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

                                  3775

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2009
                               ___________

Introduced by M. of A. LENTOL -- read once and referred to the Committee
  on Codes

AN  ACT  to  amend  the criminal procedure law, in relation to discovery
  procedure and requirements and to  repeal  subdivision  1  of  section
  240.10, section 240.45 and section 240.80 of such law relating thereto

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

  Section 1. Subdivision 1 of section 240.10 of the  criminal  procedure
law  is REPEALED and subdivisions 2, 3 and 4 are renumbered subdivisions
1, 2 and 3.
  S 2. The criminal procedure law is amended by  adding  a  new  section
240.15 to read as follows:
S 240.15 DISCOVERY BY DEFENDANT OF ARREST AND COMPLAINT REPORTS.
  UPON  ARRAIGNMENT, THE PROSECUTOR SHALL, SUBJECT TO A PROTECTIVE ORDER
PURSUANT TO SECTION 240.50 OF THIS ARTICLE, PROVIDE THE DEFENDANT WITH A
COPY OF ANY LAW ENFORCEMENT REPORT DESCRIBING THE ARREST AND  PROCESSING
OF  THE  DEFENDANT  AND  ANY  OFFICIAL LAW ENFORCEMENT REPORT BY WHICH A
CRIME IS REPORTED TO THE POLICE.
  S 3. The section heading and the opening paragraph of subdivision 1 of
section 240.20 of the criminal procedure law,  the  section  heading  as
added  by  chapter  412 of the laws of 1979 and the opening paragraph of
subdivision 1 as amended by chapter 317 of the laws of 1983, are amended
to read as follows:
  Discovery[; upon demand of] TO THE defendant.
  Except to the extent protected by  court  order,  [upon  a  demand  to
produce  by a defendant against whom] WITHIN FIFTEEN DAYS AFTER ARRAIGN-
MENT ON an indictment, superior court information, prosecutor's informa-
tion, information, or simplified information charging a misdemeanor  [is
pending], the prosecutor shall disclose to the defendant and make avail-
able  for  inspection,  photographing, copying or testing, the following
property:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05887-01-9
              

