NY State Senate Bill S8707

Archive: Last Bill Status - In Senate Committee Codes Committee

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In Committee
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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 10, 2018	referred to codes

S8707 (ACTIVE) - Details

See Assembly Version of this Bill:: A4360
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Rpld Art 240, add Art 245 §§245.10 - 245.85, amd §§610.20, 65.20, 200.95, 255.10, 255.20, 340.30, 400.27 & 440.30, CP L; amd §§450.10, 460.80 & 480.10, Pen L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A6907
2013-2014: A3667
2015-2016: A2924
2019-2020: S1716, A1431

S8707 (ACTIVE) - Summary

Establishes new criminal discovery rules; amends cross references.

S8707 (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S8707

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the criminal procedure law and the penal law, in
relation to establishing new criminal discovery rules; and to repeal
article 240 of the criminal procedure law relating thereto

 
PURPOSE:

To modernize and make New York State's criminal discovery rules fairer.
This bill calls for the repeal our current flawed discovery rules (Arti-
cle 240 of the Criminal Procedure Laws) and offers a better, comprehen-
sive statute; Article 245.This bill eliminates the unfairness and inef-
ficiencies of the present system and, if enacted, would facilitates
swift, efficient, and just disposition of criminal cases.

 
SUMMARY OF PROVISIONS:

*245.10. Timing of discovery

*245.20. Automatic discovery
*245.25. Disclosure prior to guilty plea deadline
*245.30. Court orders for preservation, access or discovery
*245.35. Court ordered procedures to facilitate compliance
*245.40. Non-testimonial evidence from the defendant
*245.45. DNA comparison order
*245.50. Certificates of compliance
*245.55. Flow of information
*245.60. Continuing duty to disclose
*245.65. Work product
*245.70. Protective orders
*245.75. Waiver of discovery by defendant
*245.80. Remedies or sanctions for noncompliance
*245.85. Admissibility of discovery

Sections 245.10(1)&(3), 245.50: The prosecution automatically provides
its discovery 15 days after arraignment, and then files a "Certificate
of Compliance." The defense automatically provides its reciprocal
discovery 30 days after the prosecution's completion of its discovery
obligations, and then files a "Certificate of Compliance." (These rules
dispense with the need for filing written discovery "demands" and
discovery motion practice, and both parties' disclosures occur earlier
than under current law.)

Section 245.70: Either party may withhold any discoverable item or
information when there is a basis to believe that a protective order
would be appropriate, and the court may issue any type of protective
order for good cause shown. (This rule is the same as under current
law.)

Section 245.20(1)(e): The prosecution timely discloses all relevant
written or recorded statements in its control that were made by persons
whom the prosecutor knows to have information relevant to any offense
charged or to a potential defense thereto. (This occurs earlier than
under current law, and is broader than under current law in particular
because it includes statements by potential defense witnesses.)


Sections 245.20(1) (a), (f), (g), (h): The prosecution timely discloses
all relevant police reports and law enforcement agency reports, police
paperwork, intended exhibits, tapes and other electronic recordings,
photographs, drawings, tangible objects, reports of scientific tests and
experiments,-reports of physical and mental examinations, defendants'
and co-defendants' statements, and expert opinion evidence. (This occurs
earlier than under current law, and is broader than under current law in
particular because it includes police reports.)

Sections 245.20(1)(c) & (d): The prosecution timely discloses the names
of and contact information for all persons whom the prosecutor knows to
have information relevant to any offense charged or to a potential.
defense thereto. (This information need not be disclosed under current
law.)

Section 245.20(1)(k): The prosecution timely discloses all information
which tends to negate the defendant's guilt or to mitigate the defend-
ant's culpability, or which tends to support a potential defense, or
which tends to support a motion to suppress on constitutional grounds,
or which would tend to reduce the punishment of the defendant. (This is
similar to the ethical requirement of Rule of Professional Conduct §
3.8. It occurs earlier than under current law, and is broader than under
current law insofar as it abandons the requirement that only "mate-
rially" exculpatory information need be disclosed.)

Section 245.25(2): The prosecution provides "material" discovery before
a guilty plea offer when a deadline has been placed on that offer. If
the prosecution does not comply with a proper request made pursuant to
this paragraph, the guilty plea offer shall be deemed available to the
defendant until seven calendar days after the prosecution has made the
disclosure or the court nay take other appropriate action as necessary
to address the non-compliance. (This is not an expressly stated power of
the court under current law.)

Sections 245.10(2), 245.20(4): The defense discloses the names of and
contact information for all witnesses whom it intends to call; all rele-
vant written and recorded statements in its control that were made by
those persons (other than the defendant); and intended exhibits, tapes
and other electronic recordings, photographs, drawings, tangible
objects, reports of scientific tests and experiments, reports of phys-
ical and mental examinations, and expert opinion evidence that it
intends to offer.(This reciprocal discovery occurs earlier than, and is
broader than, under current law.)

