The New York State 2020 Budget includes a lot of legislation changes. A great deal of attention has been paid to congestion pricing, but one of the less reported, but even more important parts of the budget involves criminal justice reform. Pace Law School Alumna and New York State Assemblywoman Latrice Walker played an instrumental role in helping to craft the important changes that will reform the bail, discovery, and speedy trial process in New York. Assemblywoman Walker has been pushing for reform of the bail process in New York since introducing similar legislation under A10137A in 2018. On March 31, 2019, Assemblywoman Walker voted to approve the budget, A2009/S1509 and touted it as being able to be part of a legacy moment, which enabled her “to do something on behalf of 84% of New Yorkers who are residing within our criminal justice system who have not been convicted of a crime.”
The preamble to the legislation (p. 182-183) discusses the need for reform of the “manner in which New York [S]tate pursues justice before trial.” The legislation is intended to end needless incarceration before trial merely because someone is unable to pay bail, thus ensuring that fewer presumed-innocent people are held behind bars before trial. The legislation also addresses the timing and content of the discovery process, as well as the speedy trial process. The changes relating to the pretrial release and detention process (subpart A) will take effect November 1, 2020. The discovery rules and tampering/intimidation rules (subpart B) will take effect 180 days after it is signed into law. The speedy trial rules (subpart C) also take effect 180 days after it is signed into law.
Section 150.20 of the criminal procedure law is amended so that when a police officer is authorized to arrest a person pursuant to § 140.10 without a warrant for an offense other than a class A, B, C, or D felony or a violation of §§ 130.25, 130.40, 205.10, 205.17, 205.19, or 205.56 of the penal law, he shall, except in certain circumstances, instead issue and serve upon that person an appearance ticket. The officer does not need to issue an appearance ticket if the person has one or more outstanding warrants; has a documented history of failure to appear in court; has been provided a reasonable opportunity to make their verifiable identity and method of contact known, and has been unable or unwilling to do so, thus making an arrest necessary to subject the person to the jurisdiction of the court; is charged with a crime or offense between members of the same family or household as defined in § 530.11; is charged with a crime or offense involving sexual misconduct under Penal Law § 130.00; in the officer’s estimation, should be brought before the court to consider issuing an order of protection under § 530.13 based on the facts of the crime or offense the officer has a reasonable cause to believe occurred; in the officer’s estimation, should be brought before the court to consider court-ordered restrictions on motor vehicle operation based on the facts of the crime or offense the officer has a reasonable cause to believe occurred; in the officer’s estimation, should be brought before the court to consider court ordered medical or mental health assessment based on the facts of the crime or offense the officer has reasonable cause to believe occurred and observed behavior of the individual in contact with the police; or is unlikely to return to court on the return date of an appearance ticket for reasons specific to the facts of the case the officer can articulate in the information or misdemeanor complaint, but not for reasons solely based on the defendant’s prior criminal history or residence. The appearance ticket should be returnable as soon as possible, but no later than 20 days from the date of issuance.
Some of the definitions located in Criminal Procedure Law § 500.10 are also amended by the legislation. A new subsection 3-a will be added to define release under non-monetary conditions. Once the court has control over a person, non-monetary release permits the person to be at liberty during the action under conditions set by the court, which are the least restrictive necessary to reasonably assure return to court. Conditions can include requiring contact with a pretrial services agency in that county; requiring the principal to abide by specific restrictions on association or travel reasonably related to a risk of flight from the jurisdiction; requiring the principal to refrain from possessing a firearm, destructive device, or dangerous weapon; requiring pretrial supervision with a pretrial services agency serving that county; requiring monitoring through an electronic monitoring device. Additionally, the principal shall not be required to pay for any part of the cost of release under non-monetary conditions.