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  S 4. Paragraph (h) of subdivision 1 of section 240.20 of the  criminal
procedure law, as added by chapter 412 of the laws of 1979 and as relet-
tered by chapter 795 of the laws of 1984, is amended to read as follows:
  (h)  [Anything]  ANY  OTHER  PROPERTY  OR  INFORMATION  required to be
disclosed, prior to trial, to the defendant by the prosecutor,  pursuant
to the constitution of this state or of the United States.
  S  5. Subdivision 1 of section 240.20 of the criminal procedure law is
amended by adding four new paragraphs (l), (m), (n) and (o) to  read  as
follows:
  (L) A SCIENTIFIC REPORT OR TESTS WHICH TEND TO NEGATE THE GUILT OF THE
DEFENDANT.
  (M)  INFORMATION  ABOUT  A  LINE-UP,  SHOW-UP  OR OTHER IDENTIFICATION
PROCEDURE OR FROM A WITNESS WHICH INDICATES THAT SOMEONE OTHER THAN  THE
DEFENDANT COMMITTED THE CRIME.
  (N)  INFORMATION  ABOUT  A  LINE-UP,  SHOW-UP  OR OTHER IDENTIFICATION
PROCEDURE AT WHICH AN EYEWITNESS FAILED TO IDENTIFY THE DEFENDANT AS THE
PERPETRATOR OF THE CRIME.
  (O) REPORTS OR INTERVIEWS OF ANY KIND  INDICATING  THAT  A  PERSON  OR
PERSONS OTHER THAN THE DEFENDANT COMMITTED THE CRIME.
  S  6. Subdivision 2 of section 240.20 of the criminal procedure law is
renumbered subdivision 4 and three new subdivisions 2, 3 and 5 are added
to read as follows:
  2. WITHIN FIFTEEN DAYS OF ARRAIGNMENT, THE PROSECUTOR  SHALL,  SUBJECT
TO A PROTECTIVE ORDER, MAKE AVAILABLE TO THE DEFENDANT:
  (A)  ANY WRITTEN OR RECORDED STATEMENT, INCLUDING ANY TESTIMONY BEFORE
A GRAND JURY AND AN EXAMINATION VIDEOTAPED PURSUANT TO SECTION 190.32 OF
THIS CHAPTER, MADE BY A PERSON WHOM THE PROSECUTOR INTENDS TO CALL AS  A
WITNESS  AT  TRIAL,  AND  WHICH  RELATES  TO  THE  SUBJECT MATTER OF THE
WITNESS'S TESTIMONY.
  (B) A RECORD OF JUDGMENT OF CONVICTION OF A WITNESS THE PEOPLE  INTEND
TO  CALL AT TRIAL IF THE RECORD OF CONVICTION IS KNOWN BY THE PROSECUTOR
TO EXIST.
  (C) THE EXISTENCE OF ANY PENDING CRIMINAL ACTION AGAINST A WITNESS THE
PEOPLE INTEND TO CALL AT TRIAL, IF THE PENDING CRIMINAL ACTION IS  KNOWN
BY THE PROSECUTOR TO EXIST.
  (D)  ANY  PROMISES  OR  THREATS  TO, OR AGREEMENTS WITH, A WITNESS THE
PROSECUTION INTENDS TO CALL AT TRIAL, IF SUCH PROMISE, THREAT OR  AGREE-
MENT  IS  RELATED  TO THE WITNESS'S TESTIMONY AND IS KNOWN BY THE PROSE-
CUTION.
  (E) THE NAME, ADDRESS AND QUALIFICATIONS OF ANY EXPERT, OTHER THAN  AN
EXPERT  GOVERNED BY SECTION 250.10 OF THIS CHAPTER, THE PEOPLE INTEND TO
CALL AS A WITNESS AT TRIAL, AS WELL AS A WRITTEN REPORT BY THAT  WITNESS
SETTING  FORTH  IN  REASONABLE  DETAIL  THE  SUBJECT MATTER ON WHICH THE
EXPERT IS EXPECTED  TO  TESTIFY  INCLUDING  THE  WITNESS'S  OPINION  AND
CONCLUSIONS, IF ANY, AS WELL AS THE BASIS FOR THOSE OPINIONS AND CONCLU-
SIONS.
  THE PROVISIONS OF PARAGRAPHS (B) AND (C) OF THIS SUBDIVISION SHALL NOT
BE  CONSTRUED  TO  REQUIRE  THE  PROSECUTOR  TO FINGERPRINT A WITNESS OR
OTHERWISE CAUSE THE DIVISION OF CRIMINAL JUSTICE SERVICES OR  OTHER  LAW
ENFORCEMENT AGENCY OR COURT TO ISSUE A REPORT CONCERNING A WITNESS.
  3. IF AFTER COMPLYING WITH THE PROVISIONS OF THIS SECTION, ANY PROPER-
TY  OR  INFORMATION  WHICH  IS  REQUIRED  TO BE DISCLOSED COMES INTO THE
POSSESSION OF THE PROSECUTION,  THE  PROSECUTION  SHALL,  SUBJECT  TO  A
PROTECTIVE ORDER, PROMPTLY DISCLOSE SUCH PROPERTY OR INFORMATION.
  5.  AT THE COMMENCEMENT OF JURY SELECTION OR IN THE CASE OF A NON-JURY
TRIAL, BEFORE SUBMISSION OF EVIDENCE, THE PROSECUTOR SHALL, SUBJECT TO A