Section 245.30: The court has discretionary authority to order discovery
of items not otherwise covered by the statute, when an appropriate show-
ing is made. (This is not available under current law.)

 
JUSTIFICATION:

In BERGER V. UNITED STATES, 295 U.S. 78, 88 (1935), the United States
Supreme Court declared that the prosecutor must be a servant of the law,
both seeking to avoid wrongful convictions and using every legitimate
means, to bring about just ones. In recent years, far too many criminal
cases have exposed the government's failure, whether through negligence
or by design, to uphold our constitutional obligations to defendants.
This failure has been exacerbated, principally, by our woefully inade-
quate state discovery laws. Our rules and procedures. To assist in the
speedy resolution of criminal cases, to help the innocent from suffering
harm, and to ensure that the guilty (every person wrongly charged
enables a criminal to walk free) face certain justice, New York desper-
ately needs reform in this area. Fairer discovery will not impede law
enforcement from carry out its mission--it will assist them and will
prevent miscarriages of justice. Our current discovery rules were last
significantly revised in 1979. It's well past time for the reforms,
proposed in this bill, to be instituted. The time for change is now.

People litigating a civil claim in New York State, such as a debt or a
contract dispute, have the opportunity through discovery to learn what
they should know about the other side's case. So, too, do criminal
defendants in many other states, since their criminal discovery rules
allow broad, early, and automatic access to the prosecution's evidence.
But under New York's criminal discovery statute, defendants are denied
vitally important information, essential to make rational decisions
about. their pending cases. The limited information they receive is also
turned over so late that it is often impossible to intelligently inves-
tigate, to secure and use any potentially exculpatory evidence, to fair-
ly weigh a guilty plea offer, or to develop a trial strategy. Overhaul
of New York's criminal discovery rules will accomplish two key things:
it will help innocent or over-charged defendants fairly prepare for
trial, and it will encourage guilty defendants to plead guilty without
needless and costly delays.

Broad criminal discovery is in fact the mainstream approach. A leading
treatise identifies the following fourteen states as those that provide
criminal defendants with the least discovery in the nation:  "Alabama,
Georgia, Iowa, Kansas, Kentucky, Louisiana, New York, Rhode Island,
South Carolina; South Dakota, Tennessee, Texas, Virginia, and Wyoming."
In contrast, large states with big cities that ordinarily are considered
much more akin to New York - including California, Florida, Illinois,
Massachusetts, Michigan and New Jersey - have utilized broad criminal
discovery provisions for years. This bill will rectify this crucial
defect in New York State's criminal justice system. It is in this
context that this bill would repeal New York's criminal discovery stat-
ute, Criminal Procedure Law Article 240, and replace it with a new -
more efficient and more fair - discovery system. This comprehensive new
discovery statute, Article 245, draws on and supplements discovery rules
and practices from these other States.

Importantly, Article 245 is even-handed. It requires both the prose-
cution and the defendant to provide the opposing party with extensive
discovery early in the case. It eliminates unduly burdensome require-
ments of routine discovery paperwork. And it includes a mechanism for
prosecutors with legitimate concerns about the safety of their witnesses
or with on-going investigations to withhold or redact any evidence or
information covered by the statute and to move for a protective order.
These same mechanisms for discovery in criminal cases have been shown to
work successfully in states containing the big cities Los Angeles,
Chicago, Detroit, Philadelphia, Miami, San Diego and Newark. They have
not resulted in general problems of witness intimidation or impaired law
enforcement.  Instead, studies have shown that not only defense lawyers
but also prosecutors in these states strongly approve of such discovery
practices and consider them to be efficient and fair.

Implementing a system of automatic, early, and broad discovery in New
York State will be more effectively and coherently accomplished by
replacing Article 240's framework with this new, comprehensive and
internally consistent statute, which draws on the best features and
language of modern discovery provisions that have worked in other compa-
rable jurisdictions.

 
LEGISLATIVE HISTORY:

A.6907 of 2011-12;
A.3667 of 2013-14;
A.2924 of 2015-16;
A.4360 of 2017-18

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect 90 days after becoming law.

S8707 (ACTIVE) - Bill Text download pdf


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

                                  8707

                            I N  S E N A T E

                              May 10, 2018
                               ___________

Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the  criminal  procedure  law  and  the  penal  law,  in
  relation  to  establishing new criminal discovery rules; and to repeal
  article 240 of the criminal procedure law relating thereto

