senate Bill S4089A

Relates to discovery

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Bill Status

  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 08 / Mar / 2013
  • 15 / Jun / 2013
  • 15 / Jun / 2013
    • PRINT NUMBER 4089A
  • 08 / Jan / 2014


Relates to discovery.

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Bill Details

See Assembly Version of this Bill:
Legislative Cycle:
Current Committee:
Senate Codes
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §240.40, CP L

Sponsor Memo


TITLE OF BILL: An act to amend the criminal procedure law, in
relation to discovery

PURPOSE: To strengthen the ability of a court to order disclosure by
the prosecution of relevant property that is shown to be material to
preparation of the defense, whether or not the prosecution intends to
introduce the property at trial. Removing the latter restriction will
effectuate the transmission of information potentially favorable to
the defense, a constitutional duty often frustrated by inconsistent
interpretations of the obligation, non-compliance, or belated

SUMMARY OF PROVISIONS: Section 1 of the bill amends 240.40 of the
criminal procedure law to allow a court to order disclosure by the
prosecution of relevant property that is shown to be material to
preparation of the defense, whether or not the prosecution intends to
introduce the property at trial.

Section 2 is the effective date.

JUSTIFICATION: The ever-present reality of the criminal justice
process is that most of the information necessary to fair adjudication
is in the hands of the State. One purpose of the discovery law is to
disclose to the accused before trial inculpatory evidence making up
the State's case, in order to prevent unfair surprise. An equally
critical component of the discovery process is to provide the accused
with material in the hands of the State, with its superior
investigatory resources, that may aid in the preparation of a defense.
this duty to disclose what is loosely referred to as "exculpatory"
evidence had been a constitutional requirement since Brady v.
Maryland, 373 U.S. 83 (1963).

More accurately, the Brady rule encompasses all material "favorable"
to the accused. See People v. Fuentes, 12 MY3d 259, 263 (2009).
"Favorable" is a broad category, including any evidence "inconsistent
with a fundamental aspect of the People's case." People v. Garcia, 46
A23d 461, 262 (1st Dept. 2007).

The basic flaw in the Brady disclosure process is that it places the
duty to search, for evidentiary material favorable to the defense in
the hands of its adversary. Some prosecutors may take an unduly narrow
view of the Brady obligation, one that does not encompass impeachment
material or recognizes only obvious exculpatory evidence. And even
the conscientious prosecutor may not understand how an item might fit
within a defense theory, or lead to evidence favorable to the defense.

The amendment to CPL 5240.40(1) (c) would strengthen the effectuation
of the Brady rule. The current version, with the "which the people
intend to introduce at trial" restriction, serves only the discovery
function of preventing surprise. It does little to aid the preparation
of the defense function. The part of the information in the
prosecution's possession that it selects to introduce at trial will
likely not be favorable to the defense. On the other hand, the
material that it chooses not to present to the trier of fact is the
category where information favorable to the defense is more likely to

be found. For example, the prosecution may feel that an "inconclusive"
scientific test proves nothing, but the' defense may interpret it as
supporting a reasonable doubt.

By excising the "intend to introduce at the trial" limitation, the
discovery law will effectuate access for the defense to potentially
favorable matter in a manner not dependent on what may be the
adversary's narrow, skeptical, or uninformed assessment of its
significance. As the Court of Appeals has emphasized: "We have often
repeated that the best judge of the value of evidence to a defendant's
case is 'the single-minded devotion of counsel for- the accused.'"
People v. DaGata, 96 NY2d 40, 45 (1995). DaGata ruled that,
"consistent with this State's philosophy of broad pretrial
disclosure," notes related to DNA testing should have been turned
over;, in the hands of the defense, they might have led to information
favorable to its case. Id.

The DaGata court recognized that the prosecution could obtain a
protective order under CPL § 240.50 against inappropriate disclosure.
Id. At 44. More important, the amendment to CPL 9240.40(1)(c) keeps
control of this area of discovery in the hands of the court, and
requires a showing of materiality and reasonableness. The court is
well-situated to make any reasonable accommodations to the prosecution
where problems of privilege or witness intimidation are shown to

The benefits of more thorough and timely disclosure of material
potentially favorable to defense of a case far outweigh any problems
in ironing out the details of this discovery. The steady cascade of
reversals and wrongful convictions owing to withheld Brady material is
a sign nor only of insufficient compliance but of the inefficiency of
an entirely "backward-looking" enforcement process, which offers a
cure for non-disclosure only when egregious errors are revealed in
post-conviction review. Giving the court the authority to order more
targeted disclosure in the pre-trial setting can only enhance the
fairness and reliability of the administration of justice.

LEGISLATIVE HISTORY: A9080 of 2011-12, 2013 Session Now bill in Senate


EFFECTIVE DATE: This shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K


                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              March 8, 2013

Introduced  by  Sens.  SAVINO, PARKER -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes --  commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee

AN ACT to amend the criminal procedure law, in relation to discovery


  Section  1.  Paragraph  (c)  of subdivision 1 of section 240.40 of the
criminal procedure law, as amended by chapter 19 of the laws of 2012, is
amended to read as follows:
  (c) may order discovery with respect to any other property[, which the
people intend to introduce at the trial,] upon a showing by the  defend-
ant  that  discovery  with  respect  to such property is material to the
preparation of his or her defense, and that the request  is  reasonable;
  S 2. This act shall take effect immediately.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.


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