Criminal Justice Insider

The world has fundamentally changed in the brief interval since the last blog post. People are confined to their homes with nearly all retail stores, bars, restaurants, schools, houses of worship and businesses with nonessential business operations are closed for the foreseeable future. The economy and the social lives of nearly all American citizens have all but stopped in the wake of COVID-19.

Amidst this period of chaos and readjustment, the state and federal criminal courts are figuring out how to best perform their indispensable task of administering justice while keeping the judges, courthouse staff, prosecutors, defendants and counsel safe and healthy. The following is a brief primer on the current status of criminal proceedings in New York state and federal courts.

New York State has substantially slowed, but not entirely stopped, most criminal proceedings. Pursuant to New York State Executive Order 202.8, as of March 20, 2020, all statutes of limitations under the criminal procedure law have been tolled through April 19, 2020. Accordingly, state prosecutors do not need to issue new indictments during this time period for fear that the statute of limitations might expire. Although not explicitly stated, this toll presumably applies to the time requirements to proceed to trial pursuant to CPL Sec. 30.30. The New York State court system has announced that it is not empaneling new juries, making it impossible for prosecutions to proceed to trial in any event.

The state criminal courts remain open for essential matters which include arraignments, bail applications, temporary orders of protection, resentencing of incarcerated defendants, and matters related to the Sex Offender Registration Act. Starting March 25, 2020, these essential proceedings will be virtual with the defendant appearing through Skype for Business from a central booking location determined by their COVID-19 status. All counsel and the court will appear by video-conference from their respective remote locations.

In the federal district court for the Southern District of New York, critical operations including new arrests, bail hearings, and arraignments are still occurring in-person. They are implementing social distancing measures such as designated seating and only one arraignment at a time in a multi-defendant case. Counsel may apply to appear by telephone, but the request is subject to the discretion of the presiding judge.

On March 16, 2020, all criminal trials that were scheduled before April 27, 2020 are continued indefinitely. However, trials that were in progress as of March 16, as well as the grand jury, would proceed as scheduled. Moreover, the period between March 16 and April 27 is excluded for purposes of the Speedy Trial Act (18 U.S.C. Sec. 3161(h)(7)(A)).

The COVID-19 pandemic is unprecedented in the modern era. The criminal justice system is struggling to adjust and is altering its procedures on a near daily basis. We will continue to update this blog as these procedures are further changed and altered.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533