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SECTION 245.20 OF THIS ARTICLE AS SOON AS PRACTICABLE BUT NOT LATER THAN
FIFTEEN CALENDAR DAYS AFTER THE DEFENDANT'S ARRAIGNMENT ON AN INDICT-
MENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFORMATION,
OR SIMPLIFIED INFORMATION CHARGING A MISDEMEANOR, EXCEPT THAT PORTIONS
OF MATERIALS CLAIMED TO BE NON-DISCOVERABLE MAY BE WITHHELD PENDING A
DETERMINATION AND RULING OF THE COURT UNDER SECTION 245.70 OF THIS ARTI-
CLE; BUT THE DEFENDANT MUST BE NOTIFIED IN WRITING THAT INFORMATION HAS
NOT BEEN DISCLOSED UNDER A PARTICULAR SECTION.
(B) THE PROSECUTION SHALL PERFORM ITS SUPPLEMENTAL DISCOVERY OBLI-
GATIONS UNDER SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE AS SOON
AS PRACTICABLE BUT NOT LATER THAN FIFTEEN CALENDAR DAYS BEFORE TRIAL.
(C) UPON TIMELY DEFENSE REQUEST, THE PROSECUTION SHALL DISCLOSE MATE-
RIALS UNDER PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS
ARTICLE TO ANY DEFENDANT WHO HAS BEEN ARRAIGNED IN A LOCAL CRIMINAL
COURT UPON A CURRENTLY UNDISPOSED OF FELONY COMPLAINT CHARGING AN
OFFENSE WHICH IS A SUBJECT OF A PROSPECTIVE OR PENDING GRAND JURY
PROCEEDING, NO LATER THAN FORTY-EIGHT HOURS BEFORE THE TIME SCHEDULED
FOR THE DEFENDANT TO TESTIFY AT A GRAND JURY PROCEEDING PURSUANT TO
SUBDIVISION FIVE OF SECTION 190.50 OF THIS CHAPTER.
2. DISCLOSURE PRIOR TO A GUILTY PLEA DEADLINE. IF THE PROSECUTION HAS
IMPOSED A GUILTY PLEA DEADLINE, BUT DOES NOT PROVIDE THE DEFENDANT WITH
MATERIAL DISCLOSURE LISTED IN SUBDIVISION ONE OF SECTION 245.20 OF THIS
ARTICLE AT LEAST THIRTY CALENDAR DAYS BEFORE THE GUILTY PLEA DEADLINE,
THE COURT, UPON MOTION OF THE DEFENDANT, SHALL CONSIDER THE IMPACT OF
THE FAILURE TO PROVIDE SUCH DISCLOSURE ON THE DEFENDANT'S DECISION TO
ACCEPT OR REJECT A GUILTY PLEA OFFER. IF THE COURT DETERMINES THAT THE
PROSECUTOR'S FAILURE TO PROVIDE SUCH DISCLOSURE MATERIALLY AFFECTED THE
DEFENDANT'S DECISION TO REJECT A GUILTY PLEA OFFER AND THE PROSECUTOR
DECLINES TO REINSTATE THAT LAPSED GUILTY PLEA OFFER, THE PRESUMPTIVE
MINIMUM REMEDY OR SANCTION SHALL BE PRECLUSION FROM ADMISSION AT TRIAL
OF ANY EVIDENCE NOT DISCLOSED AT LEAST THIRTY CALENDAR DAYS BEFORE THE
DEADLINE. IF THE COURT DETERMINES, UPON MOTION OF THE DEFENDANT MADE
PRIOR TO SENTENCING, THAT THE PROSECUTOR'S FAILURE TO PROVIDE DISCLOSURE
LISTED IN PARAGRAPH (J) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS
ARTICLE MATERIALLY AFFECTED THE DEFENDANT'S DECISION TO ACCEPT A GUILTY
PLEA OFFER, THE COURT SHALL VACATE THE GUILTY PLEA AND FURTHER
PROCEEDINGS SHALL BE HAD ON THE ACCUSATORY INSTRUMENT.
3. DEFENDANT'S PERFORMANCE OF OBLIGATIONS. THE DEFENDANT SHALL PERFORM
HIS OR HER DISCOVERY OBLIGATIONS UNDER SUBDIVISION THREE OF SECTION
245.20 OF THIS ARTICLE NOT LATER THAN THIRTY CALENDAR DAYS AFTER BEING
SERVED WITH THE PROSECUTION'S CERTIFICATE OF COMPLIANCE PURSUANT TO
SUBDIVISION ONE OF SECTION 245.50 OF THIS ARTICLE, EXCEPT THAT PORTIONS
OF MATERIALS CLAIMED TO BE NON-DISCOVERABLE MAY BE WITHHELD PENDING A
DETERMINATION AND RULING OF THE COURT UNDER SECTION 245.70 OF THIS ARTI-
CLE; BUT THE PROSECUTION MUST BE NOTIFIED IN WRITING THAT INFORMATION
HAS NOT BEEN DISCLOSED UNDER A PARTICULAR SECTION.
§ 245.20 AUTOMATIC DISCOVERY.
1. INITIAL DISCOVERY FOR THE DEFENDANT. THE PROSECUTION SHALL DISCLOSE
TO THE DEFENDANT, AND PERMIT THE DEFENDANT TO DISCOVER, INSPECT, COPY OR
PHOTOGRAPH, EACH OF THE FOLLOWING ITEMS AND INFORMATION WHEN IT IS IN
THE POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR PERSONS UNDER
THE PROSECUTION'S DIRECTION OR CONTROL:
(A) ALL WRITTEN AND RECORDED STATEMENTS, AND THE SUBSTANCE OF ALL ORAL
STATEMENTS, MADE BY THE DEFENDANT OR A CO-DEFENDANT WHICH RELATE TO THE
SUBJECT MATTER OF THE CASE OR ARE OTHERWISE RELEVANT;
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(B) ALL TRANSCRIPTS OF THE TESTIMONY OF A PERSON WHO HAS TESTIFIED
BEFORE ANY GRAND JURY WHEN THE TESTIMONY RELATES TO THE SUBJECT MATTER
OF THE CASE OR IS OTHERWISE RELEVANT;
(C) THE NAMES, KNOWN ALIASES, ADDRESSES AND BIRTH DATES OF ALL
PERSONS, OTHER THAN LAW ENFORCEMENT PERSONNEL, WHOM THE PROSECUTOR KNOWS
TO HAVE EVIDENCE OR INFORMATION RELEVANT TO ANY OFFENSE CHARGED OR TO A
POTENTIAL DEFENSE THERETO, INCLUDING A DESIGNATION BY THE PROSECUTOR AS
TO WHICH OF THOSE PERSONS MAY BE CALLED AS WITNESSES;
(D) THE NAME, RANK, SHIELD NUMBER AND BUSINESS ADDRESS OF ALL LAW
ENFORCEMENT PERSONNEL WHOM THE PROSECUTOR KNOWS TO HAVE EVIDENCE OR
INFORMATION RELEVANT TO ANY OFFENSE CHARGED OR TO A POTENTIAL DEFENSE
THERETO;
(E) ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING
OR RECORDING, WHICH RELATE TO THE SUBJECT MATTER OF THE CASE OR ARE
OTHERWISE RELEVANT AND WERE MADE BY PERSONS WHOM THE PROSECUTOR KNOWS TO
HAVE EVIDENCE OR INFORMATION RELEVANT TO ANY OFFENSE CHARGED OR TO A
POTENTIAL DEFENSE THERETO;
(F) INTENDED EXPERT OPINION EVIDENCE, INCLUDING THE NAME, BUSINESS
ADDRESS, CURRENT CURRICULUM VITAE, AND A LIST OF PUBLICATIONS OF EACH
INTENDED EXPERT WITNESS, AND ALL REPORTS PREPARED BY THE EXPERT THAT
PERTAIN TO THE CASE, OR IF NO REPORT IS PREPARED, A WRITTEN STATEMENT OF
THE FACTS AND OPINIONS TO WHICH THE EXPERT IS EXPECTED TO TESTIFY AND A
SUMMARY OF THE GROUNDS FOR EACH OPINION. THIS SUBDIVISION DOES NOT ALTER
OR IN ANY WAY AFFECT THE PROCEDURES, OBLIGATIONS OR RIGHTS SET FORTH IN
SECTION 250.10 OF THIS TITLE. IF IN THE EXERCISE OF REASONABLE DILIGENCE
THIS INFORMATION IS UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD
SPECIFIED IN SUBDIVISION ONE OF SECTION 245.10 OF THIS ARTICLE, THAT
PERIOD SHALL BE STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SECTION
245.75 OF THIS ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON
AS PRACTICABLE AND NOT LATER THAN SIXTY CALENDAR DAYS BEFORE TRIAL,
UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.75 OF THIS ARTICLE;
(G) ALL POLICE REPORTS, LAW ENFORCEMENT AGENCY REPORTS, POLICE OFFICER
MEMO BOOK ENTRIES AND LOG ENTRIES AND NOTES, INTENDED EXHIBITS, TAPES
AND OTHER ELECTRONIC RECORDINGS, PHOTOGRAPHS, DRAWINGS, AND TANGIBLE
OBJECTS WHICH RELATE TO THE SUBJECT MATTER OF THE CASE OR ARE OTHERWISE
RELEVANT, INCLUDING ANY PHOTOGRAPH, PHOTOCOPY OR REPRODUCTION MADE BY OR
AT THE DIRECTION OF LAW ENFORCEMENT PERSONNEL OF ANY PROPERTY PRIOR TO
ITS RELEASE PURSUANT TO SECTION 450.10 OF THE PENAL LAW;
(H) ALL REPORTS, DOCUMENTS, RESULTS AND INFORMATION CONCERNING SCIEN-
TIFIC TESTS AND EXPERIMENTS AND COMPARISONS, AND PHYSICAL AND MENTAL
EXAMINATIONS OF ANY PERSON, WHICH RELATE TO THE SUBJECT MATTER OF THE
CASE OR ARE OTHERWISE RELEVANT;
(I) ALL TANGIBLE OBJECTS OBTAINED FROM OR ALLEGEDLY BELONGING TO THE
DEFENDANT OR A CO-DEFENDANT, INCLUDING A DESIGNATION BY THE PROSECUTOR
AS TO WHICH TANGIBLE OBJECTS WERE PHYSICALLY OR CONSTRUCTIVELY POSSESSED
BY THE DEFENDANT AND WERE RECOVERED DURING A SEARCH OR SEIZURE BY A
POLICE OFFICER OR OTHER PUBLIC SERVANT OR AN AGENT THEREOF, AND WHICH
TANGIBLE OBJECTS WERE RECOVERED BY A POLICE OFFICER OR OTHER PUBLIC
SERVANT OR AN AGENT THEREOF AFTER ALLEGEDLY BEING ABANDONED BY THE
DEFENDANT. IF THE PROSECUTION INTENDS TO PROVE THE DEFENDANT'S
POSSESSION OF ANY TANGIBLE OBJECTS SOLELY BY MEANS OF A STATUTORY
PRESUMPTION OF POSSESSION UNDER SECTION 220.25 OR 265.15 OF THE PENAL
LAW OR ANOTHER PROVISION, IT SHALL ALSO DESIGNATE THAT INTENTION AS TO
EACH SUCH OBJECT. IN ADDITION THE PROSECUTOR SHALL DESIGNATE THE
LOCATIONS FROM WHICH ALL TANGIBLE OBJECTS WERE RECOVERED;
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(J) ALL EVIDENCE AND INFORMATION WHICH TENDS TO NEGATE THE DEFENDANT'S
GUILT OR TO MITIGATE THE DEFENDANT'S CULPABILITY AS TO A CHARGED
OFFENSE, OR WHICH TENDS TO SUPPORT A POTENTIAL DEFENSE THERETO, OR WHICH
TENDS TO SUPPORT A MOTION TO SUPPRESS EVIDENCE ON CONSTITUTIONAL
GROUNDS, OR WHICH WOULD TEND TO REDUCE THE PUNISHMENT OF THE DEFENDANT.