  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 TIMING OF DISCOVERY.
        245.20 AUTOMATIC DISCOVERY.
        245.25 DISCLOSURE PRIOR TO GUILTY PLEA DEADLINE.
        245.30 COURT ORDERS FOR PRESERVATION, ACCESS OR DISCOVERY.
        245.35 COURT ORDERED PROCEDURES TO FACILITATE COMPLIANCE.
        245.40 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
        245.45 DNA COMPARISON ORDER.
        245.50 CERTIFICATES OF COMPLIANCE.
        245.55 FLOW OF INFORMATION.
        245.60 CONTINUING DUTY TO DISCLOSE.
        245.65 WORK PRODUCT.
        245.70 PROTECTIVE ORDERS.
        245.75 WAIVER OF DISCOVERY BY DEFENDANT.
        245.80 REMEDIES OR SANCTIONS FOR NON-COMPLIANCE.
        245.85 ADMISSIBILITY OF DISCOVERY.
§ 245.10 TIMING OF DISCOVERY.
  1. PROSECUTION'S PERFORMANCE OF OBLIGATIONS. (A) THE PROSECUTION SHALL
PERFORM  ITS  INITIAL    DISCOVERY  OBLIGATIONS UNDER SUBDIVISION ONE OF
SECTION 245.20 OF THIS ARTICLE AS SOON AS   PRACTICABLE  BUT  NOT  LATER
THAN  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                      [ ] is old law to be omitted.
                                                           LBD03711-04-8

S. 8707                             2

NON-DISCOVERABLE  MAY  BE WITHHELD PENDING A DETERMINATION AND RULING OF
THE COURT UNDER SECTION 245.70 OF THIS ARTICLE; BUT THE DEFENDANT  SHALL
BE  NOTIFIED  IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A
PARTICULAR SUBDIVISION OF SUCH SECTION, AND THE DISCOVERABLE PORTIONS OF
SUCH  MATERIALS SHALL BE DISCLOSED IF PRACTICABLE. WHEN THE DISCOVERABLE
MATERIALS ARE EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD  IN  THIS  PARA-
GRAPH  MAY BE STAYED BY UP TO AN ADDITIONAL THIRTY CALENDAR DAYS WITHOUT
NEED FOR A MOTION PURSUANT TO  SUBDIVISION TWO OF SECTION 245.70 OF THIS
ARTICLE.
  (B) THE PROSECUTION SHALL PERFORM  ITS  SUPPLEMENTAL  DISCOVERY  OBLI-
GATIONS  UNDER  SUBDIVISION  THREE  OF SECTION 245.20 OF THIS ARTICLE AS
SOON AS PRACTICABLE BUT NOT LATER  THAN  FIFTEEN  CALENDAR  DAYS  BEFORE
TRIAL.
  (C)  UPON TIMELY DEFENSE REQUEST, THE PROSECUTION SHALL DISCLOSE MATE-
RIALS UNDER PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 245.20  OF  THIS
ARTICLE  TO  ANY  DEFENDANT  WHO  HAS BEEN ARRAIGNED IN A LOCAL CRIMINAL
COURT UPON A  CURRENTLY  UNDISPOSED  OF  FELONY  COMPLAINT  CHARGING  AN
OFFENSE  WHICH  IS  A  SUBJECT  OF  A  PROSPECTIVE OR PENDING GRAND JURY
PROCEEDING, NO LATER THAN FORTY-EIGHT HOURS BEFORE  THE  TIME  SCHEDULED
FOR  THE  DEFENDANT  TO  TESTIFY  AT A GRAND JURY PROCEEDING PURSUANT TO
SUBDIVISION FIVE OF SECTION 190.50 OF THIS PART.
  2. DEFENDANT'S PERFORMANCE OF OBLIGATIONS. THE DEFENDANT SHALL PERFORM
HIS OR HER DISCOVERY  OBLIGATIONS  UNDER  SUBDIVISION  FOUR  OF  SECTION
245.20  OF  THIS ARTICLE NOT LATER THAN THIRTY CALENDAR DAYS AFTER BEING
SERVED WITH THE PROSECUTION'S  CERTIFICATE  OF  COMPLIANCE  PURSUANT  TO
SUBDIVISION  ONE OF SECTION 245.50 OF THIS ARTICLE, EXCEPT THAT PORTIONS
OF MATERIALS CLAIMED TO BE NON-DISCOVERABLE MAY BE  WITHHELD  PENDING  A
DETERMINATION AND RULING OF THE COURT UNDER SECTION 245.70 OF THIS ARTI-
CLE;  BUT  THE  PROSECUTION MUST BE NOTIFIED IN WRITING THAT INFORMATION
HAS NOT BEEN DISCLOSED UNDER A PARTICULAR SECTION.
§ 245.20 AUTOMATIC DISCOVERY.
  1. INITIAL DISCOVERY FOR THE DEFENDANT. THE PROSECUTION SHALL DISCLOSE
TO THE DEFENDANT, AND PERMIT THE DEFENDANT TO DISCOVER, INSPECT, COPY OR
PHOTOGRAPH, EACH OF THE FOLLOWING ITEMS AND INFORMATION WHEN IT  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 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.
  (B) 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 SECTION 245.10 OF THIS ARTICLE,  SUCH  TIME  PERIOD  MAY  BE
STAYED  BY  UP  TO AN ADDITIONAL THIRTY CALENDAR DAYS WITHOUT NEED FOR A
MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.70  OF  THIS  ARTICLE;
EXCEPT THAT SUCH 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 245.70 OF  THIS  ARTICLE.  WHEN
THE COURT IS  REQUIRED TO REVIEW GRAND JURY TRANSCRIPTS, THE PROSECUTION
SHALL  DISCLOSE SUCH TRANSCRIPTS TO THE COURT EXPEDITIOUSLY UPON RECEIPT