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PROTECTIVE ORDER, MAKE AVAILABLE TO THE DEFENSE ANY WRITTEN OR  RECORDED
STATEMENT  MADE BY A PERSON WHOM THE PROSECUTOR INTENDS TO CALL AT TRIAL
AND WHICH RELATES TO THE SUBJECT  MATTER  OF  THE  WITNESS'S  TESTIMONY,
INCLUDING UNREDACTED STATEMENTS PREVIOUSLY DISCLOSED IN REDACTED FORM.
  S 7. Subdivision 4 of section 240.20 of the criminal procedure law, as
added  by  chapter 412 of the laws of 1979 and renumbered by section six
of this act, is amended to read as follows:
  4. The prosecutor shall make a diligent, good faith effort  to  ascer-
tain  the  existence of [demanded] ANY property SUBJECT TO DISCOVERY and
to cause such property to be  made  available  for  discovery  where  it
exists  but  is  not  within  the  prosecutor's  possession,  custody or
control; provided, that the prosecutor shall not be required  to  obtain
by  subpoena  duces  tecum  [demanded]  material which the defendant may
thereby obtain.
  S 8. Section 240.30 of the criminal procedure law, as added by chapter
412 of the laws of 1979, subdivision 1 as amended by chapter 558 of  the
laws  of  1982  and the opening paragraph of subdivision 1 as amended by
chapter 317 of the laws of 1983, is amended to read as follows:
S 240.30  Discovery[; upon demand of] TO THE prosecutor.
  1. Except to the extent protected by court order, upon  [a  demand  to
produce] DISCLOSURE by the prosecutor PURSUANT TO SECTION 240.20 OF THIS
ARTICLE, a defendant against whom an indictment, superior court informa-
tion,  prosecutor's  information, information, or simplified information
charging a misdemeanor is pending shall disclose and make available  for
inspection, photographing, copying or testing, subject to constitutional
limitations:
  (a)  any  written report or document, or portion thereof, concerning a
physical or mental  examination,  or  scientific  test,  experiment,  or
comparisons,  made  by or at the request or direction of, the defendant,
if  the defendant intends to introduce such report or document at trial,
or if the defendant has filed a notice of intent to proffer  psychiatric
evidence  and such report or document relates thereto, or if such report
or document was made by a person, other than defendant,  whom  defendant
intends to call as a witness at trial; and
  (b)  any photograph, drawing, tape or other electronic recording which
the defendant intends to introduce at trial.
  2. AT THE COMMENCEMENT OF JURY SELECTION, THE DEFENDANT SHALL, SUBJECT
TO A PROTECTIVE ORDER, MAKE AVAILABLE TO THE PROSECUTOR:  (A) ANY  WRIT-
TEN OR RECORDED STATEMENT MADE BY A PERSON OTHER THAN THE DEFENDANT WHOM
THE  DEFENDANT  INTENDS  TO  CALL  AS  A WITNESS AT THE TRIAL, AND WHICH
RELATES TO THE SUBJECT MATTER  OF  THE  WITNESS'S  TESTIMONY,  INCLUDING
UNREDACTED STATEMENTS PREVIOUSLY DISCLOSED IN A REDACTED FORM;
  (B)  A  RECORD  OF JUDGMENT OF CONVICTION OF A WITNESS, OTHER THAN THE
DEFENDANT, THE DEFENDANT INTENDS TO CALL  AT  TRIAL  IF  THE  RECORD  OF
CONVICTION IS KNOWN BY THE DEFENDANT TO EXIST;
  (C)  THE  EXISTENCE  OF ANY PENDING CRIMINAL ACTION AGAINST A WITNESS,
OTHER THAN THE DEFENDANT, THE DEFENDANT INTENDS TO CALL AT TRIAL, IF THE
PENDING CRIMINAL ACTION IS KNOWN BY THE DEFENDANT TO EXIST;
  (D) ANY PROMISES OR THREATS TO, OR  AGREEMENTS  WITH,  A  WITNESS  THE
DEFENSE  INTENDS  TO CALL AT TRIAL, IF SUCH PROMISE, THREAT OR AGREEMENT
IS RELATED TO THE WITNESS'S TESTIMONY AND IS KNOWN BY THE CALLING PARTY;
AND
  (E) THE NAME, ADDRESS, AND QUALIFICATIONS OF ANY EXPERT, OTHER THAN AN
EXPERT GOVERNED BY SECTION 250.10 OF THIS CHAPTER, THE  DEFENSE  INTENDS
TO  CALL  AS  A  WITNESS  AT  TRIAL, AS WELL AS A WRITTEN REPORT BY THAT
WITNESS SETTING FORTH IN REASONABLE DETAIL THE SUBJECT MATTER  ON  WHICH