(I) SUCH EVIDENCE OR INFORMATION INCLUDES BUT IS NOT LIMITED TO: AN
OVERT OR TACIT LENIENCY OFFER OR DEAL WITH A POTENTIAL PROSECUTION
WITNESS OR AN INFORMANT; A POTENTIAL PROSECUTION WITNESS'S OR AN
INFORMANT'S PRIOR INCONSISTENT STATEMENTS; INFORMATION INDICATING A
POTENTIAL PROSECUTION WITNESS'S OR AN INFORMANT'S POSSIBLE BIAS, INTER-
EST, HOSTILITY, OR REASONS TO FABRICATE; INFORMATION THAT TENDS TO
UNDERCUT THE BELIEVABILITY OF A POTENTIAL PROSECUTION WITNESS'S OR AN
INFORMANT'S FACTUAL ACCOUNT; PRIOR CONDUCT, MISCONDUCT AND CRIMINAL ACTS
THAT TEND TO UNDERCUT THE CREDIBILITY OF A POTENTIAL PROSECUTION WITNESS
OR AN INFORMANT; AND INFORMATION THAT TENDS TO UNDERCUT THE PROOF OF AN
ELEMENT OF A CHARGED OFFENSE OR THAT OTHERWISE TENDS TO INDICATE THE
DEFENDANT MAY NOT BE GUILTY.
(II) DISCLOSURE IS REQUIRED EVEN IF THE PROSECUTION DOUBTS THE BELIEV-
ABILITY OR USEFULNESS TO THE DEFENDANT OF THE EVIDENCE OR INFORMATION,
OR BELIEVES IT CAN BE RECONCILED WITH THE PROSECUTION'S OTHER EVIDENCE;
OR IF IT HAS BOTH AN INCULPATORY AND AN EXCULPATORY EFFECT; OR IF IT
RELATES TO A POTENTIAL DEFENSE DIFFERENT FROM THAT WHICH HAS BEEN
ANNOUNCED OR IS BEING PURSUED; OR IF IT HAS NOT BEEN MEMORIALIZED OR
RECORDED IN TANGIBLE FORM; OR IF IT IS NOT ADMISSIBLE AS EVIDENCE IN ITS
PRESENT FORM; OR IF IT IS KNOWN TO THE DEFENDANT; OR IF IT RELATES TO A
PERSON WHOM THE PROSECUTION DOES NOT INTEND TO CALL AT TRIAL BUT WHO
POSSESSES EXCULPATORY INFORMATION;
(K) A SUMMARY OF ALL CORPOREAL OR NON-CORPOREAL OR VOICE IDENTIFICA-
TION PROCEDURES, INCLUDING NOT ONLY PROCEDURES IN WHICH AN EYEWITNESS
IDENTIFIED THE DEFENDANT BUT ALSO PROCEDURES IN WHICH AN EYEWITNESS DID
NOT IDENTIFY THE DEFENDANT WHEN THE OPPORTUNITY FOR SUCH IDENTIFICATION
EXISTED. THE SUMMARY SHALL INCLUDE:
(I) THE DATE, TIME, LOCATION, TYPE, AND RESULT OF EACH PROCEDURE;
(II) THE NAMES OF ALL PERSONS PRESENT AT EACH PROCEDURE IF KNOWN TO
LAW ENFORCEMENT;
(III) THE NAME AND ADDRESS OF EACH EYEWITNESS AT EACH PROCEDURE;
(IV) THE NUMBER AND SOURCE OF ALL PHOTOGRAPHS OR LINEUP PARTICIPANTS
USED IN EACH PROCEDURE;
(V) A COPY OF ALL PHOTOGRAPHS, PHOTOGRAPHIC ARRAYS, AND PHOTOGRAPHS
TAKEN OF ALL LINEUPS VIEWED BY AN EYEWITNESS;
(VI) THE DESCRIPTIONS OF SUSPECTS ENTERED INTO AN ELECTRONIC OR
COMPUTER PHOTOGRAPHIC IDENTIFICATION SYSTEM, AND A SAVED COLLECTION OF
THE PHOTOGRAPHIC IMAGES GENERATED BY EACH DESCRIPTION AND VIEWED BY EACH
EYEWITNESS;
(VII) WHETHER THE PROCEDURE WAS SIMULTANEOUS OR SEQUENTIAL;
(VIII) ALL STATEMENTS MADE IN THE PRESENCE OF OR BY EACH EYEWITNESS
THAT ARE RELEVANT TO THE ISSUE OF IDENTITY OR TO THE FAIRNESS OR ACCURA-
CY OF THE PROCEDURE, INCLUDING THE WORDS USED BY AN EYEWITNESS IN MAKING
ANY IDENTIFICATION AND ANY WORDS DESCRIBING HIS OR HER CERTAINTY OR
UNCERTAINTY IN AN IDENTIFICATION AT THE TIME IT WAS MADE;
(IX) ALL STATEMENTS MADE BY EACH EYEWITNESS REGARDING THE ROLE IN THE
CHARGED OFFENSE OF A PERSON IDENTIFIED AND ANY OTHER RELATIONSHIP
BETWEEN THEM;
(X) WHETHER THE EYEWITNESS SELECTED A DIFFERENT PERSON AS THE PERPE-
TRATOR OR INDICATED A BELIEF THAT HE OR SHE COULD NOT IDENTIFY THE
PERPETRATOR;
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(XI) WHETHER BEFORE THE PROCEDURE THE EYEWITNESS WAS INSTRUCTED THAT
THE PERPETRATOR MIGHT OR MIGHT NOT BE PRESENT;
(XII) WHETHER THE ADMINISTRATOR OF EACH PROCEDURE KNEW WHICH PERSON
WAS THE SUSPECT, AND WHETHER, BEFORE THE PROCEDURE, THE EYEWITNESS WAS
INSTRUCTED THAT THE ADMINISTRATOR DID NOT KNOW WHICH PERSON WAS THE
SUSPECT; AND
(XIII) IF THE PROSECUTION POSSESSES INFORMATION THAT AN EYEWITNESS
MADE A CORPOREAL OR NON-CORPOREAL OR VOICE OBSERVATION OF THE DEFENDANT
ON ANY OTHER OCCASION AFTER THE TIME OF THE CHARGED OFFENSE BUT BEFORE
TRIAL, REGARDLESS OF THE INVOLVEMENT OR LACK OF INVOLVEMENT OF A POLICE
OFFICER OR OTHER PUBLIC SERVANT IN THAT OBSERVATION, IT SHALL ALSO
DISCLOSE THAT INFORMATION;
(L) A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE TO PERSONS
WHO MAY BE CALLED AS WITNESSES, AS WELL AS REQUESTS FOR CONSIDERATION BY
PERSONS WHO MAY BE CALLED AS WITNESSES, AND COPIES OF ALL DOCUMENTS
RELEVANT TO A PROMISE, REWARD AND INDUCEMENT;
(M) WHETHER THE PROSECUTION HAS ANY EVIDENCE OR INFORMATION THAT HAS
BEEN PROVIDED BY A CONFIDENTIAL INFORMANT OR A JAILHOUSE INFORMANT WHICH
RELATES TO THE SUBJECT MATTER OF THE CASE OR IS OTHERWISE RELEVANT;
(N) WHETHER A SEARCH WARRANT HAS BEEN EXECUTED AND ALL DOCUMENTS
RELATING THERETO, INCLUDING BUT NOT LIMITED TO THE WARRANT, THE WARRANT
APPLICATION, ALL SUPPORTING AFFIDAVITS, A POLICE INVENTORY OF ALL PROP-
ERTY SEIZED UNDER THE WARRANT, AND A TRANSCRIPT OF ALL TESTIMONY OR
OTHER ORAL COMMUNICATIONS OFFERED IN SUPPORT OF THE WARRANT APPLICATION;
(O) WHETHER THERE HAS BEEN ANY ELECTRONIC SURVEILLANCE, INCLUDING BUT
NOT LIMITED TO WIRETAPPING OR VIDEO SURVEILLANCE, OF A RESIDENCE OR
BUSINESS OR TELEPHONE OR COMPUTER OR OTHER ELECTRONIC OR DIGITAL DEVICE
OF THE DEFENDANT, OR OF CONVERSATIONS TO WHICH THE DEFENDANT OR A CO-DE-
FENDANT WAS A PARTY, AND ALL RECORDINGS, TRANSCRIPTS, DOCUMENTS,
WARRANTS AND WARRANT APPLICATION MATERIALS RELATING THERETO;
(P) THE APPROXIMATE DATE, TIME AND PLACE OF THE OFFENSE OR OFFENSES
CHARGED AND OF THE DEFENDANT'S SEIZURE AND ARREST;
(Q) WHETHER A CHARGED OFFENSE WAS SEEN BY A POLICE OFFICER OR OTHER
PUBLIC SERVANT FROM A POLICE OBSERVATION POST AND, IF SO, WHETHER VISUAL
MAGNIFICATION OR ENHANCEMENT EQUIPMENT WAS USED. THE PROSECUTION SHALL
PROVIDE COUNSEL FOR THE DEFENDANT WITH INFORMATION SUFFICIENT TO UNDER-
TAKE A REASONABLE INVESTIGATION OF THE LOCATION OF THE POLICE OBSERVA-
TION POST ON CONDITION THAT SUCH INFORMATION SHALL BE AVAILABLE ONLY TO
COUNSEL FOR THE DEFENDANT AND DEFENSE PERSONNEL AND NOT TO THE DEFENDANT
IF THE OBSERVATION POST IS STILL USED; EXCEPT THAT A DIFFERENT PROTEC-
TIVE ORDER PURSUANT TO SECTION 245.70 OF THIS ARTICLE MAY BE ISSUED BY
THE COURT FOR GOOD CAUSE SHOWN;
(R) ALL INFORMATION OR MATERIAL REQUIRED TO BE GATHERED OR MEMORIAL-
IZED PURSUANT TO SUBDIVISIONS ONE AND TWO OF SECTION 245.45 OF THIS
ARTICLE;
(S) ANY DOCUMENTATION THAT THE PROSECUTOR HAS OBTAINED THAT RELATES TO
THE SUBJECT MATTER OF THE CASE OR IS OTHERWISE RELEVANT, CONCERNING:
(I) CELLULAR TELEPHONE ACCOUNT INFORMATION AND RECORDS, CELLULAR TELE-
PHONE CALL DATA AND RECORDS, CELLULAR TELEPHONE TEXT MESSAGE DATA AND
RECORDS, RECORDINGS OF CELLULAR TELEPHONE MESSAGES, RECORDS OF CELLULAR
TELEPHONE TEXT MESSAGES, RECORDS OF CELLULAR TELEPHONE PHOTOGRAPHS, AND
CELLULAR TELEPHONE TOWER DATA AND RECORDS;
(II) EMAIL ACCOUNT INFORMATION AND RECORDS, AND RECORDS OF EMAIL
MESSAGES AND INSTANT MESSAGES;
(III) INTERNET SERVICE PROVIDER ACCOUNT INFORMATION AND RECORDS;
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(IV) INTERNET SOCIAL NETWORK ACCOUNT INFORMATION, RECORDS AND POST-