S. 8707                             3

BY THE PROSECUTOR, NOTWITHSTANDING THE OTHERWISE-APPLICABLE TIME PERIODS
FOR DISCLOSURE IN THIS ARTICLE.
  (C) 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 SUBDIVISION RELATING TO A CONFIDENTIAL  INFORMANT
MAY BE WITHHELD, AND REDACTED FROM DISCOVERY MATERIALS, WITHOUT NEED FOR
A  MOTION  PURSUANT TO SECTION 245.70 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.
  (D)  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, INCLUDING A
DESIGNATION BY THE PROSECUTOR AS TO WHICH OF THOSE PERSONS MAY BE CALLED
AS  WITNESSES. INFORMATION UNDER THIS SUBDIVISION RELATING TO UNDERCOVER
PERSONNEL MAY BE WITHHELD, AND REDACTED FROM DISCOVERY MATERIALS,  WITH-
OUT  NEED  FOR  A MOTION PURSUANT TO SECTION 245.70 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) 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 ALL
POLICE REPORTS AND LAW ENFORCEMENT AGENCY REPORTS.  THIS PROVISION  ALSO
INCLUDES STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING OR
RECORDING, BY PERSONS TO BE CALLED AS WITNESSES AT PRE-TRIAL HEARINGS.
  (F)  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 DILI-
GENCE THIS INFORMATION IS UNAVAILABLE FOR  DISCLOSURE  WITHIN  THE  TIME
PERIOD  SPECIFIED  IN SUBDIVISION ONE OF SECTION 245.10 OF THIS ARTICLE,
THAT PERIOD   SHALL BE STAYED WITHOUT NEED  FOR  A  MOTION  PURSUANT  TO
SUBDIVISION  TWO  OF  SECTION  245.70 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 245.70  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.
  (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.

S. 8707                             4

  (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, DOCUMENTS, DATA, CALCULATIONS OR WRITINGS, INCLUDING
BUT NOT LIMITED TO   PRELIMINARY TESTS OR SCREENING  RESULTS  AND  BENCH
NOTES,  CONCERNING PHYSICAL OR MENTAL  EXAMINATIONS, OR SCIENTIFIC TESTS
OR EXPERIMENTS OR COMPARISONS, AND  ANALYSES  PERFORMED  ELECTRONICALLY,
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  PROSE-
CUTION INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING.
  (K)  ALL  EVIDENCE  AND  INFORMATION, INCLUDING THAT WHICH IS KNOWN TO
POLICE OR OTHER LAW ENFORCEMENT  AGENCIES  ACTING  ON  THE  GOVERNMENT'S
BEHALF  IN  THE CASE, THAT TENDS TO: (I) NEGATE THE DEFENDANT'S GUILT AS
TO A CHARGED OFFENSE; (II) REDUCE THE DEGREE OF OR MITIGATE THE  DEFEND-
ANT'S    CULPABILITY  AS TO A CHARGED OFFENSE; (III) SUPPORT A POTENTIAL
DEFENSE TO A CHARGED OFFENSE; (IV)  IMPEACH THE CREDIBILITY OF A  TESTI-
FYING  PROSECUTION  WITNESS;  (V)  UNDERMINE EVIDENCE OF THE DEFENDANT'S
IDENTITY AS A PERPETRATOR OF A CHARGED OFFENSE; (VI) PROVIDE A BASIS FOR
A MOTION TO  SUPPRESS EVIDENCE; OR (VII) MITIGATE  PUNISHMENT.  INFORMA-
TION  UNDER  THIS  SUBDIVISION  SHALL  BE  DISCLOSED WHETHER OR NOT SUCH
INFORMATION IS RECORDED IN TANGIBLE FORM AND IRRESPECTIVE OF WHETHER THE
PROSECUTOR CREDITS THE INFORMATION. THE PROSECUTOR  SHALL  DISCLOSE  THE
INFORMATION  EXPEDITIOUSLY  UPON ITS RECEIPT AND SHALL NOT DELAY DISCLO-
SURE IF IT IS OBTAINED EARLIER THAN THE TIME PERIOD  FOR  DISCLOSURE  IN
SUBDIVISION ONE OF SECTION 245.10 OF THIS ARTICLE.
  (L)  A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE TO, OR IN
FAVOR OF, 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.
  (M) 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  SUCH
INTENTION  AS TO EACH SUCH OBJECT. IF REASONABLY PRACTICABLE, THE PROSE-
CUTION SHALL ALSO DESIGNATE THE LOCATION FROM WHICH EACH TANGIBLE OBJECT
WAS RECOVERED.  THERE IS ALSO A RIGHT TO INSPECT OR COPY  OR  PHOTOGRAPH
THE LISTED TANGIBLE OBJECTS.
  (N)  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.
  (O) ALL TANGIBLE PROPERTY THAT THE PROSECUTION INTENDS TO INTRODUCE IN
ITS CASE-IN-CHIEF AT TRIAL OR A PRE-TRIAL HEARING. IF IN THE EXERCISE OF
REASONABLE  DILIGENCE  THE PROSECUTOR HAS NOT FORMED AN INTENTION WITHIN
THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 245.10  OF  THIS
ARTICLE  THAT AN ITEM UNDER THIS SUBDIVISION WILL BE INTRODUCED AT TRIAL
OR A PRE-TRIAL HEARING, SUCH TIME PERIOD SHALL BE  STAYED  WITHOUT  NEED
FOR A MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.70 OF THIS ARTI-