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THE  EXPERT  IS  EXPECTED TO TESTIFY INCLUDING THE WITNESS'S OPINION AND
CONCLUSIONS, IF ANY, AS WELL AS THE BASIS FOR THOSE OPINIONS AND CONCLU-
SIONS.
  3.  The  defense  shall make a diligent good faith effort to make such
property available for discovery where it exists but the property is not
within its possession, custody or control, provided, that the  defendant
shall not be required to obtain by subpoena duces tecum [demanded] mate-
rial that the prosecutor may thereby obtain.
  S 9. Section 240.35 of the criminal procedure law, as added by chapter
412 of the laws of 1979, is amended to read as follows:
S 240.35  Discovery; refusal [of demand] TO DISCLOSE.
  Notwithstanding  the  provisions of sections 240.20 and 240.30 OF THIS
ARTICLE, the prosecutor or the defendant, as the case may be, may refuse
to disclose  any  information  FOR  which  [he]  THAT  PARTY  reasonably
believes  [is  not  discoverable  by  a  demand  to produce, pursuant to
section 240.20 or section 240.30 as the case may be,  or  for  which  he
reasonably  believes]  a  protective  order  would  be warranted.   Such
refusal shall be made in a writing, which shall set forth the grounds of
such belief as fully as possible, consistent with the objective  of  the
refusal.    The writing shall be served upon the [demanding] OTHER party
and a copy shall be filed with the court.
  S 10. Section 240.40 of the criminal procedure law, as added by  chap-
ter  412 of the laws of 1979, subdivision 1 as amended by chapter 558 of
the laws of 1982, the opening paragraphs of  subdivisions  1  and  2  as
amended  by chapter 317 of the laws of 1983 and the closing paragraph of
subdivision 2 as amended by chapter 481 of the laws of 1983, is  amended
to read as follows:
S 240.40  Discovery; upon court order.
  1.  Upon  motion  of  a defendant against whom an indictment, superior
court information, prosecutor's information, information, or  simplified
information  charging  a misdemeanor is pending, the court in which such
accusatory instrument is pending:
  (a)  must order discovery as to any material  not  disclosed  [upon  a
demand]  pursuant  to  section  240.20 OF THIS ARTICLE, if it finds that
[the prosecutor's refusal to disclose such material is not justified]  A
PROTECTIVE ORDER SHOULD NOT BE ISSUED; (b) must, unless it is  satisfied
that  the people have shown good cause why such an order should [not] be
issued, order discovery or ISSUE any other order authorized by  subdivi-
sion  one  of  section  240.70  OF  THIS  ARTICLE as to any material not
disclosed [upon demand] pursuant to section 240.20 OF THIS ARTICLE where
the prosecutor has failed to serve a timely written refusal pursuant  to
section  240.35 OF THIS ARTICLE; and (c) [may] MUST order discovery with
respect to any other property, which the people intend to  introduce  at
the  trial[, upon a showing by the defendant that discovery with respect
to such property is material to the preparation of his defense, and that
the request is reasonable].  Upon granting the motion pursuant to  para-
graph  (c)  hereof,  the court shall, upon motion of the people [showing
such to be material to the  preparation  of  their  case  and  that  the
request  is  reasonable,]  condition  its  order of discovery by further
directing discovery by the people of property, of the same kind or char-
acter as that authorized to be inspected by the  defendant,  which  [he]
THE DEFENDANT intends to introduce at the trial.
  2.  Upon motion of the prosecutor, and subject to constitutional limi-
tation,  the  court  in which an indictment, superior court information,
prosecutor's information, information, or simplified information  charg-
ing a misdemeanor is pending:

A. 3775                             5

  (a)    must  order  discovery as to any property not disclosed [upon a
demand] pursuant to section 240.30 OF THIS ARTICLE, if it finds that the
defendant's refusal to disclose such material is not justified; and  (b)
may order the defendant to provide non-testimonial evidence.  Such order
may, among other things, require the defendant to:
  (i)  Appear in a line-up;
  (ii) Speak for identification by witness or potential witness;
  (iii)  Be fingerprinted;
  (iv)  Pose for photographs not involving reenactment of an event;
  (v)    Permit  the taking of samples of blood, hair or other materials
from his OR HER body in a manner not involving an unreasonable intrusion
thereof or a risk of serious physical injury thereto;
  (vi)  Provide specimens of his OR HER handwriting;
  (vii)  Submit to a reasonable physical or medical  inspection  of  his
body.
  This subdivision shall not be construed to limit, expand, or otherwise
affect  the  issuance  of a similar court order, as may be authorized by
law, before the filing of an accusatory instrument consistent with  such
rights  as  the defendant may derive from the constitution of this state
or of the United States. This section shall not be construed to limit or
otherwise affect the [adminstration] ADMINISTRATION of a  chemical  test
where  otherwise authorized pursuant to section one thousand one hundred
ninety-four-a of the vehicle and traffic law.
  3.  An order pursuant to this section may be denied, limited or condi-
tioned as provided in section 240.50 OF THIS ARTICLE, OTHERWISE  AUTHOR-
IZED  PURSUANT  TO  SECTION  ONE THOUSAND ONE HUNDRED NINETY-FOUR OF THE
VEHICLE AND TRAFFIC LAW.
  S 11. Section 240.45 of the criminal procedure law is REPEALED.
  S 12. Section 240.50 of the  criminal  procedure  law  is  amended  by
adding a new subdivision 1-a to read as follows:
  1-A.  THE  COURT  IN  WHICH  THE  CRIMINAL ACTION IS PENDING MAY, UPON
MOTION OF EITHER PARTY FOR AN ORDER TO REDACT THE NAME AND/OR ADDRESS OF
A WITNESS, ISSUE A PROTECTIVE ORDER DENYING, LIMITING,  CONDITIONING  OR
REGULATING DISCOVERY OF THE NAME AND/OR ADDRESS OF A WITNESS PURSUANT TO
THIS  ARTICLE  FOR  GOOD  CAUSE,  INCLUDING SUBSTANTIAL RISK OF PHYSICAL
HARM,  INTIMIDATION,  UNJUSTIFIED  ANNOYANCE  OR  EMBARRASSMENT  TO  THE
WITNESS  OR  AN ADVERSE EFFECT UPON THE LEGITIMATE NEEDS OF LAW ENFORCE-
MENT INCLUDING THE PROTECTION OF THE CONFIDENTIALITY OF INFORMANTS.
  S 13. Section 240.60 of the criminal procedure law, as added by  chap-
ter 412 of the laws of 1979, is amended to read as follows:
S 240.60  Discovery; continuing duty to disclose.
  If,  after  complying  with the provisions of this article or an order
pursuant thereto, a party finds, either before or  during  trial,  addi-
tional material subject to discovery or covered by such order, [he] THAT
PARTY  shall  promptly  comply  with  the  [demand or] order, [refuse to
comply with the demand where refusal is  authorized,]  or  apply  for  a
protective order.
  S  14.  Subdivision 1 of section 240.70 of the criminal procedure law,
as added by chapter 412 of the laws of  1979,  is  amended  to  read  as
follows:
  1.    If,  during the course of discovery proceedings, the court finds
that a party has failed to comply with any of  the  provisions  of  this
article, the court may order such party to permit discovery of the prop-
erty  not  previously disclosed, grant a continuance, issue a protective
order, prohibit the introduction of certain evidence or the  calling  of