INGS;
(V) RECORDS OF INTERNET INSTANT MESSAGES, WEB PAGES AND WEB POSTINGS;
(VI) ACCOUNT INFORMATION, RECORDS AND DATA FROM A PERSONAL DIGITAL
ASSISTANT DEVICE OR OTHER ELECTRONIC OR DIGITAL DEVICE USED FOR COMMUNI-
CATION OR FOR RECORDING OR STORING INFORMATION;
(VII) DATA, RECORDS AND DOCUMENTS OBTAINED FROM A COMPUTER HARD DRIVE;
(VIII) ACCOUNT INFORMATION, RECORDS AND DATA FROM AN ELECTRONIC TOLL
OR MASS TRANSIT SYSTEM FEE PAYMENT DEVICE; AND
(IX) SIMILAR DOCUMENTATION THAT RELATES TO OTHER ELECTRONIC OR DIGITAL
COMMUNICATION, RECORDING, OR STORAGE DEVICES;
(T) ANY DOCUMENTATION THAT THE PROSECUTOR HAS OBTAINED REGARDING PRIOR
AND PENDING ACCUSATORY INSTRUMENTS, CONVICTIONS, DISPOSITIONS, AND THE
PROBATIONARY STATUS OF ALL DEFENDANTS AND ALL WITNESSES DESIGNATED AS
POTENTIAL PROSECUTION WITNESSES PURSUANT TO PARAGRAPH (C) OF THIS SUBDI-
VISION. IF COUNSEL FOR THE DEFENDANT LACKS ACCESS TO A DATABASE BY WHICH
TO OBTAIN THE COMPLETE CRIMINAL RECORD OF ALL DEFENDANTS AND ALL
WITNESSES DESIGNATED AS POTENTIAL PROSECUTION WITNESSES, THE PROSECUTOR
ALSO SHALL EITHER (I) PROVIDE COUNSEL FOR THE DEFENDANT WITH ACCESS TO
SUCH A DATABASE, OR (II) PROVIDE THE DEFENDANT WITH THAT INFORMATION;
(U) IN ANY PROSECUTION ALLEGING A VIOLATION OF THE VEHICLE AND TRAFFIC
LAW, WHERE THE DEFENDANT IS CHARGED BY INDICTMENT, SUPERIOR COURT INFOR-
MATION, PROSECUTOR'S INFORMATION, INFORMATION, OR SIMPLIFIED INFORMATION
CHARGING A MISDEMEANOR, THE MOST RECENT RECORD OF INSPECTION, CALI-
BRATION AND REPAIR OF MACHINES AND INSTRUMENTS UTILIZED TO PERFORM ANY
SCIENTIFIC TESTS AND EXPERIMENTS AND THE CERTIFICATION CERTIFICATE, IF
ANY, HELD BY THE OPERATOR OF THE MACHINE OR INSTRUMENT, AND ALL OTHER
DISCLOSURES REQUIRED UNDER THIS ARTICLE; AND
(V) IN ANY PROSECUTION ALLEGING A VIOLATION OF SECTION 156.05 OR
156.10 OF THE PENAL LAW, THE TIME, PLACE AND MANNER OF NOTICE GIVEN
PURSUANT TO SUBDIVISION EIGHT OF SECTION 156.00 OF THE PENAL LAW.
2. SUPPLEMENTAL DISCOVERY FOR THE DEFENDANT. THE PROSECUTION SHALL
DISCLOSE TO THE DEFENDANT A LIST OF ALL MISCONDUCT AND CRIMINAL ACTS OF
THE DEFENDANT NOT CHARGED IN THE INDICTMENT, SUPERIOR COURT INFORMATION,
PROSECUTOR'S INFORMATION, INFORMATION, OR SIMPLIFIED INFORMATION CHARG-
ING A MISDEMEANOR, WHICH THE PROSECUTION INTENDS TO USE AT TRIAL FOR
PURPOSES OF IMPEACHING THE CREDIBILITY OF THE DEFENDANT OR AS SUBSTAN-
TIVE PROOF OF ANY MATERIAL ISSUE IN THE CASE.
3. RECIPROCAL DISCOVERY FOR THE PROSECUTION. (A) THE DEFENDANT SHALL,
SUBJECT TO CONSTITUTIONAL LIMITATIONS, DISCLOSE TO THE PROSECUTION, AND
PERMIT THE PROSECUTION TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, ANY
MATERIAL AND RELEVANT EVIDENCE WITHIN THE DEFENDANT'S OR COUNSEL FOR THE
DEFENDANT'S POSSESSION OR CONTROL THAT IS DISCOVERABLE UNDER PARAGRAPHS
(F), (G), (H) AND (L) OF SUBDIVISION ONE OF THIS SECTION, WHICH THE
DEFENDANT INTENDS TO OFFER AT TRIAL, AND THE NAMES, KNOWN ALIASES,
ADDRESSES, BIRTH DATES, AND ALL STATEMENTS, WRITTEN OR RECORDED OR
SUMMARIZED IN ANY WRITING OR RECORDING, OF THOSE PERSONS OTHER THAN THE
DEFENDANT WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL.
(B) DISCLOSURE OF THE NAME, KNOWN ALIASES, ADDRESS, BIRTH DATE, AND
ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING OR
RECORDING, OF A PERSON WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS
FOR THE SOLE PURPOSE OF IMPEACHING A PROSECUTION WITNESS IS NOT REQUIRED
UNTIL AFTER SUCH PROSECUTION WITNESS HAS TESTIFIED AT TRIAL.
(C) IF IN THE EXERCISE OF REASONABLE DILIGENCE THE RECIPROCALLY
DISCOVERABLE INFORMATION UNDER PARAGRAPH (F) OF SUBDIVISION ONE OF THIS
SECTION IS UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD SPECIFIED
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IN SUBDIVISION THREE OF SECTION 245.10 OF THIS ARTICLE, THAT PERIOD
SHALL BE STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.75 OF
THIS ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON AS PRAC-
TICABLE AND NOT LATER THAN THIRTY CALENDAR DAYS BEFORE TRIAL, UNLESS AN
ORDER IS OBTAINED PURSUANT TO SECTION 245.75 OF THIS ARTICLE.
4. STAY OF AUTOMATIC DISCOVERY; REMEDIES AND SANCTIONS. SUBDIVISIONS
ONE AND THREE OF SECTION 245.10 OF THIS ARTICLE AND SUBDIVISIONS ONE,
TWO AND THREE OF THIS SECTION SHALL HAVE THE FORCE AND EFFECT OF A COURT
ORDER, AND FAILURE TO PROVIDE DISCOVERY PURSUANT TO THEM MAY RESULT IN
APPLICATION OF ANY REMEDIES OR SANCTIONS PERMITTED FOR NON-COMPLIANCE
WITH A COURT ORDER UNDER SECTION 245.85 OF THIS ARTICLE. HOWEVER, IF IN
THE JUDGMENT OF EITHER PARTY GOOD CAUSE EXISTS FOR DECLINING TO MAKE ANY
OF THE DISCLOSURES SET FORTH ABOVE, IT MAY MOVE FOR A PROTECTIVE ORDER
PURSUANT TO SECTION 245.70 OF THIS ARTICLE AND PRODUCTION OF THE ITEM
SHALL BE STAYED PENDING A RULING BY THE COURT. THE OPPOSING PARTY SHALL
BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A
PARTICULAR SECTION. WHEN SOME PARTS OF MATERIAL OR INFORMATION ARE
DISCOVERABLE BUT IN THE JUDGMENT OF A PARTY GOOD CAUSE EXISTS FOR
DECLINING TO DISCLOSE OTHER PARTS, THE DISCOVERABLE PARTS SHALL BE
DISCLOSED AND THE DISCLOSING PARTY SHALL GIVE NOTICE IN WRITING THAT
NONDISCOVERABLE PARTS HAVE BEEN WITHHELD.
5. NOTICE AND PRESERVATION OF EVIDENCE. (A) UPON RECEIPT OF INFORMA-
TION THAT ANY ITEM DESCRIBED IN SUBDIVISION ONE OF THIS SECTION EXISTS,
EXCEPT THAT IT IS NOT WITHIN THE POSSESSION, CUSTODY OR CONTROL OF THE
PROSECUTION OR PERSONS UNDER THE PROSECUTION'S DIRECTION OR CONTROL, THE
PROSECUTION SHALL EXPEDITIOUSLY NOTIFY THE DEFENDANT OF THE EXISTENCE OF
THE ITEM AND OF ALL INFORMATION KNOWN TO THE PROSECUTOR CONCERNING THE
ITEM'S LOCATION AND THE IDENTITY OF ANY PERSONS POSSESSING IT.
(B) AT ANY TIME, A PARTY MAY MOVE FOR AN ORDER TO ANY INDIVIDUAL,
AGENCY OR OTHER ENTITY IN POSSESSION, CUSTODY OR CONTROL OF ITEMS WHICH
RELATE TO THE SUBJECT MATTER OF THE CASE OR ARE OTHERWISE RELEVANT,
REQUIRING THAT SUCH ITEMS BE PRESERVED FOR A SPECIFIED PERIOD OF TIME.
IN ADDITION, AT ANY TIME, THE DEFENDANT MAY MOVE FOR AN ORDER TO ANY
INDIVIDUAL, AGENCY OR OTHER ENTITY IN POSSESSION, CUSTODY OR CONTROL OF
A CRIME SCENE THAT RELATES TO THE SUBJECT MATTER OF THE CASE OR IS
OTHERWISE RELEVANT, REQUIRING THAT COUNSEL FOR THE DEFENDANT BE GRANTED
PROMPT AND REASONABLE ACCESS TO INSPECT, PHOTOGRAPH OR MEASURE THAT
CRIME SCENE, AND THAT THE CONDITION OF THE CRIME SCENE REMAIN UNCHANGED
IN THE INTERIM. THE COURT SHALL HEAR AND RULE UPON SUCH MOTIONS EXPE-
DITIOUSLY. THE COURT MAY MODIFY OR VACATE SUCH ORDERS UPON A SHOWING
THAT PRESERVATION OF PARTICULAR EVIDENCE, OR GRANTING ACCESS TO A
PARTICULAR CRIME SCENE, WILL CREATE SIGNIFICANT HARDSHIP, ON CONDITION
THAT THE PROBATIVE VALUE OF THAT EVIDENCE OR THAT LOCATION IS PRESERVED
BY A SPECIFIED ALTERNATIVE MEANS.
