cases to the remaining attorneys who have at

least double the felony caseloads if not significantly higher. Investigators aren’t able to keep up with

TRIAL

New York State Trial Penalty Report / 57

Robert Chibatto

In May 2012, Robert Chibatto was arrested for reaching into the open window of a car

and stealing a messenger bag on the passenger seat. The messenger bag allegedly contained

a phone charger, camera, college ID, $30 in cash, some makeup, and a debit card, which the

victim cancelled on the same day and which was never used. Mr. Chibatto was arrested after

police identified him in a video.

The Manhattan Assistant District Attorney told Mr. Chibatto that if he pled guilty they

would recommend a sentence of two to four years. The arraignment judge offered Mr. Chibatto

a one and a half- to three-year sentence in exchange for his guilty plea. Mr. Chibatto declined

and instead chose to exercise his right to a trial. The core issue was whether the state could

prove there was a debit card inside the bag. If the state could not prove it, Mr. Chibatto would

face no more than a year in prison.

The only evidence supporting the existence of the debit card was the victim’s testimony.

But she admitted that she often used other purses to carry her possessions, and the judge

observed that the evidence “sound[ed] somewhat circumstantial.” The jury, however, credited

the victim’s allegations and convicted Mr. Chibatto of one count of grand larceny in the fourth

degree. That conviction counted as a Class E felony, even though the victim suffered no actual

loss because of the debit card theft.

Despite the minimal harm Mr. Chibatto had caused, the sentencing judge urged, and the

Assistant District Attorney recommended, a sentence enhancement based on Mr. Chibatto’s

status as a persistent felony offender, which carried a minimum sentence of 15 years to life.

Defense counsel argued against the enhancement, noting that Mr. Chibatto’s prior

offenses were primarily nonviolent, that the most serious offenses had occurred three

decades earlier, and that Mr. Chibatto had both mental and physical health problems.

58 / New York State Trial Penalty Report

caseloads. Attorneys and social workers aren’t able to keep up. All of this contributes to the penalty

because at some point something slips, or a case doesn’t get enough attention, or a vital piece of

information is missed. More money and more staffing are both required to ensure fair defenses.

161

Another practitioner noted the impact excessive defense caseloads can have on clients facing charges:

“Excessive caseloads for attorneys leads to [the] client’s belief that the attorney is too busy to handle the case and

too busy to adequately prepare their case for trial leading to pressure to enter a plea.”

162

While this evidence seemingly supports the position that the criminal justice system simply cannot handle

more trials, encouraging guilty pleas is not the only way to reduce caseloads and clear dockets: prosecutors could

decline to prosecute cases where the offenses are minor and the evidence is weak. Judges could also exercise

greater discretion to dismiss cases where they believe defendants have been wrongly or too aggressively charged.

Whatever value efficiency has to the justice system, that value does not supersede the right to a fair trial and

equitable sentencing practices.

xi One important mechanism for miigaing the impact of excessive caseloads would be ensuring the implementaion

and funding of reforms mandated by Hurrell-Harring v. New York, 15 N.Y.3d 8 (2010). That case established that indigent

defendants in ﬁve counies across New York were being deprived of consituionally adequate criminal defense

counsel. The resuling settlement mandated numerous changes in the funding of indigent defense in New York State.

In paricular, it required the state of New York to develop standards seting out appropriate workloads and caseloads

for indigent criminal defense counsel and mandated funding to ensure that workloads did not exceed those standards.

It also required counies to develop a plan to improve defense counsel access to invesigators and expert witnesses.

See generally, Hurrell-Harring Settlement and Implementaion Informaion, NYS Oﬁce of Indigent Legal Services (last

visited Jan. 19, 2021), https://www.ils.ny.gov/content/hurrell-harring-settlement-and-implementation-information;

NYS Oﬁce of Indigent Legal Services, A Determinaion of Caseload Standards pursuant to § IV of the Hurrell-Harring v. The

State of New York Settlement (2016). While this mandate was iniially only binding on the ﬁve counies who were party to

Hurrell-Harring, New York later extended these standards to all counies in the state. N.Y. Exec. § 832(4). These caseload

standards and the separate funding for the independent hiring of invesigators experts, once fully funded in 2023, could

enable cases to be more fully defended and more frequently tried.

Although presentence investigation reports corroborated Mr. Chibatto’s declining health, the

judge dismissed those concerns. While the judge signaled that even he did not believe a life

sentence was appropriate, the next lowest sentence available carried a maximum of four years,

and the judge did not believe that was long enough: “If there was something between seven

and twelve [years], we wouldn’t be here.” Thus, the judge determined to apply the persistent

felony offender enhancement and imposed a sentence of 15 years to life. Thus, an offense that

the arraigning judge thought merited one and a half- to three years suddenly became a 15-year

minimum, with the possibility of life in prison.

This was too much for the appellate court, which overturned the persistent felony

offender determination, noting that it was “an improvident exercise of discretion.” It then

reduced the sentence to two to four years. By that time, however, Mr. Chibatto had already

served more than four years in prison.