Criminal Procedure Law § 510.10 will be amended to add in alternatives available for a securing order and the standard to be applied. The court shall release the principal pending trial on the principal’s own recognizance by a securing order unless the court finds on the record that release on recognizance will not reasonably assure the principal’s court attendance. If the court makes such a determination, the court will release the individual under non-monetary conditions, using the least restrictive alternative to reasonably assure court attendance. The court must provide support of its choice of alternative on the record. In cases where the people signal that they intend to move for pretrial detention allowed under § 545, the court may commit the principal to the custody of the sheriff or issue a securing order under § 545. Under § 510.20, the defendant or people may make an application for a different securing order due to a material change in circumstances and both sides must be given an opportunity to be heard and the court must choose the least restrictive alternative that will reasonably ensure a court appearance. Under § 510.30, when the court has the discretion in determining whether to issue an order of recognizance or bail, in addition to the existing factors, the court must also consider and take into account information about the principal that is relevant to court appearance including activities, history, and community ties; the charges facing the principal if the principal is a defendant; the principal’s criminal record, provided that the court considers the elapsed time since the crime(s) and the principal’s age at the time of the occurrence of delinquent or youthful conduct; the principal’s record of previous adjudication as a juvenile delinquent provided the court considers the elapsed time and age of the principal at the time of the conduct; and if the principal is a defendant-appellant in an appeal from a conviction, the likelihood of ultimate reversal of the judgment.
Section 510.40 adds in language about notification to the principal of conditions of release and penalties for violation of release. If the court orders that a principal is released on recognizance or under non-monetary conditions, the court must direct the principal to appear, be at all times amenable to the orders and processes of the court, and in the case of a defendant, not to commit a crime while at liberty under a securing order. If released under non-monetary conditions, the document authorizing the release must provide notice of any conditions of release as well as the consequences for violation of the conditions including revocation of the securing order, more restrictive securing order, or after motion and a hearing under § 545, pretrial detention. Section 510.41 details the provisions of non-monetary conditions of release. The conditions must be the least restrictive to reasonably ensure court attendance. At future court appearances, the court should consider lessening conditions or a modification of conditions to something less burdensome based on compliance with existing conditions of release. Electronic monitoring may be ordered only if the principal is charged with a felony or a misdemeanor involving a person who is the member of the same household as defined in § 530.11(1), and if the court finds after notice and an opportunity to be heard, that no other non-monetary conditions will reasonably ensure return to court. The court finding must be individualized and explained on the record or in writing. Any specific method of electronic monitoring must be approved by the court and be the least restrictive to reasonably ensure return to court as well as being unobtrusive to the greatest extent possible. All electronic monitoring orders shall be reviewed at least every 60 days to determine if they are the least restrictive means of ensuring attendance in court and whether there are less burdensome methods of ensuring compliance. If the principal does not comply with the conditions of release, the court can revoke and modify the securing order after motion by the people and an opportunity for the defendant and counsel to be heard. The court must consider the facts, nature, willfulness, and seriousness of the noncompliance and may only set a more restrictive set of conditions if it finds that they are necessary to reasonably ensure court appearance.
The legislation also adds in notification requirements for court appearances under a new section 510.43. The court or a certified pretrial services agency needs to make best efforts to notify all principals released under recognizance and non-monetary conditions of all court appearances in advance by text message, electronic mail, phone, or first class mail in addition to the verbal notification during a court appearance. This will be accomplished by creating a form that will be offered to the principal at the initial court appearance; such form will allow the principal to select the preferred method of notice and supply the information necessary to effect notice. The form will be retained in the court file. Failure of the principal to receive the additional notification will not excuse appearance at court proceedings.
Since pretrial service agencies are mentioned in the new legislation, a new section was added to cover such agencies. Section 510.45 provides for pretrial services to be performed by a county probation department or nonprofit pretrial services agency approved by the division of criminal justice services and certified by the office of court administration. The office of court administration will list the pretrial services agencies on its website. Pretrial services will advise on the release of principals as well as provide monitoring of those released on non-monetary conditions. The division of criminal justice services will be required to issue regulations for the operation of the pretrial services agencies, including data collection and reporting. The principal and his/her counsel will receive any criteria, instrument, or tool used to make the agency’s recommendation to the court about conditions as well as risk of failing to appear. The criteria cannot include a measure of a person’s general risk to public safety. All tools used by the agency must be validated periodically.
Section 530.20 is amended to include language about securing orders by local criminal courts when an action is pending. A securing order must be issued releasing the principal pending the trial on the principal’s own recognizance unless the court finds on the record that the release will not reasonably insure court attendance. If this is the case, the court will release the principal under non-monetary conditions, choosing the least restrictive alternative to reasonably assure court appearance. If the people indicate that they will move for pretrial detention, the court can commit the defendant to the custody of the sheriff or issue a securing order. If the defendant is facing a class A felony or the defendant has two previous felony convictions under § 70.08(1) or § 70.10(1) of the penal law, the court shall commit the defendant to the custody of the sheriff for the county or superior court to make a determination about a securing order within three days. Section 530.30, which deals with securing orders by superior court when an action is pending, has similar changes to § 530.20.