§ 245.25 MATERIAL HELD BY OTHER GOVERNMENTAL PERSONNEL.
UPON THE DEFENDANT'S REQUEST AND DESIGNATION OF MATERIAL OR INFORMA-
TION WHICH WOULD BE DISCOVERABLE UNDER SECTION 245.20 OF THIS ARTICLE IF
IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR PERSONS
UNDER THE PROSECUTION'S DIRECTION OR CONTROL, BUT WHICH IS, IN FACT, IN
THE POSSESSION, CUSTODY OR CONTROL OF OTHER GOVERNMENTAL PERSONNEL, THE
PROSECUTOR SHALL USE DUE DILIGENCE AND MAKE GOOD FAITH EFFORTS TO CAUSE
SUCH MATERIAL OR INFORMATION TO BE MADE AVAILABLE TO THE DEFENDANT, AND
IF THE PROSECUTOR'S EFFORTS ARE UNSUCCESSFUL AND SUCH MATERIAL OR INFOR-
MATION OR OTHER GOVERNMENTAL PERSONNEL ARE SUBJECT TO THE JURISDICTION
OF THE COURT, THE COURT, UPON MOTION OF THE DEFENDANT, SHALL ISSUE SUIT-
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ABLE SUBPOENAS OR ORDERS TO CAUSE SUCH MATERIAL OR INFORMATION TO BE
MADE AVAILABLE FOR DISCLOSURE TO THE DEFENDANT.
§ 245.30 DISCRETIONARY DISCOVERY BY ORDER OF THE COURT.
1. THE COURT IN ITS DISCRETION MAY, UPON A SHOWING BY THE DEFENDANT
THAT THE REQUEST IS REASONABLE AND THAT THE DEFENDANT IS UNABLE WITHOUT
UNDUE HARDSHIP TO OBTAIN THE SUBSTANTIAL EQUIVALENT BY OTHER MEANS,
ORDER THE PROSECUTION, OR ANY INDIVIDUAL, AGENCY OR OTHER ENTITY SUBJECT
TO THE JURISDICTION OF THE COURT, TO MAKE AVAILABLE FOR DISCLOSURE TO
THE DEFENDANT ANY MATERIAL OR INFORMATION WHICH POTENTIALLY RELATES TO
THE SUBJECT MATTER OF THE CASE OR IS OTHERWISE RELEVANT. A MOTION UNDER
THIS SECTION MUST BE ON NOTICE TO ANY PERSON OR ENTITY AFFECTED BY THE
ORDER. THE COURT MAY, UPON REQUEST OF ANY PERSON OR ENTITY AFFECTED BY
THE ORDER, VACATE OR MODIFY THE ORDER IF COMPLIANCE WOULD BE UNREASON-
ABLE OR OPPRESSIVE. THE COURT MAY PERMIT A PARTY SEEKING OR OPPOSING A
DISCRETIONARY ORDER OF DISCOVERY UNDER THIS SECTION, OR ANOTHER AFFECTED
PERSON OR ENTITY, TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN CAMERA. ANY
SUCH PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY SHALL BE SEALED AND SHALL
CONSTITUTE A PART OF THE RECORD ON APPEAL.
2. 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 PURSUANT TO
SECTION 245.20 OF THIS ARTICLE, IF IT FINDS THAT THE PROSECUTOR'S
REFUSAL TO DISCLOSE SUCH MATERIAL IS NOT JUSTIFIED;
(B) MUST, UNLESS IT IS SATISFIED THAT THE PEOPLE HAVE SHOWN GOOD CAUSE
WHY SUCH AN ORDER SHOULD NOT BE ISSUED, ORDER DISCOVERY OR ANY OTHER
ORDER AUTHORIZED BY SECTION 245.85 OF THIS ARTICLE AS TO ANY MATERIAL
NOT DISCLOSED PURSUANT TO SECTION 245.20 OF THIS ARTICLE;
(C) MAY 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 PREPARA-
TION OF HIS OR HER DEFENSE, AND THAT THE REQUEST IS REASONABLE;
(D) WHERE PROPERTY IN THE PEOPLE'S POSSESSION, CUSTODY, OR CONTROL
THAT CONSISTS OF A DEOXYRIBONUCLEIC ACID ("DNA") PROFILE OBTAINED FROM
PROBATIVE BIOLOGICAL MATERIAL GATHERED IN CONNECTION WITH THE INVESTI-
GATION OR PROSECUTION OF THE DEFENDANT AND THE DEFENDANT ESTABLISHES
THAT SUCH PROFILE COMPLIES WITH FEDERAL BUREAU OF INVESTIGATION OR STATE
REQUIREMENTS, WHICHEVER ARE APPLICABLE AND AS SUCH REQUIREMENTS ARE
APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING A KEYBOARD SEARCH OR SIMILAR
COMPARISON, AND THAT THE DATA MEETS STATE DNA INDEX SYSTEM OR NATIONAL
DNA INDEX SYSTEM CRITERIA AS SUCH CRITERIA ARE APPLIED TO LAW ENFORCE-
MENT AGENCIES SEEKING SUCH A KEYBOARD SEARCH OR SIMILAR COMPARISON, THE
COURT MAY ORDER AN ENTITY THAT HAS ACCESS TO THE COMBINED DNA INDEX
SYSTEM OR ITS SUCCESSOR SYSTEM TO COMPARE SUCH DNA PROFILE AGAINST DNA
DATABANKS BY KEYBOARD SEARCHES, OR A SIMILAR METHOD THAT DOES NOT
INVOLVE UPLOADING, UPON NOTICE TO BOTH PARTIES AND THE ENTITY REQUIRED
TO PERFORM THE SEARCH, UPON A SHOWING BY THE DEFENDANT THAT SUCH A
COMPARISON IS MATERIAL TO THE PRESENTATION OF HIS OR HER DEFENSE AND
THAT THE REQUEST IS REASONABLE. FOR PURPOSES OF THIS PARAGRAPH, A
"KEYBOARD SEARCH" SHALL MEAN A SEARCH OF A DNA PROFILE AGAINST THE DATA-
BANK IN WHICH THE PROFILE THAT IS SEARCHED IS NOT UPLOADED TO OR MAIN-
TAINED IN THE DATABANK; AND
(E) MAY ORDER THE DIVISION OF CRIMINAL JUSTICE SERVICES TO COMPARE A
FINGERPRINT OBTAINED IN CONNECTION WITH THE INVESTIGATION OR PROSECUTION
OF THE DEFENDANT AGAINST THE STATEWIDE AUTOMATED FINGERPRINT IDENTIFICA-
A. 4360 9
TION SYSTEM, OR ITS SUCCESSOR SYSTEM, AND THE NATIONAL INTEGRATED AUTO-
MATED FINGERPRINT IDENTIFICATION SYSTEM, OR ITS SUCCESSOR SYSTEM, UPON
THE COURT'S DETERMINATION THAT SUCH FINGERPRINT COMPLIES WITH FEDERAL
BUREAU OF INVESTIGATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE
AND AS SUCH REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING
SUCH A COMPARISON AND UPON A SHOWING BY THE DEFENDANT THAT SUCH COMPAR-
ISON IS MATERIAL TO THE PREPARATION OF HIS OR HER DEFENSE, AND THAT THE
REQUEST IS REASONABLE.
UPON GRANTING THE MOTION PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVI-
SION, 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 CHARACTER AS
THAT AUTHORIZED TO BE INSPECTED BY THE DEFENDANT, WHICH HE OR SHE
INTENDS TO INTRODUCE AT THE TRIAL.
§ 245.35 DEPOSITIONS.
1. AVAILABILITY; USE. AT ANY TIME AFTER THE FILING OF AN ACCUSATORY
INSTRUMENT, THE COURT IN ITS DISCRETION MAY, UPON MOTION OF ANY PARTY,
ORDER THE EXAMINATION OF ANY PERSON EXCEPT THE DEFENDANT UPON ORAL DEPO-
SITION IF THE PARTY SHOWS THAT THE PERSON'S TESTIMONY IS MATERIAL TO THE
CASE OR NECESSARY ADEQUATELY TO PREPARE A DEFENSE, AND THAT THE PERSON
WILL NOT COOPERATE IN GRANTING A PERSONAL INTERVIEW. A PERSON'S STATE-
MENTS IN A DEPOSITION UNDER THIS SECTION MAY BE USED IN SUBSEQUENT
PROCEEDINGS IN THE SAME MANNER AS OTHER OUT-OF-COURT STATEMENTS.
2. MOTION FOR TAKING DEPOSITION; NOTICE; SERVICE. A MOTION FOR DEPOSI-
TION SHALL SPECIFY THE TIME AND PLACE FOR TAKING THE DEPOSITION AND THE
NAME AND ADDRESS OF EACH PERSON TO BE EXAMINED, TOGETHER WITH DESIGNATED
PAPERS, DOCUMENTS, TAPES OR OTHER ELECTRONIC RECORDINGS, PHOTOGRAPHS OR
OTHER TANGIBLE OBJECTS, NOT PRIVILEGED, TO BE PRODUCED AT THE SAME TIME
AND PLACE. THE COURT MAY CHANGE SUCH TERMS AND SPECIFY ANY ADDITIONAL
CONDITIONS GOVERNING THE CONDUCT OF THE PROCEEDING. THE MOVING PARTY
SHALL PROVIDE NOTICE OF THE DEPOSITION IN THE MANNER PROVIDED FOR IN
CIVIL ACTIONS AND SERVE A SUBPOENA UPON THE DEPONENT, SPECIFYING THE
TERMS AND CONDITIONS SET FORTH IN THE COURT'S ORDER GRANTING THE DEPOSI-
TION, AND GIVE REASONABLE NOTICE OF THE DEPOSITION IN WRITING TO EVERY
OTHER PARTY.
3. MANNER OF TAKING. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION OR
BY ORDER OF THE COURT, DEPOSITIONS SHALL BE TAKEN IN THE MANNER PROVIDED
IN CIVIL ACTIONS. WITH THE CONSENT OF THE PARTIES, THE COURT MAY ORDER
THAT A DEPOSITION BE TAKEN ON WRITTEN INTERROGATORIES IN THE MANNER
PROVIDED IN CIVIL ACTIONS. ANY STATEMENTS, WRITTEN OR RECORDED OR SUMMA-
RIZED IN ANY WRITING OR RECORDING, OF THE WITNESS BEING DEPOSED WHICH
ARE IN THE POSSESSION, CUSTODY OR CONTROL OF ANY PARTY SHALL BE MADE
AVAILABLE FOR EXAMINATION AND USE AT THE TAKING OF THE DEPOSITION TO ANY
PARTY. THE DEPOSITION SHALL BE RECORDED BY AN ELECTRONIC RECORDING,
WHICH MUST INCLUDE NOT ONLY AUDIO BUT ALSO VISUAL RECORDING, UNLESS THE
COURT ORDERS OTHERWISE, OR THE PARTIES STIPULATE THAT IT SHALL BE
RECORDED IN ANOTHER MANNER. IF A DEPOSITION IS RECORDED BY OTHER THAN A
CERTIFIED COURT REPORTER, THE PARTY TAKING THE DEPOSITION SHALL PROVIDE
EVERY OTHER PARTY WITH A COPY OF THE RECORDING WITHIN FIFTEEN CALENDAR
DAYS AFTER THE TAKING OF THE DEPOSITION OR NOT LESS THAN TEN CALENDAR
DAYS BEFORE TRIAL, WHICHEVER IS EARLIER. THE PARTIES MAY STIPULATE, OR
THE COURT MAY ORDER, THAT A DEPOSITION BE TAKEN BY TELEPHONE AND
RECORDED. ALL PARTIES AND COUNSEL SHALL HAVE A RIGHT TO BE PRESENT AT
THE DEPOSITION. A DEFENDANT SHALL NOT BE PHYSICALLY PRESENT AT A DEPOSI-
A. 4360 10
TION, EXCEPT ON STIPULATION OF THE PARTIES OR BY ORDER OF THE COURT
BASED UPON A SHOWING OF GOOD CAUSE.
