LBD03867-03-7
S. 6847 2
1. ANY DISCOVERY SUBJECT TO PROTECTIVE ORDER. UPON A SHOWING OF GOOD
CAUSE BY EITHER PARTY, THE COURT MAY AT ANY TIME ORDER THAT DISCOVERY OR
INSPECTION OF ANY KIND OF MATERIAL OR INFORMATION UNDER THIS ARTICLE BE
DENIED, RESTRICTED, CONDITIONED OR DEFERRED, OR MAKE SUCH OTHER ORDER AS
IS APPROPRIATE. THE COURT MAY IMPOSE AS A CONDITION ON DISCOVERY TO A
DEFENDANT THAT THE MATERIAL OR INFORMATION TO BE DISCOVERED BE AVAILABLE
ONLY TO COUNSEL FOR THE DEFENDANT; OR, ALTERNATIVELY, THAT COUNSEL FOR
THE DEFENDANT, AND PERSONS EMPLOYED BY THE ATTORNEY OR APPOINTED BY THE
COURT TO ASSIST IN THE PREPARATION OF A DEFENDANT'S CASE, MAY NOT
DISCLOSE PHYSICAL COPIES OF THE DISCOVERABLE DOCUMENTS TO A DEFENDANT OR
TO ANYONE ELSE, PROVIDED THAT THE PROSECUTION AFFORDS THE DEFENDANT
ACCESS TO INSPECT REDACTED COPIES OF THE DISCOVERABLE DOCUMENTS AT A
SUPERVISED LOCATION THAT PROVIDES REGULAR AND REASONABLE HOURS FOR SUCH
ACCESS, SUCH AS A PROSECUTOR'S OFFICE, POLICE STATION, FACILITY OF
DETENTION, OR COURT. THE COURT MAY PERMIT A PARTY SEEKING OR OPPOSING A
PROTECTIVE ORDER UNDER THIS SECTION, OR ANOTHER AFFECTED PERSON, TO
SUBMIT PAPERS OR TESTIFY ON THE RECORD EX PARTE OR IN CAMERA. ANY SUCH
PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY MAY BE SEALED AND SHALL
CONSTITUTE A PART OF THE RECORD ON APPEAL. THIS SECTION DOES NOT ALTER
THE ALLOCATION OF THE BURDEN OF PROOF WITH REGARD TO MATTERS AT ISSUE,
INCLUDING PRIVILEGE.
2. MODIFICATION OF TIME PERIODS FOR DISCOVERY. UPON MOTION OF A PARTY
IN AN INDIVIDUAL CASE, THE COURT MAY ALTER THE TIME PERIODS FOR DISCOV-
ERY IMPOSED BY THIS ARTICLE UPON A SHOWING OF GOOD CAUSE.
3. SHOWING OF GOOD CAUSE. GOOD CAUSE UNDER THIS SECTION MAY INCLUDE
CONSTITUTIONAL RIGHTS OR LIMITATIONS; DANGER TO THE INTEGRITY OF PHYS-
ICAL EVIDENCE; A SUBSTANTIAL RISK OF PHYSICAL HARM, INTIMIDATION,
ECONOMIC REPRISAL, BRIBERY OR UNJUSTIFIED ANNOYANCE OR EMBARRASSMENT TO
ANY PERSON; A SUBSTANTIAL RISK OF AN ADVERSE EFFECT UPON THE LEGITIMATE
NEEDS OF LAW ENFORCEMENT, INCLUDING THE PROTECTION OF THE CONFIDENTIALI-
TY OF INFORMANTS; DANGER TO ANY PERSON STEMMING FROM FACTORS SUCH AS A
DEFENDANT'S GANG AFFILIATION, PRIOR HISTORY OF INTERFERING WITH
WITNESSES, OR THREATS OR INTIMIDATING ACTIONS DIRECTED AT POTENTIAL
WITNESSES; OR OTHER SIMILAR FACTORS THAT ALSO OUTWEIGH THE USEFULNESS OF
THE DISCOVERY.
4. SUCCESSOR COUNSEL OR PRO SE DEFENDANT. IN CASES IN WHICH THE ATTOR-
NEY-CLIENT RELATIONSHIP IS TERMINATED PRIOR TO TRIAL FOR ANY REASON, ANY
MATERIAL OR INFORMATION DISCLOSED SUBJECT TO A CONDITION THAT IT BE
AVAILABLE ONLY TO COUNSEL FOR THE DEFENDANT, OR LIMITED IN DISSEMINATION
BY PROTECTIVE ORDER OR OTHERWISE, SHALL BE PROVIDED ONLY TO SUCCESSOR
COUNSEL FOR THE DEFENDANT UNDER THE SAME CONDITION OR BE RETURNED TO THE
PROSECUTION, UNLESS THE COURT RULES OTHERWISE FOR GOOD CAUSE SHOWN OR
THE PROSECUTOR GIVES WRITTEN CONSENT. ANY WORK PRODUCT DERIVED FROM SUCH
MATERIAL OR INFORMATION SHALL NOT BE PROVIDED TO THE DEFENDANT, UNLESS
THE COURT RULES OTHERWISE OR THE PROSECUTOR GIVES WRITTEN CONSENT. IF
THE DEFENDANT IS ACTING AS HIS OR HER OWN ATTORNEY, THE COURT MAY REGU-
LATE THE TIME, PLACE AND MANNER OF ACCESS TO ANY DISCOVERABLE MATERIAL
OR INFORMATION; AND IT MAY AS APPROPRIATE APPOINT PERSONS TO ASSIST THE
DEFENDANT IN THE INVESTIGATION OR PREPARATION OF THE CASE. UPON MOTION
OR APPLICATION OF A DEFENDANT ACTING AS HIS OR HER OWN ATTORNEY, THE
COURT MAY AT ANY TIME MODIFY OR VACATE ANY CONDITION OR RESTRICTION
RELATING TO ACCESS TO DISCOVERABLE MATERIAL OR INFORMATION, FOR GOOD
CAUSE SHOWN.
5. EXPEDITED REVIEW OF ADVERSE RULING. (A) A PARTY THAT HAS UNSUCCESS-
FULLY SOUGHT, OR UNSUCCESSFULLY OPPOSED THE GRANTING OF, A PROTECTIVE
ORDER UNDER THIS SECTION RELATING TO THE NAME, ADDRESS, CONTACT INFORMA-
S. 6847 3
TION OR STATEMENTS OF A PERSON MAY OBTAIN EXPEDITED REVIEW OF THAT
RULING BY AN INDIVIDUAL JUSTICE OF THE INTERMEDIATE APPELLATE COURT TO
WHICH AN APPEAL FROM A JUDGMENT OF CONVICTION IN THE CASE WOULD BE
TAKEN.
(B) SUCH REVIEW SHALL BE SOUGHT WITHIN TWO BUSINESS DAYS OF THE
ADVERSE OR PARTIALLY ADVERSE RULING, BY ORDER TO SHOW CAUSE FILED WITH
THE INTERMEDIATE APPELLATE COURT. THE ORDER TO SHOW CAUSE SHALL IN ADDI-
TION BE TIMELY SERVED ON THE LOWER COURT AND ON THE OPPOSING PARTY, AND
SHALL BE ACCOMPANIED BY A SWORN AFFIRMATION STATING IN GOOD FAITH (I)
THAT THE RULING AFFECTS SUBSTANTIAL INTERESTS, AND (II) THAT DILIGENT
EFFORTS TO REACH AN ACCOMMODATION OF THE UNDERLYING DISCOVERY DISPUTE
WITH OPPOSING COUNSEL FAILED OR THAT NO ACCOMMODATION WAS FEASIBLE;
EXCEPT THAT SERVICE ON THE OPPOSING PARTY, AND A STATEMENT REGARDING
EFFORTS TO REACH AN ACCOMMODATION, ARE UNNECESSARY WHERE THE OPPOSING
PARTY WAS NOT MADE AWARE OF THE APPLICATION FOR A PROTECTIVE ORDER AND
GOOD CAUSE EXISTS FOR OMITTING SERVICE OF THE ORDER TO SHOW CAUSE ON THE
OPPOSING PARTY. THE LOWER COURT'S ORDER SUBJECT TO REVIEW SHALL BE
STAYED UNTIL THE APPELLATE JUSTICE RENDERS DECISION.