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certain witnesses, GIVE AN ADVERSE INFERENCE INSTRUCTION TO THE TRIER OF
FACT or take any other appropriate action.
  S  15. Section 240.75 of the criminal procedure law, as added by chap-
ter 1 of the laws of 2000, is amended to read as follows:
S 240.75 Discovery; certain violations.
  The failure of the prosecutor  or  any  agent  of  the  prosecutor  to
disclose  statements that are required to be disclosed under subdivision
one of section 240.44 [or paragraph (a) of subdivision  one  of  section
240.45]  of  this  article shall not constitute grounds for any court to
order a new pre-trial hearing or set aside  a  conviction,  or  reverse,
modify or vacate a judgment of conviction in the absence of a showing by
the  defendant  that there is a reasonable possibility that the non-dis-
closure materially contributed to the  result  of  the  trial  or  other
proceeding; provided, however, that nothing in this section shall affect
or limit any right the defendant may have to a re-opened pre-trial hear-
ing  when such statements were disclosed before the close of evidence at
trial.
  S 16. Section 240.80 of the criminal procedure law is REPEALED.
  S 17. Subdivision 2 of section 240.90 of the criminal  procedure  law,
as  added  by  chapter  412  of  the laws of 1979, is amended to read as
follows:
  2.  [A] WITHIN FIFTEEN DAYS AFTER THE PROSECUTOR HAS DISCLOSED TO  THE
DEFENDANT PROPERTY DESCRIBED IN SECTION 240.20 OF THIS ARTICLE, A motion
by  a  defendant  for discovery shall be made as OTHERWISE prescribed in
section 255.20 of this chapter. SUCH MOTION MUST STATE THAT EACH ITEM OF
PROPERTY SOUGHT HAS NOT PREVIOUSLY BEEN DISCLOSED TO THE DEFENDANT.
  S 18. Subdivision 2 of section 710.30 of the criminal  procedure  law,
as  separately  amended  by  chapters  8 and 194 of the laws of 1976, is
amended to read as follows:
  2.  Such notice must be served  within  [fifteen]  THIRTY  days  after
arraignment  and  before trial, and upon such service the defendant must
be accorded reasonable opportunity to move  before  trial,  pursuant  to
subdivision one of section 710.40 OF THIS ARTICLE, to suppress the spec-
ified evidence.  For good cause shown, however, the court may permit the
people  to serve such notice, thereafter and in such case it must accord
the defendant reasonable opportunity thereafter to  make  a  suppression
motion.
  S 19. Subdivision 9 of section 65.20 of the criminal procedure law, as
added  by  chapter 505 of the laws of 1985 and renumbered by chapter 548
of the laws of 2007, is amended to read as follows:
  9. (a) Prior to the commencement of the hearing conducted pursuant  to
subdivision  five  of this section, the district attorney shall, subject
to a protective order, comply with the provisions of  subdivision  [one]
TWO  of  section  [240.45]  240.20  of  this chapter as they concern any
witness whom the district attorney intends to call at  the  hearing  and
the child witness.
  (b)  Before  a  defendant  calls  a witness at such hearing, he or she
must, subject to a protective  order,  comply  with  the  provisions  of
subdivision  two  of  section  [240.45]  240.30  of this chapter as they
concern all the witnesses the defendant intends to call at such hearing.
  S 20. Paragraph (a) of subdivision 14 of section 400.27 of the  crimi-
nal procedure law, as added by chapter 1 of the laws of 1995, is amended
to read as follows:
  (a)  At  a  reasonable  time  prior  to the sentencing proceeding or a
mental retardation hearing:

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  (i) the prosecutor shall, unless previously disclosed and subject to a
protective order, make available to the  defendant  the  statements  and
information  specified  in  subdivision  [one]  TWO  of section [240.45]
240.20 and make available  for  inspection,  photographing,  copying  or
testing the property specified in subdivision one of section 240.20; and
  (ii) the defendant shall, unless previously disclosed and subject to a
protective  order,  make available to the prosecution the statements and
information specified in subdivision two of section [240.45] 240.30  and
make  available  for  inspection,  photographing,  copying  or  testing,
subject to constitutional limitations, the reports, documents and  other
property specified in subdivision one of section 240.30.
  S  21.    This  act  shall  take  effect  on the first of January next
succeeding the date on which it shall have become a law,  provided  that
the  amendment  to subdivision 9 of section 65.20 of the criminal proce-
dure law, made by section nineteen of this act,  shall  not  affect  the
expiration  and repeal of such section of the criminal procedure law and
shall expire and be deemed repealed therewith.