§ 245.40 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
1. AVAILABILITY. AFTER THE FILING OF AN ACCUSATORY INSTRUMENT, AND
SUBJECT TO CONSTITUTIONAL LIMITATIONS, THE COURT MAY, UPON MOTION OF THE
PROSECUTION SHOWING PROBABLE CAUSE TO BELIEVE THE DEFENDANT HAS COMMIT-
TED THE CRIME, A CLEAR INDICATION THAT RELEVANT MATERIAL EVIDENCE WILL
BE FOUND, AND THAT THE METHOD USED TO SECURE IT IS SAFE AND RELIABLE,
REQUIRE A DEFENDANT TO PROVIDE NON-TESTIMONIAL EVIDENCE, INCLUDING TO:
(A) APPEAR IN A LINEUP;
(B) SPEAK FOR IDENTIFICATION BY A WITNESS OR POTENTIAL WITNESS;
(C) BE FINGERPRINTED;
(D) POSE FOR PHOTOGRAPHS NOT INVOLVING REENACTMENT OF AN EVENT;
(E) PERMIT THE TAKING OF SAMPLES OF THE DEFENDANT'S BLOOD, HAIR, AND
OTHER MATERIALS OF THE DEFENDANT'S BODY THAT INVOLVES NO UNREASONABLE
INTRUSION THEREOF;
(F) PROVIDE SPECIMENS OF THE DEFENDANT'S HANDWRITING; AND
(G) SUBMIT TO A REASONABLE PHYSICAL OR MEDICAL INSPECTION OF THE
DEFENDANT'S BODY.
2. LIMITATIONS. THIS SECTION SHALL NOT BE CONSTRUED TO ALTER OR IN ANY
WAY 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 NEW YORK CONSTITUTION
OR THE UNITED STATES CONSTITUTION. THIS SECTION SHALL NOT BE CONSTRUED
TO ALTER OR IN ANY WAY AFFECT THE ADMINISTRATION OF A CHEMICAL TEST
WHERE OTHERWISE AUTHORIZED. AN ORDER PURSUANT TO THIS SECTION MAY BE
DENIED, LIMITED OR CONDITIONED AS PROVIDED IN SECTION 245.70 OF THIS
ARTICLE.
§ 245.45 PRESERVATION OF EVIDENCE.
1. APPARENTLY MATERIAL WITNESS OR PHYSICAL EVIDENCE. (A) WHEN POLICE
OFFICERS OR OTHER LAW ENFORCEMENT PERSONNEL PARTICIPATE IN THE INVESTI-
GATION OF AN APPARENT CRIMINAL INCIDENT, AND PROVIDED THAT IT IS PRACTI-
CABLE UNDER THE CIRCUMSTANCES, THEY SHALL REQUEST AND MEMORIALIZE
CONTACT INFORMATION FOR AN APPARENTLY MATERIAL WITNESS OF WHOM THEY ARE
AWARE, AND THEY SHALL GATHER OR MEMORIALIZE APPARENTLY MATERIAL PHYSICAL
EVIDENCE OF WHICH THEY ARE AWARE, WHENEVER THE WITNESS OR PHYSICAL
EVIDENCE APPEARS TO BE OF SUCH A NATURE AND POTENTIAL SIGNIFICANCE THAT
AN ACCUSED MAY BE UNABLE TO OBTAIN OTHER EVIDENCE, POSSESSING A COMPARA-
BLE POTENTIAL TO MITIGATE OR NEGATE HIS OR HER GUILT WERE IT FOUND TO BE
EXCULPATORY, BY OTHER REASONABLY AVAILABLE MEANS UNLESS THESE ACTIONS
ARE TAKEN TO PRESERVE THE AVAILABILITY OF THE WITNESS OR THE PHYSICAL
EVIDENCE. THIS SUBDIVISION DOES NOT, HOWEVER, REQUIRE THAT POLICE OFFI-
CERS OR OTHER LAW ENFORCEMENT PERSONNEL TAKE AND PRESERVE A SECOND
SAMPLE OF THE DEFENDANT'S BREATH FOR LATER TESTING BY THE DEFENDANT IN
CASES ARISING UNDER THE VEHICLE AND TRAFFIC LAW.
(B) IF THE PROSECUTION IS UNABLE TO DISCLOSE SUCH MATERIAL TO THE
DEFENDANT PURSUANT TO PARAGRAPH (R) OF SUBDIVISION ONE OF SECTION 245.20
OF THIS ARTICLE DUE TO A FAILURE TO COMPLY WITH THIS OBLIGATION BY
POLICE OFFICERS OR BY OTHER LAW ENFORCEMENT PERSONNEL, THE COURT, UPON
MOTION OF THE DEFENDANT SHOWING THAT THE WITNESS OR EVIDENCE HAS BEEN
IRRETRIEVABLY LOST AND THAT THE DEFENDANT CANNOT OBTAIN OTHER EVIDENCE,
POSSESSING A COMPARABLE POTENTIAL TO MITIGATE OR NEGATE HIS OR HER GUILT
WERE IT FOUND TO BE EXCULPATORY, BY OTHER REASONABLY AVAILABLE MEANS,
SHALL IMPOSE AN APPROPRIATE REMEDY OR SANCTION PURSUANT TO SECTION
245.85 OF THIS ARTICLE.
A. 4360 11
2. VIDEOTAPE OF INTERVIEW AT POLICE STATION OR OTHER FACILITY OF
DETENTION. (A) NO ORAL, WRITTEN, OR SIGN LANGUAGE STATEMENT OF A SUSPECT
MADE DURING AN INTERVIEW AT A POLICE STATION OR OTHER FACILITY OF
DETENTION SHALL BE ADMISSIBLE AS SUBSTANTIVE EVIDENCE AGAINST THAT
PERSON IN ANY CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING, WHICH
MUST BE FOCUSED UPON BOTH THE QUESTIONER AND THE SUSPECT THROUGHOUT AND
MUST INCLUDE NOT ONLY AUDIO BUT ALSO VISUAL RECORDING, IS MADE OF THE
COMPLETE INTERVIEW. INTERVIEWING WITHIN THE MEANING OF THIS SUBDIVISION
DOES NOT INCLUDE ROUTINE PEDIGREE INQUIRY OR STATEMENTS MADE IN OPEN
COURT OR BEFORE A GRAND JURY. BRIEF PERIODS OF RECESS DURING WHICH ALL
INTERVIEWING CEASES DO NOT CONSTITUTE AN IMPERMISSIBLE INTERRUPTION OF
THE COMPLETE INTERVIEW, BUT THE STARTING TIME OF SUCH A RECESS AND THE
RESUMPTION TIME OF THE INTERVIEW SHALL BE MEMORIALIZED. THE INTERVIEWER
NEED NOT INFORM THE SUSPECT THAT AN ELECTRONIC RECORDING IS BEING MADE.
A SUSPECT'S REFUSAL TO PARTICIPATE IN AN INTERVIEW BECAUSE IT IS ELEC-
TRONICALLY RECORDED, IF THAT REFUSAL ITSELF IS ELECTRONICALLY RECORDED
AS PROVIDED HEREIN, SHALL RENDER THIS SUBDIVISION INAPPLICABLE TO ALL
STATEMENTS MADE AFTER THE REFUSAL IF THE COURT FINDS BEYOND A REASONABLE
DOUBT THAT IT WAS VOLUNTARY AND UNEQUIVOCAL. LAW ENFORCEMENT PERSONNEL
SHALL NOT EXPRESSLY OR IMPLICITLY ENCOURAGE THE SUSPECT TO GIVE SUCH
CONDITIONAL CONSENT TO AN INTERVIEW IN LIEU OF A COMPLETELY RECORDED
INTERVIEW.
(B) IF THE COURT FINDS, BY A PREPONDERANCE OF THE EVIDENCE, THAT THE
DEFENDANT WAS SUBJECTED TO EARLIER INTERVIEWING AT A POLICE STATION OR
OTHER FACILITY OF DETENTION IN VIOLATION OF THIS SUBDIVISION, THEN UPON
DEFENSE REQUEST WHEN STATEMENTS MADE IN COMPLIANCE WITH THIS SUBDIVISION
ARE ADMITTED AT TRIAL AS EVIDENCE AGAINST THE DEFENDANT, THE COURT SHALL
GIVE THE FOLLOWING INSTRUCTION TO THE JURY AT THE TIME OF THEIR ADMIS-
SION AND AGAIN IN ITS FINAL INSTRUCTIONS ON THE LAW: "NEW YORK STATE LAW
REQUIRES THAT ALL INTERVIEWS OF A SUSPECT AT A POLICE STATION OR OTHER
FACILITY OF DETENTION MUST BE RECORDED BY VIDEOTAPE OR OTHER VISUAL
RECORDING, BECAUSE THIS ENHANCES THE RELIABILITY OF THE PROCESS UNDER
WHICH THE STATEMENTS ARE OBTAINED AND ALLOWS THE JURY TO MORE FAIRLY
ASSESS THE STATEMENTS. A JUDGE HAS FOUND IN THIS CASE THAT EARLIER
INTERVIEWING OCCURRED AT THE POLICE STATION OR OTHER FACILITY OF
DETENTION THAT WAS NOT RECORDED. BECAUSE OF THIS FAILURE TO COMPLY WITH
THE RULE THAT ALL SUCH INTERVIEWS MUST BE RECORDED, THE STATEMENTS BY
THE DEFENDANT THAT YOU HAVE SEEN SHOULD BE WEIGHED WITH GREAT CAUTION
AND CARE."
(C) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBDIVISION, AN ORAL,
WRITTEN, OR SIGN LANGUAGE STATEMENT OF THE DEFENDANT MADE DURING AN
INTERVIEW AT A POLICE STATION OR OTHER FACILITY OF DETENTION IS ADMISSI-
BLE AS EVIDENCE AGAINST THE DEFENDANT IN A CRIMINAL PROCEEDING IN THIS
STATE IF THE STATEMENT WAS OBTAINED IN ANOTHER STATE IN COMPLIANCE WITH
THE LAWS OF THAT STATE, OR BY A FEDERAL LAW ENFORCEMENT OFFICER IN THIS
STATE OR ANOTHER STATE IN COMPLIANCE WITH THE LAWS OF THE UNITED STATES.