(C) THE ASSIGNMENT OF THE INDIVIDUAL APPELLATE JUSTICE, AND THE MODE
OF AND PROCEDURE FOR THE REVIEW, ARE DETERMINED BY RULES OF THE INDIVID-
UAL APPELLATE COURTS. THE APPELLATE JUSTICE MAY CONSIDER ANY RELEVANT
AND RELIABLE INFORMATION BEARING ON THE ISSUE, AND MAY DISPENSE WITH
WRITTEN BRIEFS OTHER THAN SUPPORTING AND OPPOSING MATERIALS PREVIOUSLY
SUBMITTED TO THE LOWER COURT. THE APPELLATE JUSTICE MAY DISPENSE WITH
THE ISSUANCE OF A WRITTEN OPINION IN RENDERING HIS OR HER DECISION, AND
WHEN PRACTICABLE SHALL RENDER DECISION EXPEDITIOUSLY. SUCH REVIEW AND
DECISION SHALL NOT AFFECT THE RIGHT OF A DEFENDANT, IN A SUBSEQUENT
APPEAL FROM A JUDGMENT OF CONVICTION, TO CLAIM AS ERROR THE RULING
REVIEWED.
6. COMPLIANCE WITH PROTECTIVE ORDER. ANY PROTECTIVE ORDER ISSUED UNDER
THIS ARTICLE IS A MANDATE OF THE COURT FOR PURPOSES OF THE OFFENSE OF
CRIMINAL CONTEMPT IN SUBDIVISION THREE OF SECTION 215.50 OF THE PENAL
LAW.
§ 245.20 PHASE ONE DISCOVERY OBLIGATION OF PROSECUTION.
1. TIMING OF PHASE ONE DISCOVERY FOR THE DEFENDANT. THE PROSECUTION
SHALL PERFORM ITS PHASE ONE DISCOVERY OBLIGATIONS UNDER THIS SECTION
WITHIN FIFTEEN CALENDAR DAYS AFTER THE DEFENDANT'S ARRAIGNMENT ON AN
INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR-
MATION, OR SIMPLIFIED INFORMATION. PORTIONS OF MATERIALS CLAIMED TO BE
NON-DISCOVERABLE MAY BE WITHHELD PENDING A DETERMINATION AND RULING OF
THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE DEFENDANT SHALL
BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A
PARTICULAR SUBSECTION, AND THE DISCOVERABLE PORTIONS OF SUCH MATERIALS
SHALL BE DISCLOSED IF PRACTICABLE. WHEN THE DISCOVERABLE MATERIALS ARE
EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD IN THIS SUBDIVISION MAY BE
STAYED BY UP TO AN ADDITIONAL FORTY-FIVE CALENDAR DAYS WITHOUT NEED FOR
A MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.10 OF THIS ARTICLE.
WHEN THE PROSECUTOR IS ENGAGED IN AN ONGOING TRIAL OR DOES NOT REPORT TO
WORK DUE TO A VACATION OR SIMILAR REASON DURING ONE OR MORE DAYS OF THE
TIME PERIOD IN THIS SUBDIVISION, THAT TIME PERIOD MAY BE STAYED BY AN
ADDITIONAL SEVEN CALENDAR DAYS WITHOUT NEED FOR A MOTION PURSUANT TO
SUBDIVISION TWO OF SECTION 245.10 OF THIS ARTICLE.
2. PHASE ONE DISCOVERY FOR THE DEFENDANT. THE PROSECUTION SHALL
DISCLOSE TO THE DEFENDANT AS PART OF PHASE ONE DISCOVERY, AND PERMIT THE
DEFENDANT TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF THE FOLLOW-
S. 6847 4
ING ITEMS AND INFORMATION WHEN IT RELATES TO THE SUBJECT MATTER OF THE
CASE:
(A) ALL ELECTRONICALLY STORED POLICE REPORTS AND LAW ENFORCEMENT AGEN-
CY REPORTS THAT ARE IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSE-
CUTION, OR PERSONS UNDER THE PROSECUTION'S DIRECTION AND CONTROL.
(B) ALL WRITTEN OR RECORDED STATEMENTS, AND THE SUBSTANCE OF ALL ORAL
STATEMENTS, MADE BY THE DEFENDANT OR A CO-DEFENDANT TO A PUBLIC SERVANT
ENGAGED IN LAW ENFORCEMENT ACTIVITY OR TO A PERSON THEN ACTING UNDER HIS
OR HER DIRECTION OR IN COOPERATION WITH HIM OR HER, OTHER THAN STATE-
MENTS MADE IN THE COURSE OF THE CRIMINAL TRANSACTION.
(C) A LIST OF ALL TANGIBLE OBJECTS OBTAINED FROM, OR ALLEGEDLY
POSSESSED BY, THE DEFENDANT OR A CO-DEFENDANT. THE LIST SHALL INCLUDE A
DESIGNATION BY THE PROSECUTOR AS TO WHICH OBJECTS WERE PHYSICALLY OR
CONSTRUCTIVELY POSSESSED BY THE DEFENDANT AND WERE RECOVERED DURING A
SEARCH OR SEIZURE BY A PUBLIC SERVANT OR AN AGENT THEREOF, AND WHICH
TANGIBLE OBJECTS WERE RECOVERED BY A 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 BY
MEANS OF A STATUTORY PRESUMPTION OF POSSESSION, IT SHALL DESIGNATE THAT
INTENTION AS TO EACH SUCH OBJECT. IF REASONABLY PRACTICABLE, IT SHALL
ALSO DESIGNATE THE LOCATION FROM WHICH EACH TANGIBLE OBJECT WAS RECOV-
ERED.
(D) THE NAMES OF, AND ADDRESSES OR ADEQUATE ALTERNATIVE CONTACT INFOR-
MATION FOR, 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.
INFORMATION UNDER THIS SUBSECTION RELATING TO ANY PERSON MAY BE WITH-
HELD, AND REDACTED FROM DISCOVERY MATERIALS, AS PROVIDED IN SUBDIVISION
THREE OR FOUR OF THIS SECTION. INFORMATION UNDER THIS SUBSECTION RELAT-
ING TO A CONFIDENTIAL INFORMANT MAY BE WITHHELD, AND REDACTED FROM
DISCOVERY MATERIALS, WITHOUT NEED FOR A MOTION PURSUANT TO SECTION
245.10 OF THIS ARTICLE; BUT THE DEFENDANT SHALL BE NOTIFIED IN WRITING
THAT SUCH INFORMATION HAS NOT BEEN DISCLOSED, UNLESS THE COURT RULES
OTHERWISE FOR GOOD CAUSE SHOWN.
(E) THE NAME AND WORK AFFILIATION 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. INFORMATION UNDER
THIS SUBSECTION RELATING TO UNDERCOVER PERSONNEL MAY BE WITHHELD, AND
REDACTED FROM DISCOVERY MATERIALS, WITHOUT NEED FOR A MOTION PURSUANT TO
SECTION 245.10 OF THIS ARTICLE; BUT THE DEFENDANT SHALL BE NOTIFIED IN
WRITING THAT SUCH INFORMATION HAS NOT BEEN DISCLOSED, UNLESS THE COURT
RULES OTHERWISE FOR GOOD CAUSE SHOWN.
(F) WHEN WRITTEN AND RECORDED STATEMENTS ARE IN THE POSSESSION OF THE
PROSECUTION (NOT SOLELY IN THE POSSESSION OF POLICE OR ANOTHER LAW
ENFORCEMENT AGENCY), ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED
IN ANY WRITING OR RECORDING, MADE BY PERSONS WHO HAVE EVIDENCE OR INFOR-
MATION RELEVANT TO ANY OFFENSE CHARGED OR TO A POTENTIAL DEFENSE THERE-
TO. STATEMENTS SOLELY IN THE POSSESSION OF POLICE OR ANOTHER LAW
ENFORCEMENT AGENCY AT THE TIME OF PHASE ONE DISCOVERY ARE DISCOVERABLE
UNDER PARAGRAPH (C) OF SUBDIVISION TWO OF SECTION 245.30 OF THIS ARTI-
CLE.
(G) WHEN IT IS KNOWN TO THE PROSECUTION (NOT SOLELY KNOWN TO POLICE OR
ANOTHER LAW ENFORCEMENT AGENCY), ALL EVIDENCE AND INFORMATION, WHETHER
OR NOT ADMISSIBLE OR RECORDED IN TANGIBLE FORM, THAT TENDS TO (I) EXCUL-
PATE THE DEFENDANT; (II) MITIGATE THE DEFENDANT'S CULPABILITY AS TO A
S. 6847 5
CHARGED OFFENSE; (III) SUPPORT A POTENTIAL DEFENSE TO A CHARGED OFFENSE;
(IV) PROVIDE A BASIS FOR A MOTION TO SUPPRESS EVIDENCE ON CONSTITUTIONAL
GROUNDS; (V) SIGNIFICANTLY IMPUGN THE CREDIBILITY OF AN IMPORTANT PROSE-
CUTION WITNESS, INFORMANT OR EVIDENCE; OR (VI) MITIGATE PUNISHMENT.