S. 8707                             5

CLE; BUT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE AND SUBJECT
TO THE CONTINUING DUTY TO DISCLOSE IN SECTION 245.60 OF THIS ARTICLE.
  (P)  THE  RESULTS  OF  COMPLETE CRIMINAL HISTORY RECORD CHECKS FOR ALL
DEFENDANTS AND ALL PERSONS DESIGNATED AS POTENTIAL PROSECUTION WITNESSES
PURSUANT  TO  PARAGRAPH  (C)  OF  THIS  SUBDIVISION,  OTHER  THAN  THOSE
WITNESSES WHO ARE EXPERTS.
  (Q)  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 (C) OF THIS SUBDIVISION.
  (R)  THE  APPROXIMATE  DATE, TIME AND PLACE OF THE OFFENSE OR OFFENSES
CHARGED AND OF THE DEFENDANT'S SEIZURE AND ARREST.
  (S) 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.
  (T) IN ANY PROSECUTION ALLEGING  A  VIOLATION  OF  SECTION  156.05  OR
156.10  OF  THE  PENAL  LAW,  THE  TIME, PLACE AND MANNER SUCH VIOLATION
OCCURRED.
  2. DISCOVERY BY THE PROSECUTION.  THE PROSECUTOR SHALL  MAKE  A  DILI-
GENT, GOOD FAITH EFFORT TO ASCERTAIN THE EXISTENCE OF MATERIAL OR INFOR-
MATION  DISCOVERABLE  UNDER SUBDIVISION ONE OF THIS SECTION AND TO CAUSE
SUCH  MATERIAL OR INFORMATION TO BE MADE AVAILABLE FOR  DISCOVERY  WHERE
IT  EXISTS  BUT  IS  NOT  WITHIN THE PROSECUTOR'S POSSESSION, CUSTODY OR
CONTROL; PROVIDED THAT THE PROSECUTOR SHALL NOT BE REQUIRED TO OBTAIN BY
SUBPOENA DUCES TECUM MATERIAL 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 (C) OR (E) OF SUBDIVISION ONE OF THIS SECTION.
  3.  SUPPLEMENTAL  DISCOVERY  FOR  THE DEFENDANT. THE PROSECUTION SHALL
DISCLOSE TO THE DEFENDANT A LIST OF ALL MISCONDUCT AND CRIMINAL ACTS  OF
THE DEFENDANT NOT CHARGED IN THE INDICTMENT, SUPERIOR COURT INFORMATION,
PROSECUTOR'S  INFORMATION, INFORMATION, OR SIMPLIFIED INFORMATION, 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. IN ADDITION THE PROSECUTION SHALL  DESIGNATE
WHETHER  IT  INTENDS  TO  USE  EACH LISTED ACT FOR IMPEACHMENT AND/OR AS
SUBSTANTIVE PROOF.
  4. RECIPROCAL DISCOVERY FOR THE PROSECUTION. (A) THE DEFENDANT  SHALL,
SUBJECT  TO CONSTITUTIONAL LIMITATIONS, DISCLOSE TO THE PROSECUTION, AND
PERMIT THE PROSECUTION TO DISCOVER, INSPECT,  COPY  OR  PHOTOGRAPH,  ANY
MATERIAL AND RELEVANT EVIDENCE WITHIN THE DEFENDANT'S OR COUNSEL FOR THE
DEFENDANT'S  POSSESSION OR CONTROL THAT IS DISCOVERABLE UNDER PARAGRAPHS
(F), (G), (H), (J), (1) AND (O) OF  SUBDIVISION  ONE  OF  THIS  SECTION,
WHICH  THE  DEFENDANT INTENDS TO OFFER AT TRIAL  OR A PRE-TRIAL HEARING,
AND THE NAMES, ADDRESSES, BIRTH DATES, AND ALL  STATEMENTS,  WRITTEN  OR
RECORDED  OR  SUMMARIZED  IN  ANY WRITING OR RECORDING, OF THOSE PERSONS
OTHER THAN THE DEFENDANT WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES
AT TRIAL OR A PRE-TRIAL HEARING.
  (B) DISCLOSURE OF THE NAME, ADDRESS, BIRTH DATE, AND  ALL  STATEMENTS,
WRITTEN  OR  RECORDED  OR  SUMMARIZED  IN ANY WRITING OR RECORDING, OF A
PERSON WHOM THE DEFENDANT INTENDS TO CALL AS  A  WITNESS  FOR  THE  SOLE