3. 911 TELEPHONE CALL AND POLICE RADIO TRANSMISSION ELECTRONIC
RECORDINGS. (A) WHENEVER AN ELECTRONIC RECORDING OF A 911 TELEPHONE CALL
OR A POLICE RADIO TRANSMISSION WAS MADE IN CONNECTION WITH THE INVESTI-
GATION OF AN APPARENT CRIMINAL INCIDENT, THE ARRESTING OFFICER OR LEAD
DETECTIVE SHALL EXPEDITIOUSLY NOTIFY THE PROSECUTION IN WRITING UPON THE
FILING OF AN ACCUSATORY INSTRUMENT OF THE EXISTENCE OF ALL SUCH KNOWN
RECORDINGS. THE PROSECUTION SHALL EXPEDITIOUSLY TAKE WHATEVER REASONABLE
STEPS ARE NECESSARY TO ENSURE THAT ALL KNOWN ELECTRONIC RECORDINGS OF
911 TELEPHONE CALLS AND POLICE RADIO TRANSMISSIONS MADE IN CONNECTION
WITH THE CASE ARE PRESERVED THROUGHOUT THE PENDENCY OF THE CASE. UPON
A. 4360 12
THE DEFENDANT'S TIMELY REQUEST AND DESIGNATION OF A SPECIFIC ELECTRONIC
RECORDING OF A 911 TELEPHONE CALL, THE PROSECUTION SHALL ALSO EXPE-
DITIOUSLY TAKE WHATEVER REASONABLE STEPS ARE NECESSARY TO ENSURE THAT IT
IS PRESERVED THROUGHOUT THE PENDENCY OF THE CASE.
(B) IF THE PROSECUTION FAILS TO DISCLOSE SUCH AN ELECTRONIC RECORDING
TO THE DEFENDANT PURSUANT TO PARAGRAPH (G) OF SUBDIVISION ONE OF SECTION
245.20 OF THIS ARTICLE DUE TO A FAILURE TO COMPLY WITH THIS OBLIGATION
BY POLICE OFFICERS OR OTHER LAW ENFORCEMENT OR PROSECUTION PERSONNEL,
THE COURT UPON MOTION OF THE DEFENDANT SHALL IMPOSE AN APPROPRIATE REME-
DY OR SANCTION PURSUANT TO SECTION 245.85 OF THE ARTICLE.
§ 245.50 CERTIFICATES OF COMPLIANCE.
1. BY THE PROSECUTION. WHEN THE PROSECUTION HAS PROVIDED ALL DISCOVERY
REQUIRED BY SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE OR BY
COURT ORDER, IT SHALL FILE WITH THE COURT AND SERVE UPON THE DEFENDANT A
CERTIFICATE OF COMPLIANCE. THE CERTIFICATE SHALL STATE THAT, TO THE BEST
OF THE PROSECUTOR'S KNOWLEDGE AND AFTER MAKING REASONABLE INQUIRIES AND
EXERCISING DUE DILIGENCE, HE OR SHE HAS DISCLOSED AND MADE AVAILABLE ALL
MATERIAL AND INFORMATION SUBJECT TO DISCOVERY, AND SHALL IDENTIFY EACH
ITEM PROVIDED. IN ADDITION, THE CERTIFICATE SHALL STATE THAT, TO THE
BEST OF THE PROSECUTOR'S KNOWLEDGE AND AFTER MAKING REASONABLE INQUIRIES
AND EXERCISING DUE DILIGENCE:
(A) HE OR SHE HAS COMPLIED WITH THESE OBLIGATIONS WITH RESPECT TO ALL
MATERIAL AND INFORMATION IN THE CUSTODY OR CONTROL OF ALL POLICE OFFI-
CERS AND OTHER PERSONS WHO HAVE PARTICIPATED IN INVESTIGATING OR EVALU-
ATING THE CASE; AND
(B) HE OR SHE HAS MADE REASONABLE INQUIRIES OF ALL POLICE OFFICERS AND
OTHER PERSONS WHO HAVE PARTICIPATED IN INVESTIGATING OR EVALUATING THE
CASE ABOUT THE EXISTENCE OF ANY EVIDENCE OR INFORMATION WITHIN PARAGRAPH
(J) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE, INCLUDING SUCH
EVIDENCE OR INFORMATION THAT WAS NOT REDUCED TO WRITING OR OTHERWISE
MEMORIALIZED OR PRESERVED AS EVIDENCE, AND HAS DISCLOSED ANY SUCH INFOR-
MATION TO THE DEFENDANT. IF ADDITIONAL DISCOVERY IS SUBSEQUENTLY
PROVIDED PURSUANT TO SECTION 245.60 OF THIS ARTICLE, A SUPPLEMENTAL
CERTIFICATE SHALL BE FILED WITH THE COURT AND SERVED UPON THE DEFENDANT
IDENTIFYING THE ADDITIONAL MATERIAL AND INFORMATION PROVIDED.
2. BY THE DEFENDANT. WHEN THE DEFENDANT HAS PROVIDED ALL DISCOVERY
REQUIRED BY SUBDIVISION THREE OF SECTION 245.20 OF THIS ARTICLE OR BY
COURT ORDER, COUNSEL FOR THE DEFENDANT SHALL FILE WITH THE COURT AND
SERVE UPON THE PROSECUTION A CERTIFICATE OF COMPLIANCE. THE CERTIFICATE
SHALL STATE THAT, TO THE BEST OF COUNSEL FOR THE DEFENDANT'S KNOWLEDGE
AND AFTER MAKING REASONABLE INQUIRIES AND EXERCISING DUE DILIGENCE, HE
OR SHE HAS DISCLOSED AND MADE AVAILABLE ALL MATERIAL AND INFORMATION
SUBJECT TO DISCOVERY, AND SHALL IDENTIFY EACH ITEM PROVIDED. IF ADDI-
TIONAL DISCOVERY IS SUBSEQUENTLY PROVIDED PURSUANT TO SECTION 245.60 OF
THIS ARTICLE, A SUPPLEMENTAL CERTIFICATE SHALL BE FILED WITH THE COURT
AND SERVED UPON THE PROSECUTION IDENTIFYING THE ADDITIONAL MATERIAL AND
INFORMATION PROVIDED.
§ 245.55 FLOW OF INFORMATION.
1. SUFFICIENT COMMUNICATION FOR COMPLIANCE. THE PROSECUTOR SHALL
ENSURE THAT A FLOW OF INFORMATION IS MAINTAINED BETWEEN THE POLICE AND
OTHER INVESTIGATIVE PERSONNEL AND HIS OR HER OFFICE SUFFICIENT TO PLACE
WITHIN HIS OR HER POSSESSION OR CONTROL ALL MATERIAL AND INFORMATION
PERTINENT TO THE DEFENDANT AND THE OFFENSE OR OFFENSES CHARGED, INCLUD-
ING ANY EVIDENCE OR INFORMATION WHICH TENDS TO NEGATE THE DEFENDANT'S
GUILT OR TO MITIGATE THE DEFENDANT'S CULPABILITY AS TO A CHARGED
OFFENSE, OR WHICH TENDS TO SUPPORT A POTENTIAL DEFENSE THERETO, OR WHICH
A. 4360 13
TENDS TO PROVIDE A BASIS FOR A MOTION TO SUPPRESS EVIDENCE ON CONSTITU-
TIONAL GROUNDS, OR WHICH WOULD TEND TO REDUCE THE PUNISHMENT OF THE
DEFENDANT.
2. PROVISION OF LAW ENFORCEMENT AGENCY FILES. UPON REQUEST BY THE
PROSECUTION, A NEW YORK STATE LAW ENFORCEMENT AGENCY SHALL MAKE AVAIL-
ABLE TO THE PROSECUTION A COMPLETE COPY OF ITS COMPLETE FILES RELATED TO
THE INVESTIGATION OF THE CASE OR THE PROSECUTION OF THE DEFENDANT FOR
COMPLIANCE WITH THIS ARTICLE.
§ 245.60 CONTINUING DUTY TO DISCLOSE.
IF EITHER THE PROSECUTION OR THE DEFENDANT SUBSEQUENTLY LEARNS OF
ADDITIONAL MATERIAL OR INFORMATION WHICH IT WOULD HAVE BEEN UNDER A DUTY
TO DISCLOSE PURSUANT TO ANY PROVISIONS OF THIS ARTICLE AT THE TIME OF A
PREVIOUS DISCOVERY OBLIGATION OR DISCOVERY ORDER, IT SHALL EXPEDITIOUSLY
NOTIFY THE OTHER PARTY AND DISCLOSE THE ADDITIONAL MATERIAL OR INFORMA-
TION AS REQUIRED FOR INITIAL DISCOVERY UNDER THIS ARTICLE. THIS
PROVISION ALSO REQUIRES EXPEDITIOUS DISCLOSURE BY THE PROSECUTION OF
MATERIAL OR INFORMATION THAT BECAME RELEVANT TO THE CASE OR DISCOVERABLE
BASED UPON RECIPROCAL DISCOVERY RECEIVED FROM THE DEFENDANT PURSUANT TO
SUBDIVISION THREE OF SECTION 245.20 OF THIS ARTICLE.
§ 245.65 WORK PRODUCT.
THIS ARTICLE DOES NOT AUTHORIZE DISCOVERY BY A PARTY OF THOSE PORTIONS
OF RECORDS, REPORTS, CORRESPONDENCE, MEMORANDA, OR INTERNAL DOCUMENTS OF
THE ADVERSE PARTY WHICH ARE ONLY THE LEGAL RESEARCH, OPINIONS, THEORIES
OR CONCLUSIONS OF THE ADVERSE PARTY OR ITS ATTORNEY OR THE ATTORNEY'S
AGENTS, OR OF STATEMENTS OF A DEFENDANT, WRITTEN OR RECORDED OR SUMMA-
RIZED IN ANY WRITING OR RECORDING, MADE TO THE ATTORNEY FOR THE DEFEND-
ANT OR THE ATTORNEY'S AGENTS.
§ 245.70 PROTECTIVE ORDERS.
UPON A SHOWING OF GOOD CAUSE, THE COURT MAY AT ANY TIME ORDER THAT
DISCOVERY, DISCLOSURE OR INSPECTION BE DENIED, RESTRICTED, CONDITIONED
OR DEFERRED, OR MAKE SUCH OTHER ORDER AS IS APPROPRIATE. THE COURT MAY,
FOR GOOD CAUSE SHOWN, GRANT DISCOVERY OR DISCLOSURE TO A DEFENDANT ON
THE CONDITION THAT THE MATERIAL OR INFORMATION TO BE DISCOVERED OR
DISCLOSED BE AVAILABLE ONLY TO COUNSEL FOR THE DEFENDANT. THIS PROVISION
DOES NOT ALTER THE ALLOCATION OF THE BURDEN OF PROOF WITH REGARD TO THE
MATTER AT ISSUE, INCLUDING PRIVILEGE. THE COURT MAY PERMIT A PARTY SEEK-
ING OR OPPOSING A PROTECTIVE ORDER UNDER THIS SECTION, OR ANOTHER
AFFECTED PERSON, TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN CAMERA. ANY
SUCH PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY SHALL BE SEALED AND SHALL
CONSTITUTE A PART OF THE RECORD ON APPEAL.