FAVORABLE EVIDENCE AND INFORMATION KNOWN SOLELY TO POLICE OR ANOTHER LAW
ENFORCEMENT AGENCY AT THE TIME OF PHASE ONE DISCOVERY IS DISCOVERABLE
UNDER PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.30 OF THIS ARTI-
CLE. THE PROSECUTION SHALL DISCLOSE EVIDENCE OR INFORMATION UNDER THIS
SUBSECTION EXPEDITIOUSLY UPON ITS RECEIPT BY THE PROSECUTOR, NOTWITH-
STANDING THE OTHERWISE-APPLICABLE TIME PERIODS FOR DISCLOSURE IN THIS
ARTICLE.
(H) WHETHER A SEARCH WARRANT HAS BEEN EXECUTED AND ALL DOCUMENTS
RELATING THERETO, INCLUDING BUT NOT LIMITED TO THE WARRANT, THE WARRANT
APPLICATION, SUPPORTING AFFIDAVITS, A POLICE INVENTORY OF ALL PROPERTY
SEIZED UNDER THE WARRANT, AND A TRANSCRIPT OF ALL TESTIMONY OR OTHER
ORAL COMMUNICATIONS OFFERED IN SUPPORT OF THE WARRANT APPLICATION.
(I) THE APPROXIMATE DATE, TIME AND PLACE OF THE OFFENSE OR OFFENSES
CHARGED AND OF THE DEFENDANT'S ARREST.
3. PROSECUTOR'S OPTION TO RESTRICT DISCLOSURE OF CONTACT INFORMATION
BY ARRANGING WITNESS INTERVIEW. WITHIN THE PROSECUTOR'S DISCRETION, THE
ADDRESS, TELEPHONE NUMBER OR SIMILAR CONTACT INFORMATION FOR ANY PERSON
WHOSE NAME IS DISCLOSED PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF
THIS SECTION MAY BE WITHHELD, AND REDACTED FROM OTHER DISCOVERY MATERI-
ALS, WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS ARTI-
CLE, IF THE PROSECUTOR MAKES THE PERSON AVAILABLE TO COUNSEL FOR THE
DEFENDANT FOR AN IN-PERSON INTERVIEW WITHIN THE TIME PERIOD SPECIFIED IN
SUBDIVISION ONE OF THIS SECTION. IN LIEU OF AN IN-PERSON INTERVIEW, A
TELEPHONE INTERVIEW MAY BE USED WHERE ARRANGING AN IN-PERSON INTERVIEW
IS NOT REASONABLY PRACTICABLE OR THE PERSON DECLINES TO PARTICIPATE IN
AN IN-PERSON INTERVIEW; BUT LAW ENFORCEMENT PERSONNEL SHALL NOT EXPRESS-
LY OR IMPLICITLY ENCOURAGE A PERSON TO DECLINE TO PARTICIPATE IN AN
IN-PERSON INTERVIEW. THIS SUBDIVISION DOES NOT CREATE ANY RIGHT FOR THE
DEFENDANT PERSONALLY TO ATTEND OR TO PARTICIPATE IN SUCH AN INTERVIEW.
THE PROSECUTION SHALL PROVIDE COUNSEL FOR THE DEFENDANT WITH THE OTHER
MATERIALS DISCOVERABLE UNDER SUBDIVISION TWO OF THIS SECTION PRIOR TO
SUCH AN INTERVIEW.
4. PROSECUTOR'S OPTION TO RESTRICT DISCLOSURE OF CONTACT INFORMATION
IN VIOLENT FELONY CASES. (A) WHERE THE DEFENDANT IS CHARGED WITH A
VIOLENT FELONY OFFENSE, WITHIN THE PROSECUTOR'S DISCRETION THE ADDRESS,
TELEPHONE NUMBER OR SIMILAR CONTACT INFORMATION FOR ANY PERSON WHOSE
NAME IS DISCLOSED PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF THIS
SECTION MAY BE WITHHELD, AND REDACTED FROM OTHER DISCOVERY MATERIALS,
WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS ARTICLE;
EXCEPT THAT A LIST OF THE ADDRESSES OR ADEQUATE ALTERNATIVE CONTACT
INFORMATION FOR PERSONS WHOSE INFORMATION HAS BEEN WITHHELD OR REDACTED
SHALL BE SEPARATELY PROVIDED TO COUNSEL FOR THE DEFENDANT IN A DOCUMENT
CLEARLY MARKED AS CONFIDENTIAL, UNLESS A PROTECTIVE ORDER PURSUANT TO
SECTION 245.10 OF THIS ARTICLE IS ISSUED BY THE COURT FOR GOOD CAUSE
SHOWN. IN ADDITION DISCOVERY OF THIS INFORMATION MAY BE CONDITIONED ON
THE DEFENDANT'S PERSONAL CONSENT, GIVEN IN OPEN COURT IN THE PRESENCE OF
THE COURT AT ARRAIGNMENT OR AT ANOTHER TIME, TO THE USE OF THE CONFIDEN-
TIALITY PROCEDURE SET FORTH IN THIS SUBDIVISION. THE COURT SHALL SPECIF-
ICALLY CAUTION THE DEFENDANT, IN THE COLLOQUY ABOUT USE OF THIS PROCE-
DURE, CONCERNING THE OFFENSES OF TAMPERING WITH A WITNESS AND
INTIMIDATING A VICTIM OR WITNESS IN ARTICLE TWO HUNDRED FIFTEEN OF THE
PENAL LAW. NOTHING IN THIS SUBDIVISION PRECLUDES THE COURT FROM ISSUING
S. 6847 6
A DIFFERENT PROTECTIVE ORDER PURSUANT TO SECTION 245.10 OF THIS ARTICLE
FOR GOOD CAUSE SHOWN.
(B) WHEN THE CONFIDENTIALITY PROCEDURE SET FORTH IN THIS SUBDIVISION
IS USED, THE FOLLOWING REQUIREMENTS APPLY:
(I) EXCEPT AS PROVIDED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH, COUNSEL
FOR THE DEFENDANT MAY NOT DISCLOSE OR PERMIT TO BE DISCLOSED TO A
DEFENDANT OR TO ANYONE ELSE THE LIST DESCRIBED IN THIS SUBDIVISION OR
ITS CONTENTS, UNLESS SPECIFICALLY PERMITTED TO DO SO BY THE COURT FOR
GOOD CAUSE SHOWN OR UNLESS THE PROSECUTOR GIVES WRITTEN CONSENT. THE
COURT MAY ALLOW A PARTY SEEKING OR OPPOSING SUCH PERMISSION, OR ANOTHER
AFFECTED PERSON, TO SUBMIT PAPERS OR TESTIFY ON THE RECORD EX PARTE OR
IN CAMERA. ANY SUCH PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY MAY BE
SEALED AND SHALL CONSTITUTE A PART OF THE RECORD ON APPEAL. THE OBLI-
GATION TO MAINTAIN CONFIDENTIALITY DESCRIBED IN THIS SUBDIVISION IS A
MANDATE OF THE COURT FOR PURPOSES OF THE OFFENSE OF CRIMINAL CONTEMPT IN
SUBDIVISION THREE OF SECTION 215.50 OF THE PENAL LAW.
(II) NOTWITHSTANDING SUBPARAGRAPH (I) OF THIS PARAGRAPH, COUNSEL FOR
THE DEFENDANT MAY DISCLOSE OR PERMIT TO BE DISCLOSED THE LISTED CONTACT
INFORMATION FOR A POTENTIAL WITNESS TO PERSONS EMPLOYED BY THE ATTORNEY
OR TO PERSONS APPOINTED BY THE COURT TO ASSIST IN THE INVESTIGATION OR
PREPARATION OF A DEFENDANT'S CASE IF THAT DISCLOSURE IS REQUIRED FOR
THAT INVESTIGATION OR PREPARATION. PERSONS PROVIDED THIS INFORMATION BY
THE ATTORNEY SHALL BE INFORMED BY THE ATTORNEY THAT FURTHER DISSEM-
INATION OF THE INFORMATION, EXCEPT AS PROVIDED BY THIS SUBDIVISION, IS
PROHIBITED. WITHIN THE PROSECUTOR'S DISCRETION, DISCOVERY OF THE LISTED
CONTACT INFORMATION MAY BE CONDITIONED ON SERVICE OF A WRITTEN STATEMENT
BY COUNSEL FOR THE DEFENDANT OF THE NAMES OF ANY EMPLOYEES WHO MAY BE
PROVIDED INFORMATION PURSUANT TO THIS SUBSECTION, AND DESCRIBING ANY
KNOWN PRIOR CONNECTIONS BETWEEN THOSE EMPLOYEES AND ALL DEFENDANTS IN
THE CASE.
