S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                11446--A

                          I N  A S S E M B L Y

                              June 14, 2010
                               ___________

Introduced  by  COMMITTEE ON RULES -- (at request of M. of A. Espaillat,
  Gottfried, McDonough, Gibson,  Glick,  Heastie,  Hikind,  Scarborough,
  Stirpe) -- read once and referred 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  exculpatory
  material

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The criminal procedure law  is  amended  by  adding  a  new
section 240.25 to read as follows:
S 240.25 DISCLOSURE OF INFORMATION EXCULPATORY TO THE DEFENSE.
  1.  DEFINITION.   EXCULPATORY INFORMATION INCLUDES, BUT IS NOT LIMITED
TO, INFORMATION THAT IS MATERIAL AND FAVORABLE TO  THE  ACCUSED  BECAUSE
THE INFORMATION:
  (A) CASTS DOUBT ON WHETHER THE CONDUCT OF THE ACCUSED SATISFIED ONE OR
MORE  OF THE ELEMENTS OF A CRIME CHARGED IN THE INDICTMENT, INFORMATION,
OR OTHER CHARGING INSTRUMENT;
  (B) CASTS DOUBT ON WHETHER THE CRIME CHARGED OCCURRED;
  (C) CASTS DOUBT ON THE ADMISSIBILITY OF EVIDENCE THAT  THE  PROSECUTOR
ANTICIPATES  OFFERING  IN  THE  PROSECUTION'S  CASE-IN-CHIEF BECAUSE THE
INFORMATION PROVIDES A BASIS FOR A MOTION TO SUPPRESS  OR  EXCLUDE  SUCH
EVIDENCE;
  (D)  CASTS  DOUBT ON THE CREDIBILITY OR ACCURACY OF TESTIMONY OR OTHER
EVIDENCE  THAT  THE  PROSECUTOR  ANTICIPATES  OFFERING  IN  HIS  OR  HER
CASE-IN-CHIEF;
  (E) DIMINISHES THE DEGREE OF THE ACCUSED'S CULPABILITY OR THE LEVEL OF
OFFENSE CHARGED;
  (F)  SUPPORTS  A  DEFENSE TO THE CHARGE OR CHARGES PENDING AGAINST THE
ACCUSED;
  (G) MITIGATES, REDUCES OR AFFECTS THE SENTENCE THAT MUST OR  MIGHT  BE
IMPOSED;
  (H)  TENDS  TO  LEAD  TO INFORMATION THAT WOULD SATISFY PARAGRAPHS (A)
THROUGH (G) OF THIS SUBDIVISION.