New York State Trial Penalty Report / 59

THE TRIAL PENALTY BY THE NUMBERS

An analysis of the limited available data supports the observations and impressions of criminal defense

attorneys concerning the trial penalty: those who take their cases to trial risk greater — potentially much greater

— penalties than those associated with their proposed plea offers. An analysis of trials in New York City using

data from two organizations, New York County Defender Services and Neighborhood Defender Services, shows

that many defendants who do take their case to trial run the risk of longer, and sometimes much longer, sentences

then they would have received through a plea. The results also suggest that younger Black defendants are more

likely to experience a trial penalty than their white, older counterparts.

xii

Individuals who go to trial frequently suffer worse outcomes

than they would have if they took a plea. In 66% of cases, an

individual received a more severe sentence than the one offered

as part of his or her plea offer: either a longer term of imprisonment

or a sentence with harsher non-imprisonment terms than they

would have received under their plea offer.

TRIAL

New York County Defender

Services and Neighborhood Defender

Services provided a sample of 79 cases,

xiii

all involving a plea offer that was declined

and a subsequent conviction on the

top count. This is a small sample, and

one concentrated in New York County;

therefore, the conclusions must be

considered with those limitations in mind.

But even this small sample suggests that

people in Manhattan are experiencing the

trial penalty: people who reject pleas and

go to trial frequently receive sentences

longer, and sometimes much longer, then

the plea that they rejected.

Individuals who go to trial

frequently suffer worse outcomes than

they would have if they took a plea. In 66%

xii Further informaion on the data and methods for this secion is included as Appendix 4.

xiii NYCDS and NDS were the only two providers who responded to the Project’s inquiries and indicated that they maintained

such staisics and were willing to share the data with the Task Force. The LAS of Queens responded posiively but given the

form of the archived ﬁles and ensuing pandemic we could not access the informaion.

Yes Trial Penalty

No Trial Penalty

Trial Penalty by Felony

and Misdemeanor

Felony

Misdemeanor

60 / New York State Trial Penalty Report

of cases, an individual received a more severe sentence than the one offered as part of his or her plea offer: either a

longer term of imprisonment or a sentence with harsher non-imprisonment terms than they would have received

under their plea offer. That 66% figure includes several misdemeanor cases where the maximum possible prison

sentence is one year. But the trial penalty is even more common where longer prison sentences are at stake.

In 89% of cases where the offer time was greater than four years, going to trial resulted in a penalty. Thus, an

individual who is offered a plea to a multi-year prison term faces an even greater risk of a longer sentence should

he or she go to trial.

Prison sentences for those subject to a trial penalty were longer, sometimes substantially longer, than

the plea offer they received. In this limited sample, the average increase in sentence length in cases where there

was a trial penalty was 3.48 years. This figure includes several misdemeanor offenses where the maximum

possible sentence was a year and where non-prison sentences like probation and required programming like

anger management can also be imposed in lieu of incarceration. This confirms findings from previous research

on New York City plea bargains showing that people who go to trial on misdemeanors, like those who go to trial

on felony charges, also receive longer or more severe sentences than those who plead guilty.

163

Comparison of Plea Offer to Sentence

Sentence Time (Years)

Offer Time (Years)

0 10 20 30 40 50

Trial Penalty?

No Yes

New York State Trial Penalty Report / 61

Where sentences involved imprison-

ment, and particularly sentences for felony

charges, which carry longer prison terms, the

trial penalty is often even greater. A statisti-

cal model exploring the relationship between

plea offers and sentences found that every

10% increase in the length of sentence in years

offered as part of the plea was associated with

a 9.6% increase in the resulting sentence. For

example, when the length of sentence offered

in the plea offer is one year, the expected result-

ing sentence will be about 1.6 years; when the

length of sentence offered is five years, the

expected resulting sentence will be about 7.5

years; and when the length of sentence offered

is 20 years, the expected resulting sentence will

be about 28 years.

The graph above reflects this: the black

line shows what the sentence would be if the plea

offer and trial sentence were the same. Each dot

is a case from the sample — the higher the dot is

above the line the greater the difference between

the plea that was offered and the sentence received. As the graph shows, as offer time increased, sentences received

after trial increased even more substantially. Thus, turning down plea offers involving long prison terms resulted in

even longer sentences after conviction at trial.

The data also showed a distinction between the risk of a trial penalty for jury trials as opposed to bench

trials: Individuals tried by jury experienced a trial penalty more often than individuals tried by a judge: 77%

of people who had a jury trial experienced a trial penalty compared to 48% of people who had bench trials.

Additionally, a trial penalty was more likely to exist when the offense was a felony: there was a trial penalty in

81% of felony cases compared to 52% of misdemeanor cases.

164

People who were less than 25 years old and Black were more

likely to receive a trial penalty than those were older or white.

While more data is needed to fully explore how the trial penalty

affects people of color, these initial findings raise the concerning

possibility that the trial penalty may have a greater effect on

communities of color.