(III) IF THE DEFENDANT IS ACTING AS HIS OR HER OWN ATTORNEY, IN LIEU
OF USE OF THE CONFIDENTIALITY PROCEDURE SET FORTH IN THIS SUBDIVISION,
THE COURT SHALL CONSIDER ANY ARGUMENTS OF THE DEFENDANT RELATING TO A
NEED FOR CONTACT INFORMATION FOR A POTENTIAL WITNESS, AND ANY COUNTER-
VAILING ARGUMENTS OF THE PROSECUTION OR ANOTHER AFFECTED PERSON. WHERE
SUCH ARGUMENTS ARE MADE, THE COURT SHALL THEN ORDER AS TO EACH SUCH
POTENTIAL WITNESS, AS APPROPRIATE, THAT ADEQUATE CONTACT INFORMATION
EITHER BE PROVIDED OR BE WITHHELD, OR PROVIDE FOR CONTACT WITH THE
POTENTIAL WITNESS ONLY THROUGH PERSONS APPOINTED BY THE COURT TO ASSIST
IN THE INVESTIGATION OR PREPARATION OF THE DEFENDANT'S CASE, OR IMPOSE
ANY OTHER REASONABLE RESTRICTIONS ON DISCLOSURE. EXPEDITED REVIEW OF A
RULING UNDER THIS SUBPARAGRAPH MAY BE SOUGHT AS PROVIDED IN SUBDIVISION
FIVE OF SECTION 245.10 OF THIS ARTICLE.
(IV) IF COUNSEL FOR THE DEFENDANT LEARNS ABOUT ANY INTENTIONAL OR
UNINTENTIONAL BREACH OF THE CONFIDENTIALITY PROCEDURE SET FORTH IN THIS
SUBDIVISION THAT WAS ATTRIBUTABLE TO CONDUCT OF A LAWYER FOR ANY DEFEND-
ANT IN THE CASE, OR CONDUCT OF A PERSON EMPLOYED BY A LAWYER IN THE CASE
OR APPOINTED BY THE COURT, HE OR SHE SHALL EXPEDITIOUSLY NOTIFY THE
COURT OR THE PROSECUTOR.
§ 245.30 PHASE TWO DISCOVERY OBLIGATION OF PROSECUTION.
1. TIMING OF PHASE TWO DISCOVERY FOR THE DEFENDANT. THE PROSECUTION
SHALL PERFORM ITS PHASE TWO DISCOVERY OBLIGATIONS UNDER THIS SECTION
WITHIN NINETY CALENDAR DAYS AFTER THE DEFENDANT'S ARRAIGNMENT ON AN
INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR-
MATION, OR SIMPLIFIED INFORMATION. PORTIONS OF MATERIALS CLAIMED TO BE
NON-DISCOVERABLE MAY BE WITHHELD PENDING A DETERMINATION AND RULING OF
S. 6847 7
THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE DEFENDANT SHALL
BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A
PARTICULAR SUBSECTION, AND THE DISCOVERABLE PORTIONS OF SUCH MATERIALS
SHALL BE DISCLOSED IF PRACTICABLE. WHEN THE DISCOVERABLE MATERIALS ARE
EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD IN THIS SUBDIVISION MAY BE
STAYED BY UP TO AN ADDITIONAL THIRTY CALENDAR DAYS WITHOUT NEED FOR A
MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.10 OF THIS ARTICLE.
2. PHASE TWO DISCOVERY FOR THE DEFENDANT. THE PROSECUTION SHALL
DISCLOSE TO THE DEFENDANT AS PART OF PHASE TWO DISCOVERY, AND PERMIT THE
DEFENDANT TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF THE FOLLOW-
ING ITEMS AND INFORMATION WHEN IT RELATES TO THE SUBJECT MATTER OF THE
CASE AND IS IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR
PERSONS UNDER THE PROSECUTION'S DIRECTION OR CONTROL:
(A) ALL TRANSCRIPTS OF THE TESTIMONY OF A PERSON WHO HAS TESTIFIED
BEFORE A GRAND JURY, INCLUDING BUT NOT LIMITED TO THE DEFENDANT OR A
CO-DEFENDANT. IF IN THE EXERCISE OF REASONABLE DILIGENCE, AND DUE TO THE
LIMITED AVAILABILITY OF TRANSCRIPTION RESOURCES, A TRANSCRIPT IS
UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVI-
SION ONE OF THIS SECTION, THAT PERIOD MAY BE STAYED BY UP TO AN ADDI-
TIONAL FORTY-FIVE CALENDAR DAYS WITHOUT NEED FOR A MOTION PURSUANT TO
SECTION 245.10 OF THIS ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE
AS SOON AS PRACTICABLE AND NOT LATER THAN THIRTY CALENDAR DAYS BEFORE A
SCHEDULED TRIAL DATE, UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION
245.10 OF THIS ARTICLE. WHEN THE COURT IS REQUIRED TO REVIEW GRAND JURY
TRANSCRIPTS, THE PROSECUTION SHALL DISCLOSE THEM TO THE COURT EXPE-
DITIOUSLY UPON THEIR RECEIPT BY THE PROSECUTOR, NOTWITHSTANDING THE
OTHERWISE-APPLICABLE TIME PERIODS FOR DISCLOSURE IN THIS ARTICLE.
(B) ALL POLICE REPORTS AND LAW ENFORCEMENT AGENCY REPORTS, INCLUDING
THOSE NOT ELECTRONICALLY STORED. REPORTS PREVIOUSLY DISCLOSED PURSUANT
TO PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE
NEED NOT BE DISCLOSED AGAIN.
(C) ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING
OR RECORDING, MADE BY PERSONS WHO HAVE EVIDENCE OR INFORMATION RELEVANT
TO ANY OFFENSE CHARGED OR TO A POTENTIAL DEFENSE THERETO, INCLUDING
THOSE THAT WERE SOLELY IN THE POSSESSION OF POLICE OR ANOTHER LAW
ENFORCEMENT AGENCY AT THE TIME OF PHASE ONE DISCOVERY. STATEMENTS
PREVIOUSLY DISCLOSED PURSUANT TO PARAGRAPH (F) OF SUBDIVISION TWO OF
SECTION 245.20 OF THIS ARTICLE NEED NOT BE DISCLOSED AGAIN.
(D) ALL EVIDENCE AND INFORMATION, INCLUDING THAT WHICH WAS SOLELY
KNOWN TO POLICE OR OTHER LAW ENFORCEMENT AGENCIES AT THE TIME OF PHASE
ONE DISCOVERY, AND WHETHER OR NOT IT IS ADMISSIBLE OR RECORDED IN TANGI-
BLE FORM, THAT TENDS TO (I) EXCULPATE THE DEFENDANT; (II) MITIGATE THE
DEFENDANT'S CULPABILITY AS TO A CHARGED OFFENSE; (III) SUPPORT A POTEN-
TIAL DEFENSE TO A CHARGED OFFENSE; (IV) PROVIDE A BASIS FOR A MOTION TO
SUPPRESS EVIDENCE ON CONSTITUTIONAL GROUNDS; (V) IMPUGN THE CREDIBILITY
OF A PROSECUTION WITNESS, INFORMANT OR EVIDENCE; OR (VI) MITIGATE
PUNISHMENT. EVIDENCE OR INFORMATION PREVIOUSLY DISCLOSED PURSUANT TO
PARAGRAPH (G) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE NEED
NOT BE DISCLOSED AGAIN. THE PROSECUTION SHALL DISCLOSE EVIDENCE OR
INFORMATION UNDER THIS SUBSECTION EXPEDITIOUSLY UPON ITS RECEIPT BY THE
PROSECUTOR, NOTWITHSTANDING THE OTHERWISE-APPLICABLE TIME PERIODS FOR
DISCLOSURE IN THIS ARTICLE.
(E) 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 OR INDUCEMENT.
S. 6847 8
(F) ALL TANGIBLE PROPERTY THAT THE PROSECUTION INTENDS TO INTRODUCE IN
ITS CASE-IN-CHIEF AT TRIAL OR A PRE-TRIAL HEARING. DISCOVERY OF ITEMS
UNDER THIS SUBSECTION MAY BE CONDITIONED ON SERVICE OF A DEMAND TO
PRODUCE MADE BY THE DEFENDANT, IF IN PHASE ONE DISCOVERY THE PROSECUTION
TIMELY SERVED NOTICE ON THE DEFENDANT THAT A DEMAND TO PRODUCE ITEMS
UNDER THIS SUBSECTION WOULD HAVE TO BE SERVED ON THE PROSECUTION WITHIN
THIRTY DAYS OF THAT NOTICE. IF IN THE EXERCISE OF REASONABLE DILIGENCE
THE PROSECUTOR HAS NOT FORMED AN INTENTION WITHIN THE TIME PERIOD SPECI-
FIED IN THIS SECTION THAT AN ITEM UNDER THIS SUBSECTION WILL BE INTRO-
DUCED AT TRIAL OR A PRE-TRIAL HEARING, THAT PERIOD SHALL BE STAYED WITH-
OUT NEED FOR A MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.10 OF
THIS ARTICLE; BUT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE
AND SUBJECT TO THE CONTINUING DUTY TO DISCLOSE IN SECTION 245.75 OF THIS
ARTICLE.