§ 245.75 AMENDMENT OF DISCOVERY ORDERS.
UPON MOTION OF EITHER PARTY MADE SUBSEQUENT TO AN ORDER OF THE COURT
ISSUED PURSUANT TO THIS ARTICLE, THE COURT MAY ALTER OR AMEND THE PREVI-
OUS ORDER OR ORDERS AS THE INTERESTS OF JUSTICE MAY REQUIRE. THE COURT
MAY, FOR GOOD CAUSE SHOWN, AFFIRM A PRIOR ORDER ISSUED OR IMPOSED PURSU-
ANT TO THIS ARTICLE GRANTING DISCOVERY TO A DEFENDANT UPON THE ADDI-
TIONAL CONDITION THAT THE MATERIAL OR INFORMATION TO BE DISCOVERED OR
DISCLOSED BE AVAILABLE ONLY TO COUNSEL FOR THE DEFENDANT. THE COURT MAY
ALTER THE TIMES FOR COMPLIANCE WITH ANY DISCOVERY ORDER ISSUED OR
IMPOSED PURSUANT TO THIS ARTICLE UPON A SHOWING OF GOOD CAUSE.
§ 245.80 WAIVER OF DISCOVERY BY DEFENDANT.
A DEFENDANT WHO DOES NOT SEEK DISCOVERY FROM THE PROSECUTION UNDER
THIS ARTICLE SHALL SO NOTIFY THE PROSECUTION AND THE COURT AT THE
DEFENDANT'S ARRAIGNMENT ON AN INDICTMENT, SUPERIOR COURT INFORMATION,
PROSECUTOR'S INFORMATION, INFORMATION, OR SIMPLIFIED INFORMATION CHARG-
ING A MISDEMEANOR, OR EXPEDITIOUSLY THEREAFTER BUT BEFORE RECEIVING
A. 4360 14
DISCOVERY FROM THE PROSECUTION PURSUANT TO SUBDIVISION ONE OF SECTION
245.20 OF THIS ARTICLE, AND THE DEFENDANT NEED NOT PROVIDE DISCOVERY TO
THE PROSECUTION PURSUANT TO SUBDIVISION THREE OF SECTION 245.20 AND
SECTION 245.60 OF THIS ARTICLE. A WAIVER SHALL BE IN WRITING AND SIGNED
BY THE DEFENDANT OR COUNSEL FOR THE DEFENDANT. SUCH A WAIVER DOES NOT
ALTER OR IN ANY WAY AFFECT THE PROCEDURES, OBLIGATIONS OR RIGHTS SET
FORTH IN SECTIONS 250.10, 250.20 AND 250.30 OF THIS TITLE, OR OTHERWISE
ESTABLISHED OR REQUIRED BY LAW.
§ 245.85 REMEDIES OR SANCTIONS FOR NONCOMPLIANCE.
1. AVAILABLE REMEDIES OR SANCTIONS. FOR FAILURE TO COMPLY WITH ANY
DISCOVERY ORDER ISSUED OR IMPOSED PURSUANT TO THIS ARTICLE, THE COURT
MAY MAKE A FURTHER ORDER FOR DISCOVERY, GRANT A CONTINUANCE, ORDER THAT
A HEARING BE REOPENED, ORDER THAT A WITNESS BE CALLED OR RECALLED,
INSTRUCT THE JURY THAT IT MAY DRAW AN ADVERSE INFERENCE REGARDING THE
NONCOMPLIANCE, PRECLUDE OR STRIKE A WITNESS'S TESTIMONY OR A PORTION OF
A WITNESS'S TESTIMONY, ADMIT OR EXCLUDE EVIDENCE, ORDER A MISTRIAL,
ORDER THE DISMISSAL OF ALL OR SOME OF THE CHARGES, OR MAKE SUCH OTHER
ORDER AS IT DEEMS JUST UNDER THE CIRCUMSTANCES; EXCEPT THAT ANY SANCTION
AGAINST THE DEFENDANT SHALL COMPORT WITH THE DEFENDANT'S CONSTITUTIONAL
RIGHT TO PRESENT A DEFENSE, AND THE SANCTION OF PRECLUDING A DEFENSE
WITNESS FROM TESTIFYING SHALL BE PERMISSIBLE ONLY UPON A FINDING THAT
THE DEFENDANT'S FAILURE TO COMPLY WITH THE DISCOVERY ORDER WAS WILLFUL
AND MOTIVATED BY A DESIRE TO OBTAIN A TACTICAL ADVANTAGE.
2. NEED FOR REMEDY OR SANCTION. (A) WHEN MATERIAL OR INFORMATION IS
DISCOVERABLE UNDER THIS ARTICLE, BUT IT CANNOT BE DISCLOSED BECAUSE IT
HAS BEEN LOST OR DESTROYED, THE COURT SHALL IMPOSE AN APPROPRIATE REMEDY
OR SANCTION WHENEVER THE PARTY ENTITLED TO DISCLOSURE SHOWS THAT THE
LOST OR DESTROYED MATERIAL MAY HAVE CONTAINED SOME INFORMATION RELEVANT
TO A CONTESTED ISSUE. THE APPROPRIATE REMEDY OR SANCTION IS THAT WHICH
IS PROPORTIONATE TO THE POTENTIAL WAYS IN WHICH THE LOST OR DESTROYED
MATERIAL REASONABLY COULD HAVE BEEN HELPFUL TO THE PARTY ENTITLED TO
DISCLOSURE.
(B) WHEN MATERIAL OR INFORMATION IS DISCOVERABLE UNDER THIS ARTICLE,
BUT IT IS DISCLOSED BELATEDLY, THE COURT SHALL IMPOSE AN APPROPRIATE
REMEDY OR SANCTION WHENEVER THE PARTY ENTITLED TO DISCLOSURE SHOWS THAT
IT WAS SIGNIFICANTLY PREJUDICED.
3. SANCTION FOR NONDISCLOSURE OF STATEMENT OF TESTIFYING PROSECUTION
WITNESS. THE FAILURE OF THE PROSECUTOR OR ANY AGENT OF THE PROSECUTOR TO
DISCLOSE ANY WRITTEN OR RECORDED STATEMENT MADE BY A PROSECUTION WITNESS
WHICH RELATES TO THE SUBJECT MATTER OF THE WITNESS'S TESTIMONY 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-DISCLOSURE 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 REOPENED PRE-TRIAL HEARING WHEN SUCH STATEMENTS WERE
DISCLOSED BEFORE THE CLOSE OF EVIDENCE AT TRIAL.
§ 245.90 ADMISSIBILITY OF DISCOVERY.
THE FACT THAT A PARTY HAS INDICATED DURING THE DISCOVERY PROCESS AN
INTENTION TO OFFER SPECIFIED EVIDENCE OR TO CALL A SPECIFIED WITNESS IS
NOT ADMISSIBLE IN EVIDENCE OR GROUNDS FOR ADVERSE COMMENT AT A HEARING
OR A TRIAL.
§ 3. Section 65.20 of the criminal procedure law, as added by chapter
505 of the laws of 1985, subdivision 2 as added, the opening paragraph
of subdivision 10 as amended and subdivisions 3, 4, 5, 6, 7, 8, 9, 10,
A. 4360 15
11, 12 and 13 as renumbered by chapter 548 of the laws of 2007, subdivi-
sion 7 and paragraph (k) of subdivision 10 as amended by chapter 320 of
the laws of 2006 and subdivisions 11 and 12 as amended by chapter 455 of
the laws of 1991, is amended to read as follows:
§ 65.20 Closed-circuit television; procedure for application and grounds
for determination.
1. Prior to the commencement of a criminal proceeding; other than a
grand jury proceeding, either party may apply to the court for an order
declaring that a child witness is vulnerable.
2. A child witness should be declared vulnerable when the court, in
accordance with the provisions of this section, determines by clear and
convincing evidence that the child witness would suffer serious mental
or emotional harm that would substantially impair the child witness'
ability to communicate with the finder of fact without the use of live,
two-way closed-circuit television.
3. A motion pursuant to subdivision one of this section must be made
in writing at least eight days before the commencement of trial or other
criminal proceeding upon reasonable notice to the other party and with
an opportunity to be heard.
4. The motion papers must state the basis for the motion and must
contain sworn allegations of fact which, if true, would support a deter-
mination by the court that the child witness is vulnerable. Such allega-
tions may be based upon the personal knowledge of the deponent or upon
information and belief, provided that, in the latter event, the sources
of such information and the grounds for such belief are stated.
5. The answering papers may admit or deny any of the alleged facts and
may, in addition, contain sworn allegations of fact relevant to the
motion, including the rights of the defendant, the need to protect the
child witness and the integrity of the truth-finding function of the
trier of fact.
6. Unless all material facts alleged in support of the motion made
pursuant to subdivision one of this section are conceded, the court
shall, in addition to examining the papers and hearing oral argument,
conduct an appropriate hearing for the purpose of making findings of
fact essential to the determination of the motion. Except as provided in
subdivision [six] SEVEN of this section, it may subpoena or call and
examine witnesses, who must either testify under oath or be permitted to
give unsworn testimony pursuant to subdivision two of section 60.20 and
must authorize the attorneys for the parties to do the same.
7. Notwithstanding any other provision of law, the child witness who
is alleged to be vulnerable may not be compelled to testify at such
hearing or to submit to any psychological or psychiatric examination.
The failure of the child witness to testify at such hearing shall not be
a ground for denying a motion made pursuant to subdivision one of this
section. Prior statements made by the child witness relating to any
allegations of conduct constituting an offense defined in article one
hundred thirty of the penal law or incest as defined in section 255.25,
255.26 or 255.27 of such law or to any allegation of words or conduct
constituting an attempt to prevent, impede or deter the child witness
from cooperating in the investigation or prosecution of the offense
shall be admissible at such hearing, provided, however, that a declara-
tion that a child witness is vulnerable may not be based solely upon
such prior statements.
8. (a) Notwithstanding any of the provisions of article forty-five of
the civil practice law and rules, any physician, psychologist, nurse or
social worker who has treated a child witness may testify at a hearing
A. 4360 16
conducted pursuant to subdivision five of this section concerning the
treatment of such child witness as such treatment relates to the issue
presented at the hearing, provided that any otherwise applicable statu-
tory privileges concerning communications between the child witness and
such physician, psychologist, nurse or social worker in connection with
such treatment shall not be deemed waived by such testimony alone,
except to the limited extent of permitting the court alone to examine in
camera reports, records or documents, if any, prepared by such physi-
cian, psychologist, nurse or social worker. If upon such examination the
court determines that such reports, records or documents, or any one or
portion thereof, contain information material and relevant to the issue
of whether the child witness is a vulnerable child witness, the court
shall disclose such information to both the attorney for the defendant
and the district attorney.
