COVID-19’s Effect on New York’s Speedy Trial Statute
[Credit for the Image: https://www.law.com/newyorklawjournal/2020/04/09/new-york-court-system-plans-to-relax-coronavirus-restrictions/]
As COVID-19 rages on, New York courts have postponed new jury trials in an attempt to slow the virus’ spread, and criminal cases are no exception. However, New York also has a speedy trial statute, CPL § 30.30, that governs how much time can pass before a case is brought to trial, or before a detained defendant must be released on bail or recognizance.  American Bar Association Criminal Justice Section Chair Kim Parker predicts the confluence of the postponements and the speedy trial statute will result in “delays and an expanding backlog of cases.”  New York City has already seen an increase in burglaries of businesses since lockdown measures began. New York criminal law practitioners may be wondering how this will affect their clients and whether the General Assembly can retroactively amend its speedy trial statute.
Trial delays due to COVID-19 are unlikely to be included in the calculation of time under CPL § 30.30, because the statute has an exceptional circumstances clause.  The court has previously found other disasters, such as Hurricane Sandy and the September 11th Terror Attacks, as exceptional circumstances.  When comparing COVID-19 to these disasters, COVID-19 has resulted in more deaths,  has also resulted in a gubernatorially-declared state emergency,  and has also brought daily life to a sputtering halt. Additionally, courts closed sua sponte and will be more likely to view postponements as reasonable because it was at their discretion. Thus, COVID-19 will likely be considered an exceptional circumstance.
It remains unclear whether the New York General Assembly could amend CPL § 30.30 retroactively due to the Constitution’s ex post facto clause. In New York, whether a statute applies retroactively typically requires legislative intent  - though procedural legislation is generally applied retroactively to pending cases.  Regardless, even if a statute is not procedural and not assumed to apply retroactively, the legislature can order it so if it states such an intent in the statute. However, the legislature can never do so when it would result in an ex post facto law. Calder v. Bull set down the early definition of an ex post facto law:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. 
Under this definition, it would not be obvious that retroactively amending a state’s speedy trial statute would constitute an ex post facto law. However, the New York Court of Appeals has asserted that statutes may be deemed ex post facto even if they do not meet the definition in Calder.  The Supreme Court asserted this view as well in Beazell v. Ohio, holding there is no “formula” or “general proposition” to determine when a statute becomes unconstitutional under the Constitution’s ex post facto clause.  Thus, whether a procedural change amounts to an ex post facto law depends on its effect on the defendant.  Should the legislature retroactively amend CPL § 30.30, some defendants would not see their case dismissed, others may see social and professional damage due to the lingering charge, and others will simply face the extended anxiety that comes with any pending legal action.
The court has previously found the retroactive elimination of preliminary hearings not to be an ex post facto law because the defendant suffered no substantive burden.  The court has not adjudicated whether a dispositive procedural mechanism would fall under that same finding.
As the novel coronavirus bludgeons New York’s criminal justice system, courts and prosecutors will need to develop their own novel response to the crisis.
 See N.Y. Crim. Proc. Law § 30.30 (Consol.).
 See Matt Reynolds, How the Coronavirus is Upending the Criminal Justice System, ABA Journal (Mar. 19, 2020, 3:59 PM), https://www.abajournal.com/web/article/pandemic-upends-criminal-justice-system.
 See Ben Chapman, New York City Sees More Burglaries of Businesses Under Coronavirus Emergency Measures, The Wall Street Journal (Apr. 4, 2020), https://www.wsj.com/articles/new-york-city-sees-more-burglaries-of-businesses-under-coronavirus-emergency-measures-1158600880.
 See N.Y. Crim. Proc. Law § 30.30(4)(g) (Consol.).
 See New York v. Sheehan, 62 N.Y.S.2d 886,700 (N.Y. Crim. Ct. 2013)(citing Hurricane Sandy as an exceptional circumstance); see also New York v. Wright, 748 N.Y.S.2d 199,211 (N.Y. Crim. Ct. 2002)(referencing the impact September 11th had).
 See Kyle Smith, In New York, COVID-19 Death Toll Surpasses 9/11, National Review (Apr. 6, 2020), https://www.nationalreview.com/corner/in-new-york-covid-19-death-toll-surpasses-9-11/.
 See N.Y. Comp. Codes R. & Regs.tit. 9, §8.202, https://www.governor.ny.gov/news/no-202-declaring-disaster-emergency-state-new-york.
 See Gleason v. Holman Contract Warehousing, 649 N.Y.S.2d 647, 653 (N.Y. Sup. Ct. 1996).
 See Calder v. Bull, 3 U.S. 386, 390 (1798).
 See People ex rel. Pincus v. Adams, 9 N.E.2d 46 (N.Y. 1937).