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

                                                           LBD17547-02-0

A. 11446--A                         2

  2. TIMING OF FIRST DELIVERY OF INFORMATION.  WITHOUT A MOTION  BY  THE
DEFENSE,  THE  FOLLOWING  INFORMATION MUST BE DISCLOSED AND DELIVERED BY
THE PROSECUTION TO THE DEFENSE WITHIN TWENTY-EIGHT DAYS  OF  ARRAIGNMENT
ON THE FIRST CHARGING INSTRUMENT:
  (A)  INFORMATION  THAT  CASTS DOUBT ON THE GUILT OF THE ACCUSED OF ANY
CHARGE IN THE INDICTMENT, INFORMATION OR OTHER CHARGING INSTRUMENT;
  (B) INFORMATION THAT CASTS DOUBT ON THE ADMISSIBILITY OF EVIDENCE THAT
THE PROSECUTOR ANTICIPATES OFFERING IN HIS OR HER CASE-IN-CHIEF AND THAT
COULD BE THE BASIS OF A MOTION TO SUPPRESS OR EXCLUDE;
  (C) A STATEMENT AS TO WHETHER ANY PROMISE, REWARD, OR  INDUCEMENT  HAS
BEEN GIVEN TO ANY WITNESS WHOM THE PROSECUTOR ANTICIPATES CALLING IN HIS
OR  HER  CASE-IN-CHIEF,  IDENTIFYING  BY NAME EACH SUCH WITNESS AND EACH
PROMISE, REWARD, OR INDUCEMENT, AND A COPY OF ANY  PROMISE,  REWARD,  OR
INDUCEMENT THAT HAS BEEN REDUCED TO WRITING OR PRINT;
  (D)  A  COPY  OF ANY CRIMINAL RECORD OF ANY WITNESS IDENTIFIED BY NAME
WHOM THE PROSECUTOR ANTICIPATES CALLING  IN  HIS  OR  HER  CASE-IN-CHIEF
INCLUDING  THE  COURT  OF CONVICTION, THE CRIME OF WHICH THE WITNESS WAS
CONVICTED, THE DATE OF THE CONVICTION, AND THE NUMBER OF THE CASE;
  (E) A WRITTEN STATEMENT SETTING OUT CRIMINAL CHARGES PENDING AGAINST A
WITNESS, WHO SHALL BE IDENTIFIED BY NAME,  WHOM  THE  PROSECUTOR  ANTIC-
IPATES CALLING IN HIS OR HER CASE-IN-CHIEF;
  (F)  A  WRITTEN  STATEMENT  SETTING  OUT  THE  FAILURE  OF A POTENTIAL
WITNESS, WHO SHALL BE IDENTIFIED BY NAME, TO MAKE A POSITIVE IDENTIFICA-
TION OF THE ACCUSED IN AN IDENTIFICATION PROCEDURE THAT  HAS  BEEN  HELD
WITH SUCH A WITNESS WITH RESPECT TO THE CRIME;
  (G)  A  WRITTEN OR ORAL STATEMENT FROM ANY PERSON OR OTHER INFORMATION
THAT TENDS TO SUPPORT A DEFENSE TO THE CHARGES.
  3. PRETRIAL DELIVERY.  WITHOUT A MOTION BY THE DEFENSE, THE  FOLLOWING
INFORMATION  MUST  BE  DISCLOSED AND DELIVERED NOT LATER THAN TWENTY-ONE
DAYS PRIOR TO THE DATE FIRST SET FOR TRIAL:
  (A) INFORMATION THAT CASTS DOUBT ON THE  CREDIBILITY  OR  ACCURACY  OF
EVIDENCE,  INCLUDING  TESTIMONY OF WITNESSES, CONCERNING MATERIAL ISSUES
RELATING TO WHETHER A  CRIME  WAS  COMMITTED  AND  WHETHER  THE  ACCUSED
COMMITTED  IT,  THAT THE PROSECUTOR ANTICIPATES PRESENTING IN HIS OR HER
CASE-IN-CHIEF;
  (B) ANY INCONSISTENT WRITTEN OR ORAL STATEMENT REGARDING  THE  ALLEGED
CRIMINAL CONDUCT OF THE ACCUSED OR A DESCRIPTION OF SUCH STATEMENT, MADE
BY  A  PERSON  WHOM  THE  PROSECUTION  ANTICIPATES CALLING IN HIS OR HER
CASE-IN-CHIEF;
  (C) ANY STATEMENT  REGARDING  THE  ALLEGED  CRIMINAL  CONDUCT  OF  THE
ACCUSED OR A DESCRIPTION OF SUCH STATEMENT, MADE ORALLY OR IN WRITING BY
ANY  PERSON,  THAT  IS  INCONSISTENT  WITH A STATEMENT MADE ORALLY OR IN
WRITING BY A WITNESS THE PROSECUTION ANTICIPATES CALLING IN HIS  OR  HER
CASE-IN-CHIEF;
  (D) ANY INFORMATION REFLECTING BIAS OR PREJUDICE AGAINST THE DEFENDANT
BY  A  WITNESS  WHOM  THE  PROSECUTOR  ANTICIPATES CALLING IN HIS OR HER
CASE-IN-CHIEF;
  (E) A WRITTEN DESCRIPTION OF ANY PRIOR  BAD  ACT  THAT  CONSTITUTES  A
CRIME KNOWN BY THE PROSECUTOR TO HAVE BEEN COMMITTED BY ANY WITNESS WHOM
THE PROSECUTION ANTICIPATES CALLING IN HIS OR HER CASE-IN-CHIEF;
  (F) INFORMATION KNOWN OR ASCERTAINABLE TO THE PROSECUTOR OF ANY MENTAL
OR  PHYSICAL  IMPAIRMENT  OF ANY WITNESS WHOM THE PROSECUTOR ANTICIPATES
CALLING IN HIS OR HER CASE-IN-CHIEF THAT MAY CAST DOUBT ON  THE  ABILITY
OF  THAT WITNESS TO OBSERVE AND ACCURATELY AND TRUTHFULLY RECALL, AND TO
RELATE INFORMATION ABOUT A RELEVANT EVENT OR OTHER MATERIAL INFORMATION;