S. 8707                             6

PURPOSE  OF IMPEACHING A PROSECUTION WITNESS IS NOT REQUIRED UNTIL AFTER
THE PROSECUTION WITNESS HAS TESTIFIED AT TRIAL.
  (C)  IF  IN  THE  EXERCISE  OF  REASONABLE  DILIGENCE THE RECIPROCALLY
DISCOVERABLE INFORMATION  UNDER PARAGRAPH (F) OR (O) OF SUBDIVISION  ONE
OF  THIS  SECTION  IS UNAVAILABLE FOR DISCLOSURE WITHIN  THE TIME PERIOD
SPECIFIED IN SUBDIVISION TWO OF SECTION 245.10  OF  THIS  ARTICLE,  SUCH
TIME PERIOD SHALL BE STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SUBDI-
VISION  TWO OF SECTION 245.70 OF THIS  ARTICLE; BUT THE DISCLOSURE SHALL
BE MADE AS SOON AS PRACTICABLE AND SUBJECT TO  THE  CONTINUING  DUTY  TO
DISCLOSE IN SECTION 245.60 OF THIS ARTICLE.
  5. STAY OF AUTOMATIC DISCOVERY; REMEDIES AND SANCTIONS. SECTION 245.10
AND  SUBDIVISIONS    ONE, TWO, THREE AND FOUR OF THIS SECTION SHALL HAVE
THE FORCE AND EFFECT OF A COURT ORDER, AND FAILURE TO PROVIDE  DISCOVERY
PURSUANT TO SUCH SECTION OR SUBDIVISION MAY RESULT IN APPLICATION OF ANY
REMEDIES  OR  SANCTIONS  PERMITTED FOR NON-COMPLIANCE WITH A COURT ORDER
UNDER SECTION 245.80 OF THIS ARTICLE. HOWEVER, IF  IN  THE  JUDGMENT  OF
EITHER  PARTY GOOD CAUSE EXISTS FOR DECLINING TO MAKE ANY OF THE DISCLO-
SURES SET FORTH ABOVE, SUCH PARTY MAY MOVE FOR A PROTECTIVE ORDER PURSU-
ANT TO SECTION 245.70 OF THIS ARTICLE AND PRODUCTION OF THE  ITEM  SHALL
BE  STAYED  PENDING  A  RULING BY THE COURT. THE OPPOSING PARTY SHALL BE
NOTIFIED IN WRITING THAT INFORMATION HAS NOT   BEEN  DISCLOSED  UNDER  A
PARTICULAR  SECTION.  WHEN  SOME  PARTS  OF  MATERIAL OR INFORMATION ARE
DISCOVERABLE BUT IN THE JUDGMENT  OF  A  PARTY  GOOD  CAUSE  EXISTS  FOR
DECLINING  TO  DISCLOSE  OTHER  PARTS,  THE  DISCOVERABLE PARTS SHALL BE
DISCLOSED AND THE DISCLOSING PARTY SHALL GIVE NOTICE IN    WRITING  THAT
NON-DISCOVERABLE PARTS HAVE BEEN WITHHELD.
  6.  REDACTIONS  PERMITTED.  EITHER  PARTY  MAY  REDACT SOCIAL SECURITY
NUMBERS AND TAX NUMBERS FROM DISCLOSURES UNDER THIS ARTICLE.
§ 245.25 DISCLOSURE PRIOR TO GUILTY PLEA DEADLINE.
  1. PRE-INDICTMENT GUILTY PLEAS. UPON A  FELONY  COMPLAINT,  WHERE  THE
PROSECUTION HAS MADE A PRE-INDICTMENT GUILTY PLEA OFFER REQUIRING A PLEA
TO  A CRIME, THE DEFENDANT SHALL HAVE THE RIGHT  UPON TIMELY REQUEST AND
REASONABLE NOTICE TO THE PROSECUTION TO INSPECT ANY AVAILABLE POLICE  OR
OTHER  LAW  ENFORCEMENT  AGENCY REPORT OF A FACTUAL NATURE REGARDING THE
ARREST OR INVESTIGATION OF THE CHARGES, AND/OR ANY DESIGNATED AND AVAIL-
ABLE ITEMS OR INFORMATION THAT COULD BE OF MATERIAL   IMPORTANCE TO  THE
DECISION  ON  THE  GUILTY  PLEA OFFER AND WOULD BE DISCOVERABLE PRIOR TO
TRIAL UNDER SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE. THE PROS-
ECUTION SHALL DISCLOSE THE REQUESTED AND  DESIGNATED ITEMS  OR  INFORMA-
TION,  AS  WELL AS ANY KNOWN INFORMATION THAT TENDS TO BE EXCULPATORY OR
TO SUPPORT A DEFENSE TO A CHARGED OFFENSE, NOT LESS THAN THREE  CALENDAR
DAYS PRIOR TO THE EXPIRATION DATE OF ANY GUILTY PLEA OFFER BY THE PROSE-
CUTION  OR ANY DEADLINE IMPOSED BY THE COURT FOR ACCEPTANCE OF A NEGOTI-
ATED GUILTY PLEA OFFER.  IF THE PROSECUTION DOES NOT COMPLY WITH A PROP-
ER REQUEST MADE PURSUANT TO  THIS    SUBDIVISION,  THE  COURT  MAY  TAKE
APPROPRIATE ACTION AS NECESSARY TO ADDRESS THE NON-COMPLIANCE, INCLUDING
ALLOWING A GUILTY PLEA TO THE ORIGINAL GUILTY PLEA OFFER NOTWITHSTANDING
OTHER  PROVISIONS    OF  THIS  CHAPTER. THE INSPECTION RIGHTS UNDER THIS
SUBDIVISION DO NOT APPLY TO ITEMS OR INFORMATION THAT ARE THE SUBJECT OF
A PROTECTIVE ORDER UNDER SECTION 245.70 OF THIS  ARTICLE;  BUT  IF  SUCH
INFORMATION  TENDS  TO  BE  EXCULPATORY,  THE COURT SHALL RECONSIDER THE
PROTECTIVE ORDER. THE COURT MAY DENY  AN  INSPECTION  RIGHT  UNDER  THIS
SUBDIVISION  WHEN  A REASONABLE PERSON IN THE DEFENDANT'S POSITION WOULD
NOT CONSIDER THE REQUESTED AND DESIGNATED ITEM OR INFORMATION TO  BE  OF
MATERIAL  IMPORTANCE TO THE DECISION ON THE GUILTY PLEA OFFER. A DEFEND-

