Discovery reform enables bus moochers to exploit MTA opportunities

Almost half of New York City’s two million bus riders evaded paying fares over the last three months, a trend that contributes to the MTA’s reported loss of over $300 million due to fare evaders in the past year.

Law-abiding New Yorkers will bear the brunt of this revenue loss through fare hikes and tax increases.

Simply increasing the presence of NYPD officers and fare-enforcement agents to combat fare evasion, as announced by the transit authority last month they plan to do, will not solve the problem.

Until Albany revises the 2020 “discovery law,” the actual consequences for fare evasion will not be sufficient to deter offenders from evading the $2.90 per ride fee.

In the state of New York, prosecuting “minor” crimes like fare evasion has become nearly impossible under discovery reform, giving offenders an advantage that is often insurmountable.

It is essential to note that this issue is separate from the explicit policies adopted by district attorneys in Manhattan, Brooklyn, and the Bronx to decline prosecuting fare evasion since 2017.

The discovery law does not limit the vigorous prosecution of fare evaders but instead imposes such a compliance burden that prosecutors are simply unable to consistently pursue such cases, even when they intend to.

One example is the case of Zayan Shar, charged last November in Staten Island with “Theft of Services,” a Class A misdemeanor, for dodging bus fare.

Prosecutors provided exhaustive material required under the discovery law as evidence: body-worn camera recordings, a bus fare evasion data sheet, a supporting deposition for bus fare evasion, video surveillance from the bus, a memo-book entry by MTA Special Inspector Thomas Femia who witnessed Shar’s fare evasion, and more.

Despite prosecutors providing all necessary evidence, Shar’s defense attorney managed to get the case dismissed by exploiting the strictness of the 2020 discovery statute and New York’s “speedy trial” law which sets a deadline for prosecutors to be ready for trial.

Shar’s attorney delayed for two weeks before raising an issue, while the prosecution window narrowed.

Then, the attorney claimed prosecutors failed to disclose the name and contact information for two additional MTA employees briefly seen on video surveillance and body-cam recordings.

The attorney also demanded memo book and camera audit logs for one of these officers, Special Inspector Christopher Piegari.

Despite prosecutors diligently providing these materials over the following weeks, the defense counsel argued that prosecutors took too long to collect these extra pieces of information, which were ultimately found to be insignificant.

As a result, the case was dismissed.

Shar’s case is not unique, as the Staten Island DA’s office had around 300 “speedy trial” dismissals in the first eleven months of the previous year, accounting for 5% of their total caseload.

Before discovery reform, the office hardly dismissed cases due to “speedy trial” petitions.

Overall, the discovery burden has led to a rise in case dismissals in Staten Island from less than a quarter of cases in 2019 to almost half of cases in 2023.

For misdemeanors like Shar’s, there were over a thousand more dismissals in the borough last year compared to pre-discovery reform in 2019.

This trend is not exclusive to Staten Island, as citywide “speedy trial” dismissals increased from under 5% of cases in 2019 to over 22% last year.

This significant increase highlights the challenges posed by the current discovery laws in prosecuting cases effectively.

Unless discovery reform is amended to focus on relevant material or delink discovery collection from the “speedy trial” timeframe, this issue will persist, impacting the ability to prosecute effectively.

While greater police presence on buses and proactive enforcement are crucial in encouraging bus riders to pay fares, it will not bring evasion levels back to those of 2019.

Without the option for robust prosecution of misdemeanor arrests by district attorneys’ offices, law enforcement will be less motivated to enforce fare evasion laws beyond issuing civil summonses.

Business as usual will persist, with half of the city’s bus riders taking advantage of the lack of prosecution and continuing to evade fares at the expense of those who pay.

Hannah E. Meyers is a fellow and the director of policing and public safety at the Manhattan Institute.