A. 11446--A                         3

  (G) ANY OTHER INFORMATION THAT IS WITHIN THE  DEFINITION  SET  OUT  IN
SUBDIVISION ONE OF THIS SECTION;
  (H)  ANYTHING REQUIRED TO BE DISCLOSED, PRIOR TO TRIAL, TO THE DEFEND-
ANT BY THE PROSECUTOR, PURSUANT TO THE CONSTITUTION OF THIS STATE OR  OF
THE UNITED STATES.
  4.  DELIVERY  OF  INFORMATION.  THE  PROSECUTOR  SHALL DISCLOSE TO THE
DEFENDANT AND MAKE AVAILABLE FOR INSPECTION, EXAMINATION,  PHOTOCOPYING,
COPYING,  PRINT  OUT,  RETRIEVAL,  TESTING, OR INTERVIEW (FOR STATEMENTS
PREVIOUSLY MADE BUT NOT RECORDED IN WRITING OR MECHANICALLY) OR  BY  ANY
OTHER  METHOD  OF  ACCESS,  ALL INFORMATION INCLUDING BUT NOT LIMITED TO
THAT IN PROPERTY, DOCUMENTS, REPORTS, RECORDINGS,  VIDEOS,  RECORDS,  IN
THE  KNOWLEDGE  OF  A  PERSON  BUT  NOT RECORDED (ALL HEREINAFTER CALLED
INFORMATION) WHICH WOULD PROVIDE THE INFORMATION SET OUT IN SUBDIVISIONS
ONE, TWO, AND THREE OF THIS SECTION REGARDLESS OF WHETHER SUCH  INFORMA-
TION  WOULD  ITSELF CONSTITUTE ADMISSIBLE EVIDENCE AT TRIAL OR IS OTHER-
WISE KNOWN TO THE DEFENDANT.
  5. CONTINUING OBLIGATION. IF AT ANY TIME AFTER THE  TIME  PERIODS  SET
FORTH  ABOVE THE PROSECUTOR LEARNS OF ADDITIONAL INFORMATION REQUIRED TO
BE DISCLOSED TO THE DEFENDANT PURSUANT  TO  SUBDIVISIONS  ONE,  TWO  AND
THREE  OF THIS SECTION, THE PROSECUTOR SHALL, PURSUANT TO THE CONTINUING
OBLIGATION TO DELIVER TO THE DEFENSE THE INFORMATION REQUIRED BY  SUBDI-
VISIONS  ONE, TWO AND THREE OF THIS SECTION, PROMPTLY NOTIFY THE DEFEND-
ANT AND THE COURT OF THE EXISTENCE OF SUCH INFORMATION AND EXPEDITIOUSLY
MAKE SUCH ITEMS AVAILABLE TO THE DEFENDANT FOR INSPECTION, PHOTOCOPYING,
COPYING, TESTING OR OTHER REPRODUCTION AS SET OUT IN SUBDIVISION FOUR OF
THIS SECTION.
  6. APPLICATION TO THE COURT. (A) THE PROSECUTOR MAY SEEK A  PROTECTIVE
ORDER BASED ON A REASONABLE SHOWING THAT A WITNESS OR OTHER PERSON WOULD
BE ENDANGERED BY DISCLOSURE OF THE INFORMATION REQUIRED BY THIS SECTION.
IF  THE  COURT  FINDS  THAT THE PROSECUTOR HAS MADE A REASONABLE SHOWING
THAT A WITNESS OR OTHER PERSON WOULD BE ENDANGERED  BY  DISCLOSURE,  THE
COURT  SHALL CONDUCT AN IN CAMERA REVIEW OF THE CLAIM, AND, IF APPROPRI-
ATE, REDACT THE INFORMATION GIVEN TO THE DEFENSE UNTIL SUCH TIME AS  THE
LAW  OR OTHER CIRCUMSTANCES OF THE CASE REQUIRE DISCLOSURE OF THE INFOR-
MATION.
  (B) IF IN THE CIRCUMSTANCES OF A CASE, THE PROSECUTOR,  AT  ANY  TIME,
ASSERTS  THAT  INFORMATION WAS NOT DELIVERED OR WAS DELIVERED LATE OR IS
NOT EXCULPATORY WITHIN THE TERMS OF THIS STATUTE OR AS REQUIRED  BY  THE
STATE OR UNITED STATES CONSTITUTIONS AND WAS NOT DELIVERED BASED ON THAT
REASON,  THE  COURT  SHALL  MAKE  AN INDEPENDENT EVALUATION AND DETERMI-
NATION, AFTER HEARING FROM DEFENSE COUNSEL, AS TO WHETHER  THE  INFORMA-
TION SHOULD BE DELIVERED PURSUANT TO THIS SUBDIVISION.
  (C)  THE  PROSECUTOR'S  VIEW OF WHETHER THE INFORMATION IS TRUTHFUL OR
ACCURATE SHALL NOT BE A FACTOR USED BY THE PROSECUTOR OR  THE  COURT  TO
DETERMINE  WHETHER  THE  INFORMATION  MUST  BE  DELIVERED TO THE DEFENSE
PURSUANT TO THIS SECTION.
  7. INQUIRIES. PRIOR TO THE REQUIRED DATES FOR THE DISCLOSURE OF INFOR-
MATION TO THE DEFENSE, THE PROSECUTOR  SHALL  MAKE  INQUIRIES  TO  LEARN
WHETHER  THOSE AGENCIES DEEMED BY LAW TO BE ASSISTING THE PROSECUTOR ARE
IN POSSESSION OF INFORMATION DEFINED IN SUBDIVISIONS ONE, TWO, AND THREE
OF THIS SECTION, AND SHALL OBTAIN THE INFORMATION FOR  DELIVERY  TO  THE
DEFENSE IN ACCORD WITH THIS SECTION.
  8. CONFERENCE AND CERTIFICATION. (A) AT A TIME SET BY THE COURT BEFORE
THE  FIRST  DESIGNATED TRIAL DATE AND AT SUCH FURTHER TIMES AS THE COURT
ORDERS, THE PROSECUTOR SHALL IDENTIFY FOR THE COURT THE INFORMATION THAT
HAS BEEN DELIVERED TO THE DEFENSE AND CERTIFY THE  DELIVERY.  THE  COURT