A new Article 545 is added, which deals with pretrial detention. Under § 545.10, a county or superior court can order pretrial detention of a defendant if the people seek such detention and after a hearing, the court finds clear and convincing evidence that the defendant poses a high risk of flight before trial or poses a current threat to the physical safety of reasonably identifiable person(s), and no combination of conditions could contain the risk or threat. Except under certain circumstances, there will be a rebuttable presumption that some conditions will reasonably contain a high risk of flight or a current threat to physical safety; this presumption may only be overcome by clear and convincing evidence.
Under § 545.20, the people may at any time make a motion with the court for the pretrial detention of a defendant who is charged with a class A felony; charged with offenses involving witness intimidation under §§ 215.15-215.17 of the penal law; charged with class B or C crimes under § 70.02 of the penal law (except burglary in the second degree under § 140.25(2) or robbery in the second degree under § 160.10(1)); who poses an immediate risk of physical harm to members of the same family or household of the defendant as defined in § 530.11(1) of the criminal procedure law; or who has persistently and willfully failed to appear in court in the current case, and the pretrial services agency has certified that it has made persistent efforts to assist in the individual’s appearance in court. The defendant may be committed to the custody of the sheriff pending a hearing on the people’s motion or the court can issue a securing order, and the court’s choice must be supported on the record. If the person is at liberty, a warrant will be issued and the defendant brought into the custody of the sheriff.
Under § 545.30, a hearing shall be held within 3 working days from the people’s motion for pretrial detention. The defendant will have the right to be represented by counsel at the hearing and if the defendant is financially unable to obtain counsel, one will be assigned. The defendant will be allowed an opportunity to testify, present witnesses, cross-examine witnesses, and present information by proffer or otherwise. The rules for admissibility of evidence in a criminal trial do not apply to the presentation and consideration of information during the hearing. Within at least 24 hours of the hearing, the people shall disclose to the defendant and permit the defendant to inspect, copy, or photograph all statements and reports in custody or control of the people or persons under the people’s direction and control that the people rely on to establish reasonable cause that the defendant committed the alleged crime(s), and relate to the basis for the people’s pretrial detention motion that the defendant presents a high risk of flight or a current threat to physical safety of reasonably identifiable person(s). The people must also produce any exculpatory statements. Portions of materials that are claimed non-discoverable may be withheld pending a determination by the court under § 245.70, but the defendant must be notified in writing that the information has not been disclosed and discoverable information shall be disclosed if practicable. In hearings for cases with no indictment, the people shall establish reasonable cause that the defendant committed the charged offense and the people must establish by clear and convincing evidence that the defendant poses a high risk of flight or a current threat of physical danger to reasonably identifiable person(s). There will be a rebuttable presumption that no combination of conditions in the community will contain a current threat to physical safety of reasonably identifiable person(s) if the court finds reasonable cause that the defendant committed a crime which carries a sentence of life imprisonment; committed a crime involving serious physical injury or threat of serious physical injury, or attempt while in the community on recognizance or under non-monetary conditions for a crime involving serious physical injury or the threat of serious physical injury; or threatened, injured, intimidated, or attempted to threaten, injure, or intimidate a prospective witness or juror. The presumption will be rebuttable by a defendant by a preponderance of the evidence. In determining if the defendant presents a high risk of flight or a current threat of physical danger to reasonably identifiable person(s), the court may consider the nature and circumstances of the offense charged; the weight of the evidence against the defendant, although a court may consider the admissibility of any evidence that is sought to be excluded; the defendant’s current and prior history of failure to appear in court and whether the failings were willful; the nature and credibility of the threat to the physical danger of reasonably identifiable person(s); and whether the defendant, at the time of the current offense or arrest, was on probation, parole, or release pending trial, sentencing, or completion of sentence in N.Y. or other jurisdictions. Under § 545.40 a pretrial detention order shall include written findings of fact and a written statement of the reasons for detention as well as direct that the defendant be afforded reasonable opportunity for private consultation with counsel. Section 545.50 deals with reopening a pretrial hearing. A pretrial detention hearing may be opened before or after issuance of a pretrial detention order by the court, by motion of the people or defendant, at any time before trial if the court finds either a change of circumstances or information exists that was not known at the time of the hearing and has a material bearing on the issue of whether the defendant presents a high risk of failure to appear or a current threat to the physical safety of others.
