Criminal Justice Insider

In April of 2019, New York State passed a sweeping set of criminal justice reforms. Of these reforms, the elimination of cash bail for most misdemeanors and non-violent felonies has garnered the most attention. However, equally important and equally dramatic were the changes to the discovery rules governing disclosure in criminal cases. See my prior blog post entitled “A New Year, A New Criminal Justice System in New York State” for more information on the reforms.

Effective January 1, 2020, the New York State legislature implemented a widespread overhaul of Criminal Procedure Law Sec. 240. The rules, now set forth in Criminal Procedure Law Sec. 245, require that discovery from a prosecutor is no longer to be produced to defense counsel on demand, but rather be provided automatically within fifteen days of arraignment. The nature and extent of discovery has changed as well. For example, prosecutors are now responsible for turning over the full names and contact information for anyone they knew to be a witness to the alleged crime to defense counsel.

Of course, the various prosecutor’s offices felt that such disclosure constituted a clear danger to the victims and witnesses and began to search for ways to address what they felt to be a significant security concern. Enter “WitCom.” WitCom is a smartphone app which masks the real cell phone number of a witness. Defense counsel can download the app and use it to contact a victim, whose information has been uploaded by the prosecutor’s office, using a masked telephone number. According to WitCom’s website, it is currently being used by the Kings County District Attorney’s Office and the New York County District Attorney’s Office.

Because of the recent comprehensive changes to the Criminal Procedure Law, much remains unsettled and there is very little interpretative case law. However, one of the first of what is likely to be many decisions interpreting the new rules concerns WitCom.

In People v. Quanyi Feng, decided in February of 2020, the Honorable Matthew Sciarrino of the Kings County Supreme Court ruled that WitCom was not compliant with the new statute and was not adequate substitute for providing the actual contact information for the prosecution’s witnesses. The Court found that the app “stands for a lack of information” and puts defense counsel at an unfair disadvantage by inserting the prosecutor into the communication stream. He ultimately ruled that while WitCom could be appropriate in some cases, it should be used at the option of defense counsel, and not mandated. He ordered that the prosecution turn over verified email addresses and cell phone numbers for the witnesses in Mr. Feng’s case. Notably, he stayed the decision for thirty days presumably to accommodate any applications for emergency appellate relief.

This is the one of the first of what is sure to be many cases to come on the scope of prosecutorial obligations under the revised Criminal Procedure Law. We will continue to update with blog with news and decisions of note as they are released.

For more information on the topic discussed, contact:

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