The maddening impossibility of prosecuting $300M a year MTA fare dodgers

Nearly half of New York City’s bus riders evaded paying fares over the last three months, a pattern that helps🦹 explain why the MTA reportedly hemorrhaged over $300 million due to bus freeloaders in the last ๊year.

La﷽w-abiding New Yorkers will pay for this type of revenue loss in the form of fare hikes and tax increases.

But just deploying more NYPD officers and fare enforcement agents to combat fare evasion — as the transit authority announcedꦡ last month — won’t fix the proble𝓡m.

Until Albany amends the 2020 “discovery law,” the actual consequences for farebeating won’t be enough to convince delinqꦍuents to cough up the $2.90 per ride.

In the state of New🍸 York, prosecuting “minor” crimes, liౠke fare evasion, has become impossible under discovery reform, which advantages offenders often insurmountably.

Importantly, this is separate from the explicit policies for declining to prosecute fare evasion that district ꧑attorneys in Manhattan, Brooklyn and the Bronx have adopted since 2017.

The discovery law does not restrict the robust prosecution of farebeating. Instead, it imposes a compliance burden so great that prosecutors are simply unable to consistentl🌳y pros♈ecute such cases — even when they want to.

A ✱perfect example is the case of Zayan Shar, who was charged last November in Staten Island wꦏith “Theft of Services,” a Class A misdemeanor, after dodging bus fare.

Prosecutors filed all the exhaustive mate🍎rial which discovery law now requires as evidence: body-worn camera recordings, a bus-fare evasion data sheet, a bu🐭s-fare evasion supporting deposition, video surveillance from the bus, a memo-book entry made by MTA Special Inspector Thomas Femia, who witnessed Shar’s farebeating — and more.

But Shar’s defense attorney was able to get his case dismissed by exploiting the bottomless stringency of the 2020 discovery statute, in combination with New York’s “speedy tr🎉ial” law, which mandates prosecutors be ready for trial in a set number of days.

Shar’s attorney dilly-dallied for t🐓🐻wo weeks before raising an issue, all while the window for prosecution narrowed.

Then she claimed prosecutors had failed to “disclose the name of and adequate contact information” for two additional MTA employees who were seen momentarily on video surveillance and bodycam recordings.

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

Over the following weeks, prosecutorsꩲ diligently tracked down and s🐻hared all these materials.

But defense counsel was nonetheless𓂃 able to insist prosecutors took too long to collect these — meaningless — extra snips of information.  

How meaningless? Piegari neither witnessed Shar’s alleged fare evasion nor informed the NYPDඣ about it. He was, in fact, “only in the presence of the defendant for mere second𝓰s.”

Prosecutors reasoned that none of this new information wa💝s “discoverable” — material that constitutes re🌱quired evidence — because they didn’t intend to call Piegari as a witness. And further, Piegari’s memo book contained “no information regarding the alleged incident.”

But still, the case was tossed.

Shar’s freebie is not a one-off fluke: The Staten Island DA’s Office had dismissals in just the f☂irst 11 months o♎f last year — 5% of its total caseload.

Compare this to the pre-discovery reform era, when the office dismissed basically zero cases due to “speedy trial” petitions.

Beyond just “speedy trial” dismissals, the discovery burden has pushed the increase of all case dismissals in Staten Island — from of cases in 2019, to almost half of cases in 2023.

And for misdemeanors, like Shar’s stolen bus ride, there were over a thousa൩nd more dismissals in the borough last ye𓂃ar than in 2019, pre-discovery reform.

And that’s just one borough.

Citywide, “speedy trial” dismissals rose from of cases in 2019 to over 22% lဣast year.

That’s an astounding increase of 23,564 cases that, like Shar’s, were dismissed because prosecutors co♏uldn’t scramble toge🍸ther every conceivable scrap of “evidence” that defense attorneys could concoct before the permissible time window for prosecution closed.

This absurdity will continue until discovery reform is amended to only require the collection of relevant material, or to decouple discovery collection from the “speedy tꦺrial” tim🎀eframe.

Yes, greater police presence on buses and more proactive enforcement are important for encouraging the 25% of bus riders who stopped paying fares after 2019 𒉰to start doing it again. But it won’t return evasion levels to their 2019 rates♔.

Until robust ཧprosecution for misdemeanor arrests is an option for diꦅstrict attorneys’ offices, police will also be understandably less motivated to attempt any enforcement beyond a toothless civil summons. 

And half the city’s bus straphangers, undeterred by the fear of prosecution, will c♍ontinue to mooch off the chumps who pay to ride.

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