Section 545.60 covers the length of detention for a pretrial detention order. The defendant shall not remain detained in jail for more than 180 days after the return of the indictment, if an indictment is applicable, until the start of trial. If no indictment is required, the defendant shall not remain detained in jail for more than 90 days from the date of the pretrial detention motion until the start of trial. The time within which the trial commences may be extended on motion of the people approved by the court for one or more periods that cannot exceed 20 days each. The additional periods may only be granted on the basis of good cause shown, and only for time needed to prepare for trial. Good cause can include unavailability of an essential witness; need for forensic analysis of evidence; ability to conduct a joint trial; severance of co-defendants that only allows one trial to proceed during the time frame; complex or major investigations; scheduling conflicts arising shortly before the trial date; inability to proceed with the trial because of actions taken by the defendant; and breakdown of a plea agreement on or immediately before the trial date. Some periods are excluded from the computation of the 180 or 90 days. These include any period from the filing of the notice of appeal to the issuance of the mandate in an interlocutory appeal; any period attributed to an examination to determine the defendant’s sanity or competence to stand trial; any period attributable to the inability of the defendant to participate because of mental incompetency or physical incapacity; and any period in which the defendant is otherwise unavailable for trial. If a trial does not commence within the 180 or 90 days and the defendant remains in custody, the defendant shall be released on recognizance or under non-monetary conditions of release pending trial unless the trial is in progress; the trial has been delayed by timely filing of motions, excluding continuance motions; the trial has been delayed at the request of the defendant; or the court finds after motion by the people that there is a current substantial and unjustifiable risk to the physical safety of a reasonably identifiable person, which would result from the defendant’s release from custody, and that no appropriate conditions for release would reasonably address that risk, and that the failure to commence trial was not due to an unreasonable delay by the people. If the court makes such a finding, an additional period of time, not exceeding 30 days, must be set for the trial to commence; and if the trial does not start during this period, the defendant must be released on recognizance or under non-monetary conditions.
Section 216 of the judiciary law is amended by adding a subdivision 5 requiring the chief administrator of the courts to collect data at arraignment on all pretrial release and detention decisions. Information on sex, race, criminal, charge, the decision, any electronic monitoring, and pretrial motions made must be included in the data. The data will be provided to the division of criminal justice services for preparation of an annual report on pretrial release and detention outcomes. The information collected will be included in the report along with failure to appear rates, rearrest rates for those released, and pretrial services agency activities.
The discovery rules are changed by repealing Article 240 of the criminal procedure law and adding in Article 245. Section 245.10 outlines the timing of discovery. Prosecutors must perform the initial discovery obligations as soon as practicable, but no later than 15 calendar days after arraignment on indictment, superior court information, prosecutor’s information, information, or simplified information. Portions of non-discoverable information may be withheld pending a ruling of the court, but the defendant must be notified in writing that information has not been disclosed and discoverable portions of materials shall be disclosed if practicable. If the discoverable materials are exceptionally voluminous or not in the possession, custody, or control of the prosecution, despite diligent efforts, the time period may be stayed up to an additional 30 calendar days without need for a motion. Supplemental discovery obligations must be performed by the prosecution as soon as practicable but not later than 15 calendar days before trial. The defendant shall perform discovery obligations not later than 15 calendar days after being served with the prosecution’s certificate of compliance, except portions of claimed non-discoverable materials may be withheld pending a ruling of the court. The prosecution must be notified in writing that information has not been disclosed and disclosable portions shall be disclosed if practicable. Section 245.20 outlines the automatic discovery procedures including the types of materials as well as any exceptions that the prosecution and the defense must turn over. The requirements are similar to those enumerated in the existing Article 240 although the obligations of the defense and prosecution are consolidated into the single section with multiple subsections. Additionally, the list of initial discovery materials for the prosecution is longer and quite detailed. If either party believes there is good cause for declining to make any of the automatic disclosures, the party may move for a protective order and production of the item will be stayed pending a court ruling. Either party is allowed to redact information such as tax identification numbers and social security numbers. Section 245.25 deals with disclosures prior to a guilty plea deadline. If there is a felony complaint and the prosecution made a pre-indictment guilty plea offer requiring a plea to a crime, the defendant may inspect any available factual police or law enforcement report regarding the arrest or investigation of the charges, although the court can deny a request that a reasonable person in the defendant’s position would not consider to be of material importance in making a decision on the plea offer. On indictment or information, when the prosecution has made a guilty plea offer requiring a plea to a crime, the defendant may inspect available factual police or law enforcement reports regarding the arrest or investigation of the charges that would be discoverable prior to trial, although this too can be denied by the court for similar reasons.