(G) ALL TAPES OR OTHER ELECTRONIC RECORDINGS WHICH THE PROSECUTION
INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING.
(H) ALL PHOTOGRAPHS AND DRAWINGS MADE OR COMPLETED BY A PUBLIC SERVANT
ENGAGED IN LAW ENFORCEMENT ACTIVITY, OR WHICH WERE MADE BY A PERSON WHOM
THE PROSECUTOR INTENDS TO CALL AS A WITNESS AT TRIAL OR A PRE-TRIAL
HEARING, OR WHICH THE PROSECUTION INTENDS TO INTRODUCE AT TRIAL OR A
PRE-TRIAL HEARING.
(I) ALL PHOTOGRAPHS, PHOTOCOPIES AND REPRODUCTIONS 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.
(J) ALL REPORTS AND DOCUMENTS CONCERNING PHYSICAL OR MENTAL EXAMINA-
TIONS, OR SCIENTIFIC TESTS OR EXPERIMENTS OR COMPARISONS, RELATING TO
THE CRIMINAL ACTION OR PROCEEDING WHICH WERE MADE BY OR AT THE REQUEST
OR DIRECTION OF A PUBLIC SERVANT ENGAGED IN LAW ENFORCEMENT ACTIVITY, OR
WHICH WERE MADE BY A PERSON WHOM THE PROSECUTOR INTENDS TO CALL AS A
WITNESS AT TRIAL OR A PRE-TRIAL HEARING, OR WHICH THE PROSECUTION
INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING.
(K) EXPERT OPINION EVIDENCE, INCLUDING THE NAME, BUSINESS ADDRESS,
CURRENT CURRICULUM VITAE, AND A LIST OF PUBLICATIONS OF EACH EXPERT
WITNESS WHOM THE PROSECUTOR INTENDS TO CALL AS A WITNESS AT TRIAL OR A
PRE-TRIAL HEARING, 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 PARAGRAPH 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 THIS SECTION, THAT PERIOD SHALL BE
STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS
ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE
AND NOT LATER THAN SIXTY CALENDAR DAYS BEFORE A SCHEDULED TRIAL DATE,
UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10 OF THIS ARTICLE.
WHEN THE PROSECUTION'S EXPERT WITNESS IS BEING CALLED IN RESPONSE TO
DISCLOSURE OF AN EXPERT WITNESS BY THE DEFENDANT, THE COURT SHALL ALTER
A SCHEDULED TRIAL DATE, IF NECESSARY, TO ALLOW THE PROSECUTION THIRTY
CALENDAR DAYS TO MAKE THE DISCLOSURE AND THE DEFENDANT THIRTY CALENDAR
DAYS TO PREPARE AND RESPOND TO THE NEW MATERIALS.
(L) THE RESULTS OF COMPLETE CRIMINAL HISTORY RECORD CHECKS FOR ALL
DEFENDANTS AND ALL PERSONS DESIGNATED AS POTENTIAL PROSECUTION WITNESSES
PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS
ARTICLE, OTHER THAN THOSE WITNESSES WHO ARE EXPERTS OR LAW ENFORCEMENT
OFFICERS.
S. 6847 9
(M) WHEN IT IS KNOWN TO THE PROSECUTION, THE EXISTENCE OF ANY PENDING
CRIMINAL ACTION AGAINST ALL PERSONS DESIGNATED AS POTENTIAL PROSECUTION
WITNESSES PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.20
OF THIS ARTICLE.
(N) 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 INFORMA-
TION, THE MOST RECENT RECORD OF INSPECTION, CALIBRATION AND REPAIR OF
MACHINES AND INSTRUMENTS UTILIZED TO PERFORM ANY SCIENTIFIC TESTS AND
EXPERIMENTS AND THE CERTIFICATION CERTIFICATE, IF ANY, HELD BY THE OPER-
ATOR OF THE MACHINE OR INSTRUMENT, AND ALL OTHER DISCLOSURES REQUIRED
UNDER THIS ARTICLE.
(O) IN ANY PROSECUTION ALLEGING A VIOLATION OF SECTIONS 156.05 OR
156.10 OF THE PENAL LAW, THE TIME, PLACE AND MANNER SUCH VIOLATION
OCCURRED.
§ 245.40 RECIPROCAL DISCOVERY OBLIGATION OF THE DEFENDANT.
1. TIMING OF RECIPROCAL DISCOVERY FOR THE PROSECUTION. THE DEFENDANT
SHALL PERFORM HIS OR HER RECIPROCAL DISCOVERY OBLIGATIONS UNDER THIS
SECTION WITHIN THIRTY CALENDAR DAYS AFTER BEING SERVED WITH THE PROSE-
CUTION'S CERTIFICATE OF COMPLIANCE PURSUANT TO SUBDIVISION ONE OF
SECTION 245.65 OF THIS ARTICLE. PORTIONS OF MATERIALS CLAIMED TO BE
NON-DISCOVERABLE MAY BE WITHHELD PENDING A DETERMINATION AND RULING OF
THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE PROSECUTION
SHALL BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED
UNDER A PARTICULAR SUBSECTION, AND THE DISCOVERABLE PORTIONS OF SUCH
MATERIALS SHALL BE DISCLOSED IF PRACTICABLE.
2. RECIPROCAL DISCOVERY FOR THE PROSECUTION. THE DEFENDANT SHALL,
SUBJECT TO CONSTITUTIONAL LIMITATIONS, DISCLOSE TO THE PROSECUTION, AND
PERMIT THE PROSECUTION TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF
THE FOLLOWING ITEMS AND INFORMATION WHEN IT IS WITHIN THE DEFENDANT'S OR
COUNSEL FOR THE DEFENDANT'S POSSESSION OR CONTROL:
(A) THE NAMES, KNOWN ALIASES, ADDRESSES AND BIRTH DATES OF ALL PERSONS
OTHER THAN THE DEFENDANT WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES
AT TRIAL OR A PRE-TRIAL HEARING. DISCLOSURE OF THIS INFORMATION FOR 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
THE PROSECUTION WITNESS HAS TESTIFIED.
(B) ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING
OR RECORDING, MADE BY ALL PERSONS OTHER THAN THE DEFENDANT WHOM THE
DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL OR A PRE-TRIAL HEARING;
EXCEPT THAT DISCLOSURE OF SUCH STATEMENTS MADE BY A PERSON WHOM THE
DEFENDANT INTENDS TO CALL AS A WITNESS FOR THE SOLE PURPOSE OF IMPEACH-
ING A PROSECUTION WITNESS IS NOT REQUIRED UNTIL AFTER THE PROSECUTION
WITNESS HAS TESTIFIED.
(C) A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE TO PERSONS
WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL OR A PRE-TRIAL
HEARING, AS WELL AS REQUESTS FOR CONSIDERATION BY SUCH PERSONS, AND
COPIES OF ALL DOCUMENTS RELEVANT TO A PROMISE, REWARD OR INDUCEMENT.
(D) ALL TANGIBLE PROPERTY, INCLUDING BUT NOT LIMITED TO TAPES OR OTHER
ELECTRONIC RECORDINGS AND PHOTOGRAPHS AND DRAWINGS, THAT THE DEFENDANT
INTENDS TO INTRODUCE IN THE DEFENDANT'S CASE-IN-CHIEF AT TRIAL OR A
PRE-TRIAL HEARING. IF IN THE EXERCISE OF REASONABLE DILIGENCE COUNSEL
FOR THE DEFENDANT HAS NOT FORMED AN INTENTION WITHIN THE TIME PERIOD
SPECIFIED IN THIS SECTION THAT AN ITEM UNDER THIS SUBSECTION WILL BE
INTRODUCED AT TRIAL OR A PRE-TRIAL HEARING, THAT PERIOD SHALL BE STAYED
WITHOUT NEED FOR A MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.10
S. 6847 10
OF THIS ARTICLE; BUT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE
AND SUBJECT TO THE CONTINUING DUTY TO DISCLOSE IN SECTION 245.75 OF THIS
ARTICLE.
(E) ALL REPORTS AND DOCUMENTS CONCERNING PHYSICAL OR MENTAL EXAMINA-
TIONS, OR SCIENTIFIC TESTS OR EXPERIMENTS OR COMPARISONS, WHICH THE
DEFENDANT INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING, OR WHICH
WERE MADE BY A PERSON WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS AT
TRIAL OR A PRE-TRIAL HEARING.
