S T A T E O F N E W Y O R K
________________________________________________________________________
6077
2017-2018 Regular Sessions
I N A S S E M B L Y
February 23, 2017
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Introduced by M. of A. TITONE, GOTTFRIED, STECK, MONTESANO -- Multi-
Sponsored by -- M. of A. COOK, PEOPLES-STOKES, PERRY -- read once and
referred to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to mandating
prosecutorial disclosure of exculpatory evidence
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:
§ 240.25 DISCOVERY; PROSECUTION'S DUTY TO DISCLOSE EXCULPATORY EVIDENCE.
1. IN ADDITION TO THE REQUIREMENTS OF SECTION 240.20 OF THIS ARTICLE,
THE PROSECUTION SHALL DISCLOSE TO THE DEFENDANT AND MAKE AVAILABLE FOR
INSPECTION, PHOTOGRAPHIC, COPYING OR TESTING, THE FOLLOWING PROPERTY
WITHIN TWENTY DAYS AFTER RECEIPT OF A WRITTEN DEMAND MADE BY THE DEFEND-
ANT:
(A) ANY AND ALL EXCULPATORY MATERIALS THEN IN THE POSSESSION OF THE
PROSECUTION OR ANY BRANCH OF LAW ENFORCEMENT INVOLVED IN THE PROSECUTION
OF THE DEFENDANT, OR EXCULPATORY MATERIALS WHICH MAY COME INTO THE
POSSESSION OF THE PROSECUTION OR ANY BRANCH OF LAW ENFORCEMENT INVOLVED
IN THE PROSECUTION OF THE DEFENDANT THROUGH THE EXERCISE OF DUE DILI-
GENCE PURSUANT TO SECTION 240.60 OF THIS ARTICLE;
(B) EVIDENCE WHICH DISPROVES THE IDENTITY OF THE DEFENDANT AS THE
PERPETRATOR OF THE CRIME AT ISSUE IN THE CRIMINAL ACTION OR PROCEEDING
PENDING AGAINST THE DEFENDANT;
(C) EVIDENCE WHICH TENDS TO DISPROVE AN ELEMENT OF ANY CRIME CHARGED
IN SUCH ACTION OR PROCEEDING;
(D) EVIDENCE WHICH CONSTITUTES A PRIOR REPRESENTATION OF A WITNESS
ACCOUNT WHICH VARIES IN ANY DEGREE FROM ANY STATEMENTS OF THE WITNESS,
WHENEVER MADE, WITH REGARD TO A DESCRIPTION OF THE EVENTS SURROUNDING
THE CRIME AT ISSUE IN SUCH ACTION OR PROCEEDING;
(E) EVIDENCE THAT A WITNESS HAS A PRIOR CRIMINAL HISTORY;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09195-01-7
A. 6077 2
(F) EVIDENCE THAT A WITNESS HAS ENGAGED IN ACTS WHICH WOULD BEAR UPON
HIS OR HER CREDIBILITY AND THE INTEGRITY OF HIS OR HER TESTIMONY; OR
(G) EVIDENCE WHICH WOULD CAUSE A REASONABLE PERSON TO QUESTION THE
VERACITY OF A WITNESS, SUCH AS MOTIVE, BIAS, COMPENSATION, OR INFORMA-
TION WHICH WOULD TEND TO DEVALUE THE TESTIMONY OFFERED.
2. THE PROSECUTOR SHALL MAKE A DILIGENT, GOOD FAITH EFFORT TO ASCER-
TAIN THE EXISTENCE OF DEMANDED PROPERTY 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 PROSECU-
TOR SHALL NOT BE REQUIRED TO OBTAIN BY SUBPOENA DUCES TECUM DEMANDED
MATERIAL WHICH THE DEFENDANT MAY THEREBY OBTAIN.