Section 245.30 relates to court orders to preserve evidence, grant access to a premises, or allow discretionary discovery. Section 245.35 includes court ordered procedures to facilitate compliance. The court can issue orders to require the prosecutor and defense counsel to confer to reach an agreement on any discovery dispute before seeking a court ruling; require a discovery compliance conference; require the prosecutor to file an additional certificate of compliance stating that the prosecutor and/or an appropriate named agent has made reasonable inquiries of all police officers and other investigators or evaluators of the case of the existence of evidence favorable to the defendant; or require any other measures to effect the goals of article 245.
Under Section 245.40, the court can, after motion by the prosecution showing probable cause to believe the defendant committed the crime, a clear indication that material evidence will be found, and the method used to get the evidence is safe and reliable, require a defendant to provide non-testimonial evidence including appearing in a lineup; speaking for identification by a witness; fingerprinting; posing for photos that are not part of a reenactment; blood, hair, and other material samples with no unreasonable intrusion; handwriting specimen; and submitting to a reasonable physical or medical inspection. An order under this section does not alter or affect other similar court orders and may be denied, limited, or conditioned. Section 245.45 deals with a DNA comparison order and relates to a keyboard search where a DNA profile is run against a databank without being uploaded to or maintained in the databank. When the prosecution has property with a DNA profile obtained from probative biological material gathered in connection with the investigation, and the defendant establishes that the profile complies with FBI or state requirements that are applicable to law enforcement for a keyboard comparison search and the data meets the state or national DNA index system criteria applied to law enforcement seeking a comparison, the court may order an entity with access to the combined DNA index compare the profile against DNA databanks by searches without uploading information if the defendant makes a showing that such a comparison is material to his or her defense and the request is reasonable.
Under section 245.50, both the defense and prosecution need to certify compliance with discovery rules. Under section 245.55, the prosecution shall try to ensure a flow of information between the police and investigators and the prosecution’s office that is sufficient to place materials and information within his or her control. New York state law enforcement agencies shall make available to the prosecution a complete copy of the files related to an investigation. Whenever there are 911 recordings, police radio transmissions, or video or audio from police body cameras, the police need to expeditiously notify the prosecution in writing of the existence of such recordings and the prosecution must expeditiously take steps to preserve such recordings throughout the case. Failing to do so can result in sanctions.
The continuing duty to disclose under § 245.60 requires expeditious disclosure of any additional material or information that would have needed to be disclosed previously. Work product is discussed in § 245.65. Legal research, opinions, theories or conclusions of the adverse party, or its attorney or agents of the attorney, or statements of a defendant made to the attorney are not authorized for discovery. Although protective orders are covered in the existing article 240, § 245.70 is more voluminous. The court can at any time order that discovery or inspection be denied, restricted, conditioned, or deferred after either party makes a showing of good cause. Conditions can include making material available only to counsel for defendant or requiring that materials only be provided for inspection at a supervised location during regular and reasonable hours. The court can also alter the time periods of discovery on motion of either party after a showing of good cause. Good cause is enumerated in subsection 4. If the attorney-client relationship is terminated before trial and material information disclosed under the condition of only being available to counsel must be provided to the successor under the same conditions unless the court rules otherwise for good cause. If a defendant chooses to proceed pro se, the court can modify or vacate conditions for good cause show. Review of an adverse ruling under the section can be expedited by an intermediate appellate court and must be sought within 2 business days of the adverse ruling by order to show cause filed with the intermediate appellate court and served on the lower court and opposing party and include sworn affirmation stating in good faith that the ruling affects substantial interests and diligent efforts to reach an accommodation with opposing counsel failed or was not feasible. The individual appellate courts determine how to assign justices to such reviews and justices may dispense with written briefs other than those supporting and opposing materials submitted to the lower court and may dispense with issuing a written opinion. A defendant can waive discovery under § 245.75 provided that the waiver is in writing and signed by the defendant and counsel. A guilty plea may be conditioned on a waiver under the section.