(F) INTENDED EXPERT OPINION EVIDENCE, INCLUDING THE NAME, BUSINESS
ADDRESS, CURRENT CURRICULUM VITAE, AND A LIST OF PUBLICATIONS OF EACH
EXPERT WITNESS WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS AT TRIAL
OR A PRE-TRIAL HEARING, 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 PARAGRAPH 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 THIS SECTION, THAT PERIOD SHALL BE
STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS
ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE
AND NOT LATER THAN THIRTY CALENDAR DAYS BEFORE A SCHEDULED TRIAL DATE,
UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10 OF THIS ARTICLE.
§ 245.45 DISCLOSURE OF PRIOR MISCONDUCT OR CRIMINAL ACTS.
1. USE AT TRIAL. NOT LATER THAN FIFTEEN CALENDAR DAYS BEFORE A SCHED-
ULED TRIAL DATE, 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, INFOR-
MATION, OR SIMPLIFIED INFORMATION, WHICH THE PROSECUTION INTENDS TO USE
AT TRIAL FOR PURPOSES OF:
(A) IMPEACHING THE CREDIBILITY OF THE DEFENDANT; OR
(B) AS SUBSTANTIVE PROOF OF ANY MATERIAL ISSUE IN THE CASE.
2. NOTIFICATION FOR WHAT PURPOSE. IN ADDITION THE PROSECUTION SHALL
DESIGNATE WHETHER IT INTENDS TO USE EACH LISTED ACT FOR IMPEACHMENT
AND/OR AS SUBSTANTIVE PROOF.
§ 245.50 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 STATE CONSTITUTION OR
S. 6847 11
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 245.10 OF THIS ARTICLE.
§ 245.55 COURT ORDERS FOR PRESERVATION, ACCESS, DISCOVERY OR DNA COMPAR-
ISON.
1. ORDER TO PRESERVE EVIDENCE. AT ANY TIME, A PARTY MAY MOVE FOR A
COURT 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. THE COURT SHALL HEAR AND RULE UPON SUCH
MOTIONS EXPEDITIOUSLY. THE COURT MAY MODIFY OR VACATE SUCH AN ORDER UPON
A SHOWING THAT PRESERVATION OF PARTICULAR EVIDENCE WILL CREATE SIGNIF-
ICANT HARDSHIP, ON CONDITION THAT THE PROBATIVE VALUE OF THAT EVIDENCE
IS PRESERVED BY A SPECIFIED ALTERNATIVE MEANS.
2. ORDER TO GRANT ACCESS TO PREMISES. AT ANY TIME, THE DEFENDANT MAY
MOVE FOR A COURT ORDER TO ANY INDIVIDUAL, AGENCY OR OTHER ENTITY IN
POSSESSION, CUSTODY OR CONTROL OF A CRIME SCENE OR OTHER PREMISES THAT
RELATES TO THE SUBJECT MATTER OF THE CASE OR IS OTHERWISE RELEVANT,
REQUIRING THAT COUNSEL FOR THE DEFENDANT BE GRANTED PROMPT AND REASON-
ABLE ACCESS TO INSPECT, PHOTOGRAPH OR MEASURE THAT CRIME SCENE OR THOSE
PREMISES, AND THAT THE CONDITION OF THE CRIME SCENE OR PREMISES REMAIN
UNCHANGED IN THE INTERIM. THE COURT SHALL HEAR AND RULE UPON SUCH
MOTIONS EXPEDITIOUSLY. THE COURT MAY MODIFY OR VACATE SUCH AN ORDER UPON
A SHOWING THAT GRANTING ACCESS TO A PARTICULAR CRIME SCENE OR PREMISES
WILL CREATE SIGNIFICANT HARDSHIP, ON CONDITION THAT THE PROBATIVE VALUE
OF THAT LOCATION IS PRESERVED BY A SPECIFIED ALTERNATIVE MEANS.
3. DISCRETIONARY DISCOVERY BY ORDER OF THE COURT. 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 MATERI-
AL OR INFORMATION WHICH POTENTIALLY RELATES TO THE SUBJECT MATTER OF THE
CASE AND IS REASONABLY LIKELY TO BE MATERIAL. A MOTION UNDER THIS SUBDI-
VISION 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, MODIFY OR VACATE THE ORDER IF COMPLIANCE WOULD BE UNREASONABLE OR
WILL CREATE SIGNIFICANT HARDSHIP. THE COURT MAY PERMIT A PARTY SEEKING
OR OPPOSING A DISCRETIONARY ORDER OF DISCOVERY UNDER THIS SUBDIVISION,
OR ANOTHER AFFECTED PERSON OR ENTITY, TO SUBMIT PAPERS OR TESTIFY ON THE
RECORD EX PARTE OR IN CAMERA. ANY SUCH PAPERS AND A TRANSCRIPT OF SUCH
TESTIMONY MAY BE SEALED AND SHALL CONSTITUTE A PART OF THE RECORD ON
APPEAL.
4. DNA COMPARISON ORDER. WHERE PROPERTY IN THE PROSECUTION'S
POSSESSION, CUSTODY, OR CONTROL CONSISTS OF A DEOXYRIBONUCLEIC ACID
("DNA") PROFILE OBTAINED FROM PROBATIVE BIOLOGICAL MATERIAL GATHERED IN
CONNECTION WITH THE INVESTIGATION OR PROSECUTION OF THE DEFENDANT, AND
THE DEFENDANT ESTABLISHES (A) 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 (B) THAT THE DATA MEETS
STATE DNA INDEX SYSTEM OR NATIONAL DNA INDEX SYSTEM CRITERIA AS SUCH
CRITERIA ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING SUCH A KEYBOARD
SEARCH OR SIMILAR COMPARISON, THE COURT MAY--UPON MOTION OF A DEFENDANT
AGAINST WHOM AN INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S
S. 6847 12
INFORMATION, INFORMATION, OR SIMPLIFIED INFORMATION IS PENDING--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 REASON-
ABLE. FOR PURPOSES OF THIS PARAGRAPH, A "KEYBOARD SEARCH" SHALL MEAN A
SEARCH OF A DNA PROFILE AGAINST THE DATABANK IN WHICH THE PROFILE THAT
IS SEARCHED IS NOT UPLOADED TO OR MAINTAINED IN THE DATABANK.
§ 245.60 DILIGENT EFFORT TO ASCERTAIN EXISTENCE OF MATERIAL AND INFORMA-
TION.
THE PROSECUTOR SHALL MAKE A DILIGENT, GOOD FAITH EFFORT TO ASCERTAIN
THE EXISTENCE OF MATERIAL OR INFORMATION DISCOVERABLE UNDER SECTIONS
245.20 OR 245.30 OF THIS ARTICLE AND TO CAUSE SUCH MATERIAL OR INFORMA-
TION TO BE MADE AVAILABLE FOR DISCOVERY WHERE IT EXISTS BUT IS NOT WITH-
IN THE PROSECUTOR'S POSSESSION, CUSTODY OR CONTROL; PROVIDED THAT THE
PROSECUTOR SHALL NOT BE REQUIRED TO OBTAIN BY SUBPOENA DUCES TECUM MATE-
RIAL OR INFORMATION WHICH THE DEFENDANT MAY THEREBY OBTAIN. THIS
PROVISION SHALL NOT REQUIRE THE PROSECUTOR TO ASCERTAIN THE EXISTENCE OF
WITNESSES NOT KNOWN TO POLICE OR ANOTHER LAW ENFORCEMENT AGENCY, OR THE
WRITTEN OR RECORDED STATEMENTS THEREOF, UNDER PARAGRAPH (D) OF SECTION
245.20 AND PARAGRAPH (C) OF SECTION 245.30 OF THIS ARTICLE.
§ 245.65 CERTIFICATES OF COMPLIANCE.
1. BY THE PROSECUTION. WHEN THE PROSECUTION HAS PROVIDED THE DISCOVERY
REQUIRED BY SECTIONS 245.20 AND 245.30 OF THIS ARTICLE, EXCEPT FOR ANY
ITEMS OR INFORMATION THAT ARE THE SUBJECT OF AN ORDER PURSUANT TO
SECTION 245.10 OF THIS ARTICLE, IT SHALL SERVE UPON THE DEFENDANT AND
FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE. THE CERTIFICATE SHALL
STATE THAT, AFTER EXERCISING DUE DILIGENCE AND MAKING REASONABLE
INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL AND INFORMATION SUBJECT
TO DISCOVERY, THE PROSECUTOR HAS DISCLOSED AND MADE AVAILABLE ALL KNOWN
MATERIAL AND INFORMATION SUBJECT TO DISCOVERY. IT SHALL ALSO IDENTIFY
THE ITEMS PROVIDED. IF ADDITIONAL DISCOVERY IS SUBSEQUENTLY PROVIDED
PRIOR TO TRIAL PURSUANT TO SECTION 245.75 OF THIS ARTICLE, A SUPPLE-
MENTAL CERTIFICATE SHALL BE SERVED UPON THE DEFENDANT AND FILED WITH THE
COURT IDENTIFYING THE ADDITIONAL MATERIAL AND INFORMATION PROVIDED. NO
ADVERSE CONSEQUENCE TO THE PROSECUTION OR THE PROSECUTOR SHALL RESULT
FROM THE FILING OF A CERTIFICATE OF COMPLIANCE IN GOOD FAITH; BUT THE
COURT MAY GRANT A REMEDY FOR A DISCOVERY VIOLATION AS PROVIDED IN
SECTION 245.85 OF THIS ARTICLE.