3. THE PROSECUTION MAY REQUEST AN IN CAMERA REVIEW OF ANY EVIDENCE
DEMANDED BY THE DEFENDANT PURSUANT TO SUBDIVISION ONE OF THIS SECTION.
AFTER AN IN CAMERA REVIEW OF THE MATERIALS PROVIDED AND AFTER AFFORDING
ALL PARTIES A REASONABLE OPPORTUNITY TO BE HEARD, THE COURT SHALL
PROMPTLY MAKE A WRITTEN DETERMINATION WHETHER THE REQUESTED REVIEW OF
THE INFORMATION CAN REASONABLY BE EXPECTED TO CAUSE SUBSTANTIAL AND
IDENTIFIABLE HARM TO OTHERS WHICH OUTWEIGHS THE DEFENDANT'S RIGHT OF
ACCESS TO THE INFORMATION OR WHETHER THE REQUESTED REVIEW WOULD HAVE A
DETRIMENTAL EFFECT ON THE ACTION OR PROCEEDING, OR WHETHER ALL OR PART
OF THE MATERIALS SOUGHT TO BE REVIEWED CONSTITUTE PERSONAL NOTES AND
OBSERVATIONS, AND SHALL ACCORDINGLY DETERMINE WHETHER ACCESS TO ALL OR
PART OF SUCH MATERIALS BY THE DEFENDANT SHALL BE GRANTED. IN THE EVENT
THAT THE COURT DETERMINES THAT THE REQUEST FOR ACCESS SHALL BE GRANTED
TO THE DEFENDANT IN WHOLE OR IN PART, THE COURT SHALL NOTIFY ALL PARTIES
AND THE COURT SHALL GRANT ACCESS TO THE DEFENDANT PURSUANT TO SUCH
DETERMINATION.
4. IF THE COURT FINDS THAT THE PROSECUTION HAS FAILED TO COMPLY WITH
ANY OF THE PROVISIONS OF THIS SECTION, THE COURT MAY ORDER THE PROSE-
CUTION TO PERMIT DISCOVERY OF THE PROPERTY NOT PREVIOUSLY DISCLOSED,
GRANT A CONTINUANCE, ISSUE A PROTECTIVE ORDER, PROHIBIT THE INTRODUCTION
OF CERTAIN EVIDENCE OR THE CALLING OF CERTAIN WITNESSES OR TAKE ANY
OTHER APPROPRIATE ACTION.
5. IF THE COURT FINDS THAT THE PROSECUTION HAS WILLFULLY FAILED TO
COMPLY WITH ANY OF THE PROVISIONS OF THIS SECTION THE COURT MAY:
(A) DISMISS THE CRIMINAL ACTION OR PROCEEDING OR, IF DISMISSAL IS NOT
SUPPORTED BY THE RECORD, INSTRUCT THE JURY THAT AN ADVERSE INFERENCE MAY
BE DRAWN AGAINST THE PROSECUTION FOR THEIR FAILURE TO PROVIDE THE
REQUESTED DISCLOSURE;
(B) FINE THE INDIVIDUAL PROSECUTOR AND THE DISTRICT ATTORNEY'S OFFICE
JOINTLY AND SEVERALLY THE AMOUNT OF TWO THOUSAND FIVE HUNDRED DOLLARS
FOR EACH WILLFUL VIOLATION OF SUBDIVISION ONE OF THIS SECTION; OR
(C) WHERE AN INDIVIDUAL PROSECUTOR OR DISTRICT ATTORNEY'S OFFICE HAS
BEEN PREVIOUSLY FINED FOR VIOLATING THIS SECTION, FINE THE INDIVIDUAL
PROSECUTOR AND THE DISTRICT ATTORNEY'S OFFICE JOINTLY AND SEVERALLY THE
AMOUNT OF FIVE THOUSAND DOLLARS FOR EACH WILLFUL VIOLATION OF SUBDIVI-
SION ONE OF THIS SECTION.
§ 2. This act shall take effect immediately.