(b) At any time after a motion has been made pursuant to subdivision
one of this section, upon the demand of the other party the moving party
must furnish the demanding party with a copy of any and all of such
records, reports or other documents in the possession of such other
party and must, in addition, supply the court with a copy of all such
reports, records or other documents which are the subject of the demand.
At any time after a demand has been made pursuant to this paragraph, the
moving party may demand that property of the same kind or character in
possession of the party that originally made such demand be furnished to
the moving party and, if so furnished, be supplied, in addition, to the
court.
9. (a) Prior to the commencement of the hearing conducted pursuant to
subdivision [five] SIX of this section, the district attorney shall,
subject to a protective order, comply with the provisions of PARAGRAPH
(C) OF subdivision one of section [240.45] 245.20 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] THREE of section [240.45] 245.20 of this chapter as
they concern all the witnesses the defendant intends to call at such
hearing.
10. The court may consider, in determining whether there are factors
which would cause the child witness to suffer serious mental or
emotional harm, a finding that any one or more of the following circum-
stances have been established by clear and convincing evidence:
(a) The manner of the commission of the offense of which the defendant
is accused was particularly heinous or was characterized by aggravating
circumstances.
(b) The child witness is particularly young or otherwise particularly
subject to psychological harm on account of a physical or mental condi-
tion which existed before the alleged commission of the offense.
(c) At the time of the alleged offense, the defendant occupied a posi-
tion of authority with respect to the child witness.
(d) The offense or offenses charged were part of an ongoing course of
conduct committed by the defendant against the child witness over an
extended period of time.
(e) A deadly weapon or dangerous instrument was allegedly used during
the commission of the crime.
(f) The defendant has inflicted serious physical injury upon the child
witness.
A. 4360 17
(g) A threat, express or implied, of physical violence to the child
witness or a third person if the child witness were to report the inci-
dent to any person or communicate information to or cooperate with a
court, grand jury, prosecutor, police officer or peace officer concern-
ing the incident has been made by or on behalf of the defendant.
(h) A threat, express or implied, of the incarceration of a parent or
guardian of the child witness, the removal of the child witness from the
family or the dissolution of the family of the child witness if the
child witness were to report the incident to any person or communicate
information to or cooperate with a court, grand jury, prosecutor, police
officer or peace officer concerning the incident has been made by or on
behalf of the defendant.
(i) A witness other than the child witness has received a threat of
physical violence directed at such witness or to a third person by or on
behalf of the defendant.
(j) The defendant, at the time of the inquiry, (i) is living in the
same household with the child witness, (ii) has ready access to the
child witness or (iii) is providing substantial financial support for
the child witness.
(k) The child witness has previously been the victim of an offense
defined in article one hundred thirty of the penal law or incest as
defined in section 255.25, 255.26 or 255.27 of such law.
(l) According to expert testimony, the child witness would be partic-
ularly [suceptible] SUSCEPTIBLE to psychological harm if required to
testify in open court or in the physical presence of the defendant.
11. Irrespective of whether a motion was made pursuant to subdivision
one of this section, the court, at the request of either party or on its
own motion, may decide that a child witness may be vulnerable based on
its own observations that a child witness who has been called to testify
at a criminal proceeding is suffering severe mental or emotional harm
and therefore is physically or mentally unable to testify or to continue
to testify in open court or in the physical presence of the defendant
and that the use of live, two-way closed-circuit television is necessary
to enable the child witness to testify. If the court so decides, it must
conduct the same hearing that subdivision [five] SIX of this section
requires when a motion is made pursuant to subdivision one of this
section, and it must make findings of fact pursuant to subdivisions
[nine] TEN and [eleven] TWELVE of this section, before determining that
the child witness is vulnerable.
12. In deciding whether a child witness is vulnerable, the court shall
make findings of fact which reflect the causal relationship between the
existence of any one or more of the factors set forth in subdivision
[nine] TEN of this section or other relevant factors which the court
finds are established and the determination that the child witness is
vulnerable. If the court is satisfied that the child witness is vulner-
able and that, under the facts and circumstances of the particular case,
the defendant's constitutional rights to an impartial jury or of
confrontation will not be impaired, it may enter an order granting the
application for the use of live, two-way closed-circuit television.
13. When the court has determined that a child witness is a vulnerable
child witness, it shall make a specific finding as to whether placing
the defendant and the child witness in the same room during the testimo-
ny of the child witness will contribute to the likelihood that the child
witness will suffer severe mental or emotional harm. If the court finds
that placing the defendant and the child witness in the same room during
the testimony of the child witness will contribute to the likelihood
A. 4360 18
that the child witness will suffer severe mental or emotional harm, the
order entered pursuant to subdivision [eleven] TWELVE of this section
shall direct that the defendant remain in the courtroom during the
testimony of the vulnerable child witness.
§ 4. Subdivision 5 of section 200.95 of the criminal procedure law, as
added by chapter 558 of the laws of 1982, is amended to read as follows:
5. Court ordered bill of particulars. Where a prosecutor has timely
served a written refusal pursuant to subdivision four of this section
and upon motion, made in writing, of a defendant, who has made a request
for a bill of particulars and whose request has not been complied with
in whole or in part, the court must, to the extent a protective order is
not warranted, order the prosecutor to comply with the request if it is
satisfied that the items of factual information requested are authorized
to be included in a bill of particulars, and that such information is
necessary to enable the defendant adequately to prepare or conduct his
defense and, if the request was untimely, a finding of good cause for
the delay. Where a prosecutor has not timely served a written refusal
pursuant to subdivision four of this section the court must, unless it
is satisfied that the people have shown good cause why such an order
should not be issued, issue an order requiring the prosecutor to comply
or providing for any other order authorized by [subdivision one of
section 240.70] SECTIONS 245.75 AND/OR 245.85 OF THIS PART.
§ 5. Paragraph (c) of subdivision 1 of section 255.10 of the criminal
procedure law, as added by chapter 763 of the laws of 1974, is amended
to read as follows:
(c) granting discovery pursuant to article [240] 245; or
§ 6. Section 340.30 of the criminal procedure law is amended to read
as follows:
§ 340.30 Pre-trial discovery and notices of defenses.
The provisions of article two hundred [forty] FORTY-FIVE, concerning
pre-trial discovery by a defendant under indictment in a superior court,
and article two hundred fifty, concerning pre-trial notice to the people
by a defendant under indictment in a superior court who intends to
advance a trial defense of mental disease or defect or of alibi, apply
to a prosecution of an information in a local criminal court.
§ 7. Subdivision 14 of section 400.27 of the criminal procedure law,
as added by chapter 1 of the laws of 1995, is amended to read as
follows:
14. (a) At a reasonable time prior to the sentencing proceeding or a
mental retardation hearing:
[(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 of section [240.45] 245.20 OF
THIS PART 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 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] 245.20 OF THIS PART.
(b) Where a party refuses to make disclosure pursuant to this section,
the provisions of [section 240.35, subdivision one of section 240.40 and
section 240.50] 245.70, 245.75 AND/OR 245.85 OF THIS PART shall apply.
A. 4360 19
(c) If, after complying with the provisions of this section or an
order pursuant thereto, a party finds either before or during a sentenc-
ing proceeding or mental retardation hearing, additional material
subject to discovery or covered by court order, the party shall promptly
make disclosure or apply for a protective order.
(d) If the court finds that a party has failed to comply with any of
the provisions of this section, the court may [enter] EMPLOY any of the
[orders] REMEDIES OR SANCTIONS specified in subdivision one of section
[240.70] 245.85 OF THIS PART.
§ 8. Section 440.30 of the criminal procedure law is amended by adding
a new subdivision 1-b to read as follows:
1-B. IN RESPONSE TO A MOTION UNDER THIS SECTION, THE COURT MAY ORDER
THE DIVISION OF CRIMINAL JUSTICE SERVICES TO COMPARE A FINGERPRINT
OBTAINED IN CONNECTION WITH THE INVESTIGATION OR PROSECUTION OF THE
DEFENDANT AGAINST THE STATEWIDE AUTOMATED FINGERPRINT IDENTIFICATION
SYSTEM, OR ITS SUCCESSOR SYSTEM, AND THE NATIONAL INTEGRATED AUTOMATED
FINGERPRINT IDENTIFICATION SYSTEM, OR ITS SUCCESSOR SYSTEM, UPON THE
COURT'S DETERMINATION THAT (A) SUCH FINGERPRINT COMPLIES WITH FEDERAL
BUREAU OF INVESTIGATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE
AND AS SUCH REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING
SUCH A COMPARISON AND (B) IF SUCH COMPARISON HAD BEEN CONDUCTED, AND IF
THE RESULTS HAD BEEN ADMITTED IN THE TRIAL RESULTING IN THE JUDGMENT, A
REASONABLE PROBABILITY EXISTS THAT THE VERDICT WOULD HAVE BEEN MORE
FAVORABLE TO THE DEFENDANT, OR IN A CASE INVOLVING A PLEA OF GUILTY, IF
THE RESULTS HAD BEEN AVAILABLE TO THE DEFENDANT PRIOR TO THE PLEA, A
REASONABLE PROBABILITY EXISTS THAT THE CONVICTION WOULD NOT HAVE
RESULTED.
§ 9. Section 460.80 of the penal law, as added by chapter 516 of the
laws of 1986, is amended to read as follows:
§ 460.80 Court ordered disclosure.
Notwithstanding the provisions of article two hundred [forty] FORTY-
FIVE of the criminal procedure law, when forfeiture is sought pursuant
to section 460.30 of this [chapter] ARTICLE, the court may order discov-
ery of any property not otherwise disclosed which is material and
reasonably necessary for preparation by the defendant with respect to
the forfeiture proceeding pursuant to such section. The court may issue
a protective order denying, limiting, conditioning, delaying or regulat-
ing such discovery where a danger to the integrity of physical evidence
or a substantial risk of physical harm, intimidation, economic reprisal,
bribery or unjustified annoyance or embarrassment to any person or an
adverse effect upon the legitimate needs of law enforcement, including
the protection of the confidentiality of informants, or any other factor
or set of factors outweighs the usefulness of the discovery.
§ 10. Subdivision 5 of section 480.10 of the penal law, as added by
chapter 655 of the laws of 1990, is amended to read as follows:
5. In addition to information required to be disclosed pursuant to
article two hundred [forty] FORTY-FIVE of the criminal procedure law,
when forfeiture is sought pursuant to this article, and following the
defendant's arraignment on the special forfeiture information, the court
shall order discovery of any information not otherwise disclosed which
is material and reasonably necessary for preparation by the defendant
with respect to a forfeiture proceeding brought pursuant to this arti-
cle. Such material shall include those portions of the grand jury
minutes and such other information which pertain solely to the special
forfeiture information and shall not include information which pertains
to the criminal charges. Upon application of the prosecutor, the court
A. 4360 20
may issue a protective order pursuant to section [240.40] 245.70 of the
criminal procedure law with respect to any information required to be
disclosed pursuant to this subdivision.
§ 11. This act shall take effect on the ninetieth day after it shall
have become a law; provided, however, the amendments to section 65.20 of
the criminal procedure law made by section three of this act shall not
affect the repeal of such section and shall be deemed repealed there-
with.