Professor and co-director of the Criminal Defense Clinic Martha Rayner and third-year student Alex Garber co-wrote an article for the New York Law Journal examining the modification to Criminal Procedure Law §150.20 that will significantly impact New Yorkers.
This alteration constitutes a sea change in arrest procedures in New York state, where until now, the police have had discretion regarding when to issue an appearance ticket and when to arrest. In 2018, in New York City alone, 128,194 individuals were arrested for misdemeanor offenses, and countless more were arrested for violations. Under the new CPL 150.20(1)(a), a large majority of these individuals can no longer be arrested. Although the meaning of the law is plain and unequivocal, nobody—not the Governor, legislators, or criminal justice stakeholders—have addressed its implementation or ramifications.
The question then becomes, if officers are not permitted to arrest an individual when there is probable cause that a low level crime was committed, then what level of intrusion is permitted before the officer issues an appearance ticket? Drawing from People v. DeBour, which defines the levels of police intrusion, police will be able to ask the suspect questions implying criminality (DeBour level 2) and will be able to forcibly stop and detain the individual (DeBour level 3). Prior to the change in law, it was common police practice to either handcuff individuals or to transport them to a precinct before issuing appearance tickets. However, both of those actions constitute arrests and therefore are now prohibited by 150.20(1)(a) for most low level offenses.