S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6848
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              August 9, 2017
                                ___________
 
 Introduced  by Sens. AVELLA, HAMILTON -- read twice and ordered printed,
   and when printed to be committed to the Committee on Rules
 
 AN ACT to amend the  criminal  procedure  law  and  the  penal  law,  in
   relation  to  discovery,  pretrial  motions,  securing  attendance  of
   witnesses by subpoena, motion to suppress evidence, tampering  with  a
   witness  or  intimidating  a  victim  and to repeal article 240 of the
   criminal procedure law relating to discovery
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Article 240 of the criminal procedure law is REPEALED.
   § 2. The criminal procedure law is amended by adding a new article 245
 to read as follows:
                                ARTICLE 245
                                 DISCOVERY
 SECTION 245.10 AVAILABILITY OF PROTECTIVE ORDERS.
         245.20 PHASE ONE DISCOVERY OBLIGATION OF PROSECUTION.
         245.30 PHASE TWO DISCOVERY OBLIGATION OF PROSECUTION.
         245.40 RECIPROCAL DISCOVERY OBLIGATION OF THE DEFENDANT.
         245.45 DISCLOSURE OF PRIOR MISCONDUCT OR CRIMINAL ACTS.
         245.50 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
         245.55 COURT  ORDERS  FOR PRESERVATION, ACCESS, DISCOVERY OR DNA
                  COMPARISON.
         245.60 DILIGENT EFFORT TO ASCERTAIN EXISTENCE  OF  MATERIAL  AND
                  INFORMATION.
         245.65 CERTIFICATES OF COMPLIANCE.
         245.70 COURT ORDERED PROCEDURES TO FACILITATE COMPLIANCE.
         245.75 CONTINUING DUTY TO DISCLOSE.
         245.80 WORK PRODUCT.
         245.85 AVAILABILITY OF REMEDIES FOR VIOLATIONS.
         245.90 ADMISSIBILITY OF DISCOVERY.
 § 245.10 AVAILABILITY OF PROTECTIVE ORDERS.

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

 S                                                          LBD03867-01-7

 S. 6848                             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. 6848                             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. 6848                             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. 6848                             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. 6848                             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. 6848                             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. 6848                             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. 6848                             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. 6848                            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. 6848                            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. 6848                            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. 6848                            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. 6848                            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. 6848                            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, 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
 the  case, to be given by a witness who has previously identified him as

 S. 6848                            16
 
 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 PROCE-
 DURES  IN  WHICH THE WITNESS PARTICIPATED, INCLUDING PHOTOGRAPHIC PROCE-
 DURES, 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:
 § 215.15 Intimidating a victim or witness in the third degree.

 S. 6848                            17

   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.