TRIAL

Trial Penalty by

Type of Trial

Yes Trial Penalty

No Trial Penalty

Jury Bench

62 / New York State Trial Penalty Report

Statistical modeling in the sample also indicated that age and race may also impact who received a trial

penalty. Analyzing this data using a logistic regression model, a tool that helps analyze the relationship between

the trial penalty and various factors in the sample, showed that people who were less than 25 years old and Black

were more likely to receive a trial penalty than those who were older or white. While more data is needed to fully

explore how the trial penalty affects people of color, these initial findings raise the concerning possibility that the

trial penalty may have a greater effect on communities of color.

Thus, for the dwindling number of people who do choose to take their case to trial, the risks are substantial:

even the limited data available from Manhattan suggests that those who go to trial often experience longer

sentences than they would if they had taken a plea.

New York State Trial Penalty Report / 63

FIXING THE TRIAL PENALTY: PRINCIPLES

AND POLICY RECOMMENDATIONS

The findings from this report suggest that the trial penalty poses a serious threat to the integrity of New

York State’s criminal justice system. Accordingly, the NYSACDL Trial Penalty Task Force has developed as set of

principles designed to address this problem. These principles, in turn, have informed the development of a set of

policies and legislative recommendations to fix the issues created by the trial penalty and improve the functioning

of New York’s criminal justice system.

Principles

1. The trial penalty — the substantial difference between the sentence offered prior to trial versus

the sentence a defendant receives after a trial — undermines the integrity of the criminal

justice system.

2. No one should be punished for exercising her or his rights, including seeking pretrial release

and discovery, investigating a case, challenging law enforcement conduct, and filing or litigating

pretrial statutory and constitutional motions.

3. The decline of criminal trials erodes the oversight function of the jury thereby muting the voice

of lay people in the criminal justice system and also undercuts the role of appellate courts in

supervising the work of trial courts.

4. The decline of criminal trials — and attendant waivers of the right to appeal and the right to

challenge unconstitutional police action — undermines the oversight ability of courts and juries

to ensure law enforcement accountability.

5. The decline of criminal trials tends to encourage longer sentences thereby contributing to mass

incarceration, including mass incarceration of people of color and the poor.

6. Trials protect the presumption of innocence and encourage the government to charge cases based

on sufficient, legally obtained evidence to satisfy the reasonable doubt standard.

7. The decline of criminal trials impacts the quality of prosecutorial decision-making, defense

advocacy and judicial supervision.

8. The trial penalty creates a coercive effect which profoundly undermines the integrity of the plea

bargaining process.

64 / New York State Trial Penalty Report

9. Mandatory minimum sentences undermine the integrity of plea bargaining by creating a

coercive effect and undermine the integrity of the sentencing process by eliminating case-by-case

individualized evaluation.

10. Neither prosecutors nor judges should be permitted to use mandatory minimum sentences to

retaliate against a defendant for the decision to go to trial or challenge evidence.

Policy Recommendations

1. Mandatory minimum sentencing statutes should be repealed or subject to a judicial safety valve

in cases where the court determines the individual circumstances justify a sentence below the

mandatory minimum.

2. A judicial second-look statute should be enacted to enable a court to review lengthy sentences after

substantial service thereof to ensure that the sentences are proportionate over time.

165

3. Prosecutors should be prohibited from conditioning plea offers on a waiver of statutory or

constitutional rights necessary for a defendant to make an informed decision on whether to plead

guilty. These rights include a defendant’s right to seek pretrial release or discovery, the right to

investigate their case, or litigate pretrial motions.

4. NYCPL § 220.10(5) should be repealed because it limits the ability to resolve a case by pleading

guilty to a lesser charge.

5. The Code of Judicial Conduct should include an express prohibition against retaliatory or vindictive

sentences for a defendant who has rejected a pretrial plea offer and proceeded to trial.

6. Procedures should be adopted to ensure that defendants are not punished with substantially longer

sentences for exercising their right to trial or related constitutional rights. Posttrial sentences

should not disproportionately increase the pretrial plea offer solely because the defendant has

elected to proceed to trial.

7. Judicial or prosecutorial policies which prohibit pretrial plea dispositions on trial-ready cases

should be prohibited.

8. It should be unethical for a prosecutor to seek a higher sentence compared to the pretrial offer

based on the defendant litigating his or her statutory or constitutional rights, including the right

to trial.

New York State Trial Penalty Report / 65

9. Judicial pretrial disposition quotas should not be used as a metric by which judicial or systemic

performance is evaluated. Judicial performance should not be assessed by reference to disposition

rates nor should any judicial assignment determination hinge on the percentage of cases in a

judge’s docket in which evidentiary hearings or trials are conducted.

10. NYCPL § 710.70 should be amended to read “shall” instead of “may” to effectuate the legislative

intent to preserve issues in suppression motions for appeal even after a guilty plea and preserve

appellate review of pretrial decisions on motions.

xiv