A. 11446--A                         4

SHALL HOLD A CONFERENCE TO DETERMINE WHETHER THE PROSECUTOR HAS EXAMINED
THE  PROSECUTOR'S  FILE  AND THE FILES OF THOSE ASSISTING THE PROSECUTOR
AND HAS DELIVERED THE REQUIRED INFORMATION.
  (B) IF THE PROSECUTOR DELIVERS TO THE DEFENSE PURSUANT TO THIS STATUTE
LARGE QUANTITIES OF INFORMATION, WHETHER OF DOCUMENTS, ELECTRONIC INFOR-
MATION,  OR  OTHER FORMAT, WITHOUT IDENTIFICATION OF ITS SIGNIFICANCE TO
THE CASE, THE COURT SHALL ESTABLISH IN THE CONFERENCE THE PROCEDURE  FOR
IDENTIFICATION OF THE INFORMATION AND IF NEEDED GRANT AN ADJOURNMENT FOR
THAT TO BE ACCOMPLISHED BY THE PROSECUTOR AND EXAMINED BY THE DEFENSE.
  9.  SANCTIONS  FOR  LATE  DELIVERY  OR  FAILURE TO DELIVER INFORMATION
DEFINED IN THIS SECTION. WHERE THERE IS A FAILURE BY THE  PROSECUTOR  TO
DELIVER  THE  INFORMATION SET OUT IN THIS SECTION, OR THE INFORMATION IS
DELIVERED AFTER THE REQUIRED TIME PERIOD, AT THE REQUEST OF THE  DEFENSE
OR  IN  THE COURT'S DISCRETION, THE COURT SHALL ORDER ONE OR MORE OF THE
FOLLOWING SANCTIONS:
  (A) GRANT AN APPROPRIATE EXTENSION OF TIME IN THE PROCEEDING TO  ALLOW
THE  DEFENSE  TO EXAMINE THE INFORMATION AND TO INVESTIGATE BASED ON THE
LATE DELIVERED INFORMATION. FOR THAT EFFORT, THE COURT MAY AUTHORIZE FOR
THE DEFENSE INVESTIGATORS, LAB TESTS, EXPERTS  AND  OTHER  RESOURCES  TO
CONDUCT THE DEFENSE INVESTIGATION;
  (B) REOPEN A PRE-TRIAL HEARING;
  (C) PRECLUDE INTRODUCTION OF EVIDENCE;
  (D)  INSTRUCT THE JURY THAT THE PROSECUTOR HAS NOT DELIVERED OR DELIV-
ERED ONLY AFTER IMPROPER DELAY EVIDENCE THAT SHOULD HAVE BEEN  DELIVERED
AND  DELIVERED TIMELY AND THAT THE JURORS MAY INFER THAT THE INFORMATION
NOT DISCLOSED WAS EXCULPATORY OR, IF NOT  DISCLOSED  OR  DISCLOSED  ONLY
AFTER  UNDUE DELAY, COULD HAVE LED TO EXCULPATORY INFORMATION AS DEFINED
IN SUBDIVISIONS ONE, TWO AND THREE OF THIS SECTION;
  (E) NOTIFY THE SUPERVISING PROSECUTOR;
  (F) REFER THE MATTER TO THE APPROPRIATE ATTORNEY DISCIPLINARY  COMMIT-
TEE PURSUANT TO SUBDIVISION TEN OF THIS SECTION IF AFTER CONDUCTING SUCH
INQUIRY  AS  THE  COURT DEEMS APPROPRIATE AND ISSUING AN OPINION STATING
THE COURT'S FINDINGS, THE ATTORNEY'S CONDUCT IS ASSERTED TO BE  IMPROPER
UNDER THE RULES OF PROFESSIONAL CONDUCT.
  10.  LAWYER  SANCTIONS.  (A) ANY JUDICIAL OPINION WHICH CONCLUDES THAT
THERE WAS AN INTENTIONAL OR RECKLESS FAILURE TO COMPLY WITH THIS SECTION
BY A PROSECUTOR SHALL BE FORWARDED BY THE CLERK OF THE  COURT  IN  WHICH
THE  OPINION IS FILED TO THE ATTORNEY DISCIPLINARY COMMITTEE WITH JURIS-
DICTION.
  (B) IF IN CONNECTION WITH THE OBLIGATION TO  DELIVER  INFORMATION  SET
OUT  IN  THIS  SECTION  OR  THE STATE AND UNITED STATES CONSTITUTIONS, A
TRIAL OR APPELLATE COURT HAS CONCLUDED THAT IN THE COURSE OF A  CRIMINAL
PROCEEDING,  A  PROSECUTOR  HAS  VIOLATED  RULES 3.4(A)(1), 3.4(A)(3) OR
3.8(B) OF THE RULES OF PROFESSIONAL CONDUCT, OR OTHER RELEVANT  STATUTES
AND  RULES,  BY INTENTIONALLY OR RECKLESSLY FAILING TO DELIVER OR TIMELY
DELIVER TO THE DEFENSE THE INFORMATION SET  OUT  IN  THIS  SECTION,  THE
CONDUCT  SHALL  BE REFERRED BY THE JUDGE PURSUANT TO RULE 100.3(D)(2) OF
THE CODE OF JUDICIAL CONDUCT TO THE ATTORNEY DISCIPLINARY  COMMITTEE  OF
THE APPROPRIATE JUDICIAL DISTRICT FOR PROCEEDINGS PURSUANT TO APPLICABLE
RULES.
  (C) IF AN ATTORNEY HAS A REASONABLE BASIS TO BELIEVE THAT A PROSECUTOR
HAS INTENTIONALLY OR RECKLESSLY FAILED TO DELIVER INFORMATION AS DEFINED
IN  THIS  STATUTE,  THAT ATTORNEY SHALL NOTIFY THE ATTORNEY DISCIPLINARY
COMMITTEE OF THE APPROPRIATE JUDICIAL DISTRICT PURSUANT TO  RULE  8.3(A)
OF  THE  RULES OF PROFESSIONAL CONDUCT FOR PROCEEDINGS PURSUANT TO COURT
RULES.

