Opinion: Discovery reform works. Don’t let prosecutors gut it.

As a former criminal defense attorney and current Assembly member, I have a unique perspective on New York’s discovery reforms. That is why the past few weeks have been difficult to watch, with many criticizing legislation they had once adamantly supported.

I practiced criminal law through the modifications to both bail and discovery; now, as a state legislator, I am deeply concerned about any rollbacks, which would erode reforms that have strengthened our communities, enhanced public confidence in the criminal justice system and advanced racial justice. The supposed “crisis” surrounding discovery is a uniquely downstate issue, and it is extremely reckless to alter the law for the entire state simply because certain prosecutors say they are struggling with compliance. 

Since 2020, government prosecutors have been required to meet transparency obligations when they accuse New Yorkers of criminal offenses. Most prosecutors have adhered to these obligations, though some have found it challenging. A few have outright refused to comply. Predictably, noncompliance leads to dismissals. However, make no mistake, the large bulk of dismissals are for low-level offenses in New York City, with no comparable impact on the rest of the state. Instead of buckling down and committing to follow the law, certain prosecutors have instead launched a dangerous and relentless campaign of misinformation, attempting to manipulate the public with false claims and scare tactics. District attorneys who are not experiencing these issues have nonetheless joined this campaign. 

I refuse to stand for this false narrative, and neither should you. As a lawmaker, an attorney and an officer of the court, I am committed to justice, accountability and truth.

To understand the reality of discovery laws, it is essential to clarify what prosecutors are required to do, how dismissals work under the current law and why completely modifying it is unnecessary. In order to state that they are ready for trial, prosecutors must affirm that they have provided materials related to the case to the defense attorney. If additional evidentiary materials come to them later, they can provide those materials without penalty if they exercise due diligence, ensuring that discovery disclosure is an ongoing process rather than a one-time event. Courts can also accommodate prosecutors by offering remedies for discovery violations that do not have to result in automatic case dismissal. For example, judges can grant more time to comply, suppress improperly withheld evidence or impose other sanctions. But they won’t dismiss a case that has been diligently prosecuted. 

The claim that thousands of cases in New York State are being dismissed on “technicalities” because minor pieces of evidence are turned over belatedly is not just misleading – it is patently false. In fact, research just now coming out of New York City has shown that the dismissals are not on technicalities; they are because legitimate pieces of information have been withheld. 

The data from the Office of Court Administration’s website demonstrates that in 2023 and 2024, fewer than 1% of misdemeanor cases disposed of in town and village courts outside of New York City were dismissed on speedy trial grounds. When you compare speedy trial dismissals rates in upstate counties like Albany, Erie, Nassau, Onondaga, Suffolk, and Westchester, from 2019 (pre-discovery reform) to 2024, some counties like Albany and Erie actually saw decreases in their speedy trial dismissal rates, and no county saw more than a 4% increase. The only dramatic increase in New York state was in New York City, where speedy trial dismissals increased from approximately 5% in 2019 to 27.5% in 2024. 

A recent op-ed from an upstate prosecutor asserted that "no matter how hard a prosecutor may work to turn over materials in good faith, should such turnover…of anything…be past a deadline, the entire case now faces dismissal." This claim is bewildering, considering that the Third Department, the appellate jurisdiction for much of upstate New York, has seen only a handful of dismissals for discovery-related violations since 2020, and his county was one of the ones which saw a decrease in dismissals from 2019 to 2024. In 2023, the Court of Appeals, New York's highest court, ruled that as long as prosecutors act with "due diligence" – meaning they make "reasonable efforts" to meet their obligations – dismissal is not required. This case, known as People v. Bay, clarified that the discovery law does not require a “perfect prosecutor,” nor is there a rule of “strict liability” when it comes to evidence sharing. 

In an era of widespread and terrifying attacks on constitutional and civil rights, we must strengthen protections in the courtroom, not erode them. Weakening the current discovery statute would harm accused individuals, limit their access to critical evidence and tilt the scales of justice away from what the legislature corrected in 2020. If there is an issue in one specific jurisdiction, we should address it locally rather than making sweeping changes that would undermine justice across the state. New Yorkers deserve a system that upholds fairness, not one that bends to misinformation and fearmongering. 

Gabriella Romero is an Assembly member representing the 109th Assembly District, which encompasses Albany, New Scotland and parts of Guilderland. Before her election to the state Legislature, she was a felony trial attorney in the Albany County Public Defender's Office practicing criminal defense work for seven years.