S. 8707                             7

ANT MAY WAIVE HIS OR HER RIGHTS UNDER THIS  SUBDIVISION;  BUT  A  GUILTY
PLEA OFFER MAY NOT BE CONDITIONED ON SUCH WAIVER.
  2. OTHER GUILTY PLEAS. UPON AN INDICTMENT, SUPERIOR COURT INFORMATION,
PROSECUTOR'S    INFORMATION,  INFORMATION,  SIMPLIFIED  INFORMATION,  OR
MISDEMEANOR COMPLAINT, WHERE THE PROSECUTION  HAS  MADE  A  GUILTY  PLEA
OFFER  REQUIRING  A  PLEA TO A CRIME, THE DEFENDANT SHALL HAVE THE RIGHT
UPON TIMELY REQUEST AND REASONABLE NOTICE TO THE PROSECUTION TO  INSPECT
ANY AVAILABLE POLICE OR OTHER LAW ENFORCEMENT AGENCY REPORT OF A FACTUAL
NATURE  REGARDING THE ARREST OR INVESTIGATION OF THE CHARGES, AND/OR ANY
DESIGNATED AND AVAILABLE ITEMS OR INFORMATION THAT COULD BE OF  MATERIAL
IMPORTANCE TO THE DECISION ON THE GUILTY PLEA OFFER AND WOULD BE DISCOV-
ERABLE  PRIOR  TO  TRIAL UNDER SUBDIVISION ONE OF SECTION 245.20 OF THIS
ARTICLE. THE PROSECUTION SHALL DISCLOSE  THE  REQUESTED  AND  DESIGNATED
ITEMS  OR INFORMATION, AS WELL AS ANY KNOWN INFORMATION THAT TENDS TO BE
EXCULPATORY OR TO SUPPORT A DEFENSE TO A CHARGED OFFENSE, NOT LESS  THAN
SEVEN  CALENDAR  DAYS  PRIOR  TO  THE EXPIRATION DATE OF ANY GUILTY PLEA
OFFER BY THE PROSECUTION OR ANY DEADLINE IMPOSED  BY  THE  COURT  FOR  A
GUILTY  PLEA.  IF  THE PROSECUTION DOES NOT COMPLY WITH A PROPER REQUEST
MADE PURSUANT TO THIS SUBDIVISION, THE GUILTY PLEA OFFER MAY  BE  DEEMED
AVAILABLE  TO  THE  DEFENDANT UNTIL SEVEN CALENDAR DAYS AFTER THE PROSE-
CUTION HAS MADE THE DISCLOSURE OR THE COURT MAY TAKE  OTHER  APPROPRIATE
ACTION AS NECESSARY TO ADDRESS THE NON-COMPLIANCE. THE INSPECTION RIGHTS
UNDER THIS SUBDIVISION DO NOT APPLY TO ITEMS OR INFORMATION THAT ARE THE
SUBJECT  OF A PROTECTIVE ORDER UNDER SECTION 245.70 OF THIS ARTICLE; BUT
IF SUCH INFORMATION TENDS TO BE EXCULPATORY, THE COURT SHALL  RECONSIDER
THE  PROTECTIVE ORDER. THE COURT MAY DENY AN INSPECTION RIGHT UNDER THIS
SUBDIVISION  WHEN  A REASONABLE PERSON IN THE DEFENDANT'S POSITION WOULD
NOT CONSIDER THE REQUESTED AND DESIGNATED ITEM OR INFORMATION TO  BE  OF
MATERIAL  IMPORTANCE TO THE DECISION ON THE GUILTY PLEA OFFER. A DEFEND-
ANT MAY WAIVE HIS OR HER RIGHTS UNDER THIS  SUBDIVISION,  BUT  A  GUILTY
PLEA OFFER MAY NOT BE CONDITIONED ON SUCH WAIVER.
§ 245.30 COURT ORDERS FOR PRESERVATION, ACCESS OR DISCOVERY.
  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
SIGNIFICANT 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 SUCH CRIME SCENE OR  PREM-
ISES,  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 PREM-
ISES WILL CREATE SIGNIFICANT HARDSHIP, ON CONDITION THAT THE   PROBATIVE
VALUE OF SUCH 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