A. 11446--A                         5

  (D) IF MORE THAN ONE EVENT IS REFERRED TO  THE  ATTORNEY  DISCIPLINARY
COMMITTEE, THE REFERRALS SHALL BE CONSOLIDATED.
  11.  USE  OF  FALSE  INFORMATION. THE PROVISIONS OF SUBDIVISION TEN OF
THIS SECTION SHALL APPLY TO A PROSECUTOR FOR THE KNOWING OR RECKLESS USE
OF FALSE OR UNTRUTHFUL EVIDENCE.
  S 2. Subdivision 1 of section 240.20 of the criminal procedure law  is
amended by adding a new paragraph (l) to read as follows:
  (L) INFORMATION RESULTING FROM COMPARING DNA TEST RESULTS ON SPECIMENS
FROM CRIME SCENE SAMPLE OR SAMPLES OBTAINED IN THE COURSE OF AN INVESTI-
GATION  OF AN ALLEGED CRIME WITH THE DNA RECORDS MAINTAINED BY OR AVAIL-
ABLE THROUGH THE STATE DNA IDENTIFICATION INDEX ESTABLISHED PURSUANT  TO
NEW YORK LAW OR ANY OFFICIAL FEDERAL DNA INDEX.
  S  3. Subdivision 1 of section 440.10 of the criminal procedure law is
amended by adding a new paragraph (i) to read as follows:
  (I) THE PEOPLE HAVE FAILED TO PROVIDE OR TO PROVIDE IN A TIMELY MANNER
EVIDENCE EXCULPATORY TO THE DEFENSE AS DEFINED IN SECTION 240.25 OF THIS
CHAPTER AND HAVE FAILED TO PROVE THAT THERE WAS NO POSSIBILITY THAT  THE
INFORMATION WOULD HAVE AFFECTED THE DECISION.
  S  4.  This  act  shall take effect on the sixtieth day after it shall
have become a law.