2. BY THE DEFENDANT. WHEN THE DEFENDANT HAS PROVIDED ALL DISCOVERY
REQUIRED BY SECTION 245.40 OF THIS ARTICLE, EXCEPT FOR ANY ITEMS OR
INFORMATION THAT ARE THE SUBJECT OF AN ORDER PURSUANT TO SECTION 245.10
OF THIS ARTICLE, COUNSEL FOR THE DEFENDANT SHALL SERVE UPON THE PROSE-
CUTION AND FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE. THE CERTIF-
ICATE SHALL STATE THAT, AFTER EXERCISING DUE DILIGENCE AND MAKING
REASONABLE INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL AND INFORMA-
TION SUBJECT TO DISCOVERY, COUNSEL FOR THE DEFENDANT HAS DISCLOSED AND
MADE AVAILABLE ALL KNOWN MATERIAL AND INFORMATION SUBJECT TO DISCOVERY.
IT SHALL ALSO IDENTIFY THE ITEMS PROVIDED. IF ADDITIONAL DISCOVERY IS
SUBSEQUENTLY PROVIDED PRIOR TO TRIAL PURSUANT TO SECTION 245.75 OF THIS
ARTICLE, A SUPPLEMENTAL CERTIFICATE SHALL BE SERVED UPON THE PROSECUTION
AND FILED WITH THE COURT IDENTIFYING THE ADDITIONAL MATERIAL AND INFOR-
MATION PROVIDED. NO ADVERSE CONSEQUENCE TO THE DEFENDANT OR COUNSEL FOR
THE DEFENDANT SHALL RESULT FROM THE FILING OF A CERTIFICATE OF COMPLI-
S. 6847 13
ANCE IN GOOD FAITH; BUT THE COURT MAY GRANT A REMEDY FOR A DISCOVERY
VIOLATION AS PROVIDED IN SECTION 245.85 OF THIS ARTICLE.
§ 245.70 COURT ORDERED PROCEDURES TO FACILITATE COMPLIANCE.
TO FACILITATE COMPLIANCE WITH THIS ARTICLE, AND TO REDUCE OR STREAM-
LINE LITIGATION OF ANY DISPUTES ABOUT DISCOVERY, THE COURT IN ITS
DISCRETION MAY ISSUE AN ORDER:
1. REQUIRING THAT THE PROSECUTOR AND COUNSEL FOR THE DEFENDANT DILI-
GENTLY CONFER TO ATTEMPT TO REACH AN ACCOMMODATION AS TO ANY DISPUTE
CONCERNING DISCOVERY PRIOR TO SEEKING A RULING FROM THE COURT;
2. REQUIRING A DISCOVERY COMPLIANCE CONFERENCE AT A SPECIFIED TIME
PRIOR TO TRIAL BETWEEN THE PROSECUTOR, COUNSEL FOR ALL DEFENDANTS, AND
THE COURT OR ITS STAFF;
3. REQUIRING THE PROSECUTION TO FILE AN ADDITIONAL CERTIFICATE OF
COMPLIANCE THAT STATES THAT THE PROSECUTOR AND/OR AN APPROPRIATE NAMED
AGENT 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 FAVORABLE EVIDENCE OR INFORMATION WITHIN
PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.30 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 INFORMATION TO THE DEFENDANT; AND/OR
4. REQUIRING OTHER MEASURES OR PROCEEDINGS DESIGNED TO CARRY INTO
EFFECT THE GOALS OF THIS ARTICLE.
§ 245.75 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
SECTION 245.40 OF THIS ARTICLE.
§ 245.80 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.
§ 245.85 AVAILABILITY OF REMEDIES FOR VIOLATIONS.
1. NEED FOR REMEDY. (A) WHEN MATERIAL OR INFORMATION IS DISCOVERABLE
UNDER THIS ARTICLE BUT IS DISCLOSED BELATEDLY, THE COURT SHALL IMPOSE AN
APPROPRIATE REMEDY IF THE PARTY ENTITLED TO DISCLOSURE SHOWS THAT IT WAS
SIGNIFICANTLY PREJUDICED. IF THE UNTIMELY DISCLOSURE OCCURRED BECAUSE
THE PARTY RESPONSIBLE FAILED TO MAKE REASONABLY DILIGENT EFFORTS TO
COMPLY WITH THIS ARTICLE, THE COURT HAS DISCRETION TO IMPOSE AN APPRO-
PRIATE REMEDY IF THE PARTY ENTITLED TO DISCLOSURE SHOWS SOME PREJUDICE.
REGARDLESS OF A SHOWING OF PREJUDICE THE PARTY ENTITLED TO DISCLOSURE
SHALL BE GIVEN REASONABLE TIME TO PREPARE AND RESPOND TO THE NEW MATERI-
AL.
(B) WHEN MATERIAL OR INFORMATION IS DISCOVERABLE UNDER THIS ARTICLE
BUT CANNOT BE DISCLOSED BECAUSE IT HAS BEEN LOST OR DESTROYED, THE COURT
SHALL IMPOSE AN APPROPRIATE REMEDY IF THE PARTY ENTITLED TO DISCLOSURE
S. 6847 14
SHOWS THAT THE LOST OR DESTROYED MATERIAL MAY HAVE CONTAINED SOME INFOR-
MATION RELEVANT TO A CONTESTED ISSUE. THE APPROPRIATE REMEDY IS THAT
WHICH IS PROPORTIONATE TO THE POTENTIAL WAYS IN WHICH THE LOST OR
DESTROYED MATERIAL REASONABLY COULD HAVE BEEN HELPFUL TO THE PARTY ENTI-
TLED TO DISCLOSURE.
2. AVAILABLE REMEDIES. FOR FAILURE TO COMPLY WITH ANY DISCOVERY ORDER
IMPOSED OR ISSUED 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 PRECLUDING A DEFENSE WITNESS FROM TESTIFYING
SHALL BE PERMISSIBLE ONLY UPON A FINDING THAT THE DEFENDANT'S FAILURE TO
COMPLY WITH THE DISCOVERY OBLIGATION OR ORDER WAS WILLFUL AND MOTIVATED
BY A DESIRE TO OBTAIN A TACTICAL ADVANTAGE.
3. CONSEQUENCES OF NONDISCLOSURE OF STATEMENT OF TESTIFYING PROSE-
CUTION WITNESS. THE FAILURE OF THE PROSECUTOR OR ANY AGENT OF THE PROSE-
CUTOR TO DISCLOSE ANY WRITTEN OR RECORDED STATEMENT MADE BY A PROSE-
CUTION 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. Subdivision 1 of section 255.20 of the criminal procedure law, as
amended by chapter 369 of the laws of 1982, is amended to read as
follows:
1. Except as otherwise expressly provided by law, whether the defend-
ant is represented by counsel or elects to proceed pro se, all pre-trial
motions shall be served or filed within forty-five days after arraign-
ment and before commencement of trial, or within such additional time as
the court may fix upon application of the defendant made prior to entry
of judgment. In an action in which EITHER (A) MATERIAL OR INFORMATION
HAS BEEN DISCLOSED PURSUANT TO PARAGRAPHS (C) OR (H) OF SUBDIVISION TWO
OF SECTION 245.20, (B) an eavesdropping warrant and application have
been furnished pursuant to section 700.70 or (C) a notice of intention
to introduce evidence has been served pursuant to section 710.30, such
period shall be extended until forty-five days after the last date of
such service. If the defendant is not represented by counsel and has
requested an adjournment to obtain counsel or to have counsel assigned,
such forty-five day period shall commence on the date counsel initially
appears on defendant's behalf.
§ 4. Subdivision 8 of section 450.20 of the criminal procedure law is
amended to read as follows:
S. 6847 15
8. An order suppressing evidence, entered before trial pursuant to
section 710.20, OR AN ORDER PRECLUDING EVIDENCE, ENTERED BEFORE TRIAL
PURSUANT TO SECTION 710.30; provided that the people file a statement in
the appellate court pursuant to section 450.50.