Section 245.80 provides remedies or sanctions for discovery non-compliance. Courts can impose proper sanctions or remedies for belated disclosure that was prejudiced or discoverable material that is lost or destroyed and may have contained some information relevant to a contested issue. Remedies or sanctions include, a further discovery order, a continuance, re-opening of a hearing, calling/recalling of a witness, instruction that a jury can draw an adverse inference from non-compliance, preclude or strike testimony, admission or exclusion of evidence, a mistrial, dismissal of all or some charges, or anything that is just in the circumstances provided it does not interfere with the defendant’s constitutional right to present a defense and a defense witness will only be precluded from testifying if there is a finding that the defendant’s failure to comply was willful and motivated by a desire to obtain an advantage tactically. Failure of the prosecution to disclose any written or recorded statement made by a prosecution witness relating to the subject of the testimony, shall not constitute grounds for a court to order a new pre-trial hearing or set aside a conviction,, or reverse, modify, or vacate a judgment in the absence of a showing by the defendant that there is a reasonable possibility that the non-disclosure materially contributed to the result of the trial or proceeding. Section 245.85 covers admissibility of discovery. Indicating an intention to offer specified evidence or call a specified witness is not admissible in evidence for adverse comment at a hearing or trial.
One of the next major additions is a new § 215.07 of the penal law, which addresses tampering with or intimidating a victim or witness through social media. Someone is guilty of this when he or she disseminates information on social media with the intent to induce a witness or victim to absent himself or herself from, avoid, or seek to avoid appearing at, producing records, documents, or other objects for use at, or testifying at a criminal action or proceeding or to refrain from communicating information or producing materials to any court, grand jury, prosecutor, police officer, or peace officer regarding a criminal transaction. Social media includes but is not limited to communication where users participate in online communities to share information, ideas, personal messages, or other content. This is a class A misdemeanor. Similarly, § 215.13-a, tampering with a witness in the first degree is added to the penal law. This crime is classified as a class A-I felony and requires intent to cause the death of or attempt to cause the death of a person to obstruct, delay, prevent, or impede giving testimony or production of materials, or someone who already testified or produced materials for use in a proceeding. Intimidating a witness in the third degree will be changed to the fourth degree under § 215.15 and a new subsection is added so that a person is guilty of the offense if he or she intentionally distributes, posts, or publishes through the internet or social media, copies of a victim or witness statement or a visual image of a victim or witness or any other person to compel a person to refrain from communicating or if the person has already communicated with a court, grand jury, prosecutor, police officer or peace officer relating to the criminal transaction. Section 215.18 is added to cover intimidating a witness or victim in the first degree. A person is guilty of this offense if other than in the course of the criminal transaction or immediate flight from the transaction, he or she intentionally causes or attempts to cause death to another person to obstruct, delay, prevent, or impede communication or production of materials to any court, grand jury, prosecutor, police officer or peace officer or for the purpose of compelling the other person to swear falsely; or intentionally causes or attempts to cause death to someone who has already communicated or produced materials. This is also a class A-I felony. An affirmative defense to these tampering or intimidation charges is added in § 215.21, and allows a defendant to prove by a preponderance of the evidence that the conduct included only lawful conduct for the sole purpose of encouraging, inducing, or causing another person to testify truthfully.
The speedy trial rules are enumerated in criminal procedure law § 30.30. The current text in subsection 2 is removed under this new legislation. Section 2 now states that the court may make inquiry on the record as to actual readiness of the prosecutor when a prosecutor states or otherwise provides notice that the people are ready for trial. If the court determines that the people are not ready to proceed, the statement or notice of readiness will not be valid. A statement of readiness must accompany or precede a certificate of good faith compliance with the discovery requirements. Subsection 2 does not apply when a defendant waives disclosure requirements. The defense must be afforded an opportunity to be heard on the record concerning any readiness inquiry or whether disclosure requirements have been met. Section 2-a is added to include that a statement of readiness will not be valid upon a misdemeanor complaint unless the prosecution certifies that all counts charges in the accusatory instrument meet the requirements of §§ 100.15 & 100.40 and those that do not meet those requirements have been dismissed.