§ 5. Section 450.50 of the criminal procedure law is amended to read
as follows:
§ 450.50 Appeal by people from order suppressing OR PRECLUDING evidence;
filing of statement in appellate court.
1. In taking an appeal, pursuant to subdivision eight of section
450.20, to an intermediate appellate court from an order of a criminal
court suppressing OR PRECLUDING evidence, the people must file, in addi-
tion to a notice of appeal or, as the case may be, an affidavit of
errors, a statement asserting that the deprivation of the use of the
evidence ordered suppressed OR PRECLUDED has rendered the sum of the
proof available to the people with respect to a criminal charge which
has been filed in the court either (a) insufficient as a matter of law,
or (b) so weak in its entirety that any reasonable possibility of prose-
cuting such charge to a conviction has been effectively destroyed.
2. The taking of an appeal by the people, pursuant to subdivision
eight of section 450.20, from an order suppressing OR PRECLUDING
evidence constitutes a bar to the prosecution of the accusatory instru-
ment involving the evidence ordered suppressed OR PRECLUDED, unless and
until such suppression OR PRECLUSION order is reversed upon appeal and
vacated.
§ 6. Subdivision 3 of section 610.20 of the criminal procedure law is
amended and a new subdivision 4 is added to read as follows:
3. An attorney for a defendant in a criminal action or proceeding, as
an officer of a criminal court, may issue a subpoena of such court,
subscribed by himself, for the attendance in such court of any witness
whom the defendant is entitled to call in such action or proceeding. An
attorney for a defendant may not issue a subpoena duces tecum of the
court directed to any department, bureau or agency of the state or of a
political subdivision thereof, or to any officer or representative ther-
eof, UNLESS THE SUBPOENA IS INDORSED BY THE COURT AND PROVIDES AT LEAST
THREE DAYS FOR THE PRODUCTION OF THE REQUESTED MATERIALS. IN THE CASE OF
AN EMERGENCY, THE COURT MAY BY ORDER DISPENSE WITH THE THREE-DAY
PRODUCTION PERIOD. [Such a subpoena duces tecum may be issued in behalf
of a defendant upon order of a court pursuant to the rules applicable to
civil cases as provided in section twenty-three hundred seven of the
civil practice law and rules.]
4. THE SHOWING REQUIRED TO SUSTAIN ANY SUBPOENA UNDER THIS SECTION IS
THAT THE TESTIMONY OR EVIDENCE SOUGHT IS REASONABLY LIKELY TO BE RELE-
VANT AND MATERIAL TO THE PROCEEDINGS, AND THE SUBPOENA IS NOT OVERBROAD
OR UNREASONABLY BURDENSOME.
§ 7. Section 710.30 of the criminal procedure law, as separately
amended by chapters 8 and 194 of the laws of 1976, subdivision 1 as
amended by section 6 of part VVV of chapter 59 of the laws of 2017, is
amended to read as follows:
§ 710.30 Motion to suppress evidence; notice to defendant of intention
to offer evidence.
1. Whenever the people intend to offer at a trial (a) evidence of a
statement made by a defendant to a public servant, which statement if
involuntarily made would render the evidence thereof suppressible upon
motion pursuant to subdivision three of section 710.20, or (b) testimony
regarding an observation of the defendant either at the time or place of
the commission of the offense or upon some other occasion relevant to
S. 6847 16
the case, to be given by a witness who has previously identified him or
her or a pictorial, photographic, electronic, filmed or video recorded
reproduction of him or her as such, OR (C) TANGIBLE OBJECTS OBTAINED
FROM THE DEFENDANT OR A PLACE OR ENTITY IN WHICH A COURT MAY RULE THAT
THE DEFENDANT HAD STANDING, they must serve upon the defendant a notice
of such intention, specifying the evidence intended to be offered. WHERE
NOTICE IS GIVEN UNDER SUBDIVISION TWO OF THIS SECTION, SUCH NOTICE SHALL
SPECIFY ALL IDENTIFICATION PROCEDURES IN WHICH THE WITNESS PARTICIPATED,
INCLUDING PHOTOGRAPHIC PROCEDURES, REGARDLESS OF WHETHER THE PARTICULAR
PROCEDURE WILL BE OFFERED AT TRIAL.
2. Such notice must be served within fifteen 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, to suppress the specified evidence. [For good cause
shown, however] WHERE THE PEOPLE ESTABLISH THAT THEY ACTED WITH DUE
DILIGENCE, the court may permit the people to serve such notice, there-
after and in such case it must accord the defendant reasonable opportu-
nity thereafter to make a suppression motion.
3. In the absence of service of notice upon a defendant as prescribed
in this section, no evidence of a kind specified in subdivision one may
be received against him upon trial unless he has, despite the lack of
such notice, moved to suppress such evidence and such motion has been
denied and the evidence thereby rendered admissible as prescribed in
subdivision two of section 710.70.
4. ON AN APPEAL FROM A JUDGMENT OF CONVICTION, A DEFENDANT WHO MOVED
TO SUPPRESS EVIDENCE AFTER HAVING UNSUCCESSFULLY SOUGHT PRECLUSION OF
SUCH EVIDENCE UNDER THIS SECTION MAY CHALLENGE BOTH THE DENIAL OF
PRECLUSION AND THE DENIAL OF SUPPRESSION.
§ 8. Section 215.11 of the penal law, as added by chapter 664 of the
laws of 1982, is amended to read as follows:
§ 215.11 Tampering with a witness in the third degree.
A person is guilty of tampering with a witness in the third degree
when, knowing that a person is about to be called as a witness in a
criminal proceeding:
1. He wrongfully compels or attempts to compel such person to absent
himself from, or otherwise to avoid or seek to avoid appearing or testi-
fying at such proceeding by means of instilling in him a fear that the
actor will cause physical injury to such person or another person; or
2. He wrongfully compels or attempts to compel such person to swear
falsely by means of instilling in him a fear that the actor will cause
physical injury to such person or another person.
Tampering with a witness in the third degree is a class [E] D felony.
§ 9. Section 215.12 of the penal law, as added by chapter 664 of the
laws of 1982, is amended to read as follows:
§ 215.12 Tampering with a witness in the second degree.
A person is guilty of tampering with a witness in the second degree
when he:
1. Intentionally causes physical injury to a person for the purpose of
obstructing, delaying, preventing or impeding the giving of testimony in
a criminal proceeding by such person or another person or for the
purpose of compelling such person or another person to swear falsely; or
2. He intentionally causes physical injury to a person on account of
such person or another person having testified in a criminal proceeding.
Tampering with a witness in the second degree is a class [D] C felony.
§ 10. Section 215.15 of the penal law, as added by chapter 667 of the
laws of 1985, is amended to read as follows:
S. 6847 17
§ 215.15 Intimidating a victim or witness in the third degree.
A person is guilty of intimidating a victim or witness in the third
degree when, knowing that another person possesses information relating
to a criminal transaction and other than in the course of that criminal
transaction or immediate flight therefrom, he:
1. Wrongfully compels or attempts to compel such other person to
refrain from communicating such information to any court, grand jury,
prosecutor, police officer or peace officer by means of instilling in
him a fear that the actor will cause physical injury to such other
person or another person; or
2. Intentionally damages the property of such other person or another
person for the purpose of compelling such other person or another person
to refrain from communicating, or on account of such other person or
another person having communicated, information relating to that crimi-
nal transaction to any court, grand jury, prosecutor, police officer or
peace officer.
Intimidating a victim or witness in the third degree is a class [E] D
felony.
§ 11. Section 215.16 of the penal law, as added by chapter 667 of the
laws of 1985, is amended to read as follows:
§ 215.16 Intimidating a victim or witness in the second degree.
A person is guilty of intimidating a victim or witness in the second
degree when, other than in the course of that criminal transaction or
immediate flight therefrom, he:
1. Intentionally causes physical injury to another person for the
purpose of obstructing, delaying, preventing or impeding the communi-
cation by such other person or another person of information relating to
a criminal transaction to any court, grand jury, prosecutor, police
officer or peace officer or for the purpose of compelling such other
person or another person to swear falsely; or
2. Intentionally causes physical injury to another person on account
of such other person or another person having communicated information
relating to a criminal transaction to any court, grand jury, prosecutor,
police officer or peace officer; or
3. Recklessly causes physical injury to another person by inten-
tionally damaging the property of such other person or another person,
for the purpose of obstructing, delaying, preventing or impeding such
other person or another person from communicating, or on account of such
other person or another person having communicated, information relating
to a criminal transaction to any court, grand jury, prosecutor, police
officer or peace officer.
Intimidating a victim or witness in the second degree is a class [D] C
felony.
§ 12. This act shall take effect immediately.