S. 8707                             8

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.
§ 245.35 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  (K)  OF  SUBDIVISION  ONE  OF SECTION 245.20 OF THIS ARTICLE,
INCLUDING SUCH EVIDENCE OR INFORMATION THAT WAS NOT REDUCED  TO  WRITING
OR  OTHERWISE  MEMORIALIZED  OR PRESERVED AS EVIDENCE, AND HAS DISCLOSED
ANY SUCH  INFORMATION TO THE DEFENDANT; AND/OR
  4. REQUIRING OTHER MEASURES OR  PROCEEDINGS  DESIGNED  TO  CARRY  INTO
EFFECT THE GOALS OF THIS ARTICLE.
§ 245.40 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
  1.  AVAILABILITY.  AFTER  THE  FILING OF AN ACCUSATORY INSTRUMENT, AND
SUBJECT TO CONSTITUTIONAL  LIMITATIONS, THE COURT MAY,  UPON  MOTION  OF
THE  PROSECUTION  SHOWING  PROBABLE  CAUSE  TO BELIEVE THE DEFENDANT HAS
COMMITTED THE CRIME, A CLEAR INDICATION THAT RELEVANT MATERIAL  EVIDENCE
WILL  BE FOUND, AND THAT THE METHOD USED TO SECURE SUCH EVIDENCE 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

S. 8707                             9

SUCH RIGHTS AS THE DEFENDANT MAY DERIVE FROM THE STATE  CONSTITUTION  OR
THE  UNITED  STATES CONSTITUTION. THIS SECTION SHALL NOT BE CONSTRUED TO
ALTER OR IN ANY WAY AFFECT THE ADMINISTRATION OF A CHEMICAL  TEST  WHERE
OTHERWISE  AUTHORIZED. AN ORDER PURSUANT TO THIS SECTION  MAY BE DENIED,
LIMITED OR CONDITIONED AS PROVIDED IN SECTION 245.70 OF THIS ARTICLE.
§ 245.45 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  INVESTI-
GATION OF THE CRIME, OR THE DEFENDANT, OR THE PROSECUTION OF THE DEFEND-
ANT,  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 AGEN-
CIES  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  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  REASONABLE.    FOR  PURPOSES  OF  THIS  SECTION,  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.
§ 245.50 CERTIFICATES OF COMPLIANCE.
  1. BY THE PROSECUTION. WHEN THE PROSECUTION HAS PROVIDED THE DISCOVERY
REQUIRED  BY  SUBDIVISION  ONE OF SECTION 245.20 OF THIS ARTICLE, EXCEPT
FOR ANY ITEMS OR INFORMATION THAT ARE THE SUBJECT OF AN  ORDER  PURSUANT
TO SECTION 245.70 OF THIS ARTICLE, IT SHALL SERVE UPON THE DEFENDANT AND
FILE  WITH  THE  COURT  A  CERTIFICATE OF COMPLIANCE. THE CERTIFICATE OF
COMPLIANCE SHALL STATE THAT, AFTER EXERCISING DUE DILIGENCE  AND  MAKING
REASONABLE  INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL  AND INFOR-
MATION 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 245.60 OF THIS
ARTICLE, A SUPPLEMENTAL CERTIFICATE SHALL BE SERVED UPON  THE  DEFENDANT
AND FILED WITH THE COURT  IDENTIFYING THE ADDITIONAL MATERIAL AND INFOR-
MATION PROVIDED. NO ADVERSE CONSEQUENCE TO THE PROSECUTION OR THE PROSE-
CUTOR  SHALL  RESULT  FROM  THE FILING OF A CERTIFICATE OF COMPLIANCE IN
GOOD  FAITH; BUT THE COURT MAY GRANT A REMEDY OR SANCTION FOR A  DISCOV-
ERY VIOLATION AS PROVIDED IN SECTION 245.80 OF THIS ARTICLE.
  2.  BY  THE  DEFENDANT.  WHEN THE DEFENDANT HAS PROVIDED ALL DISCOVERY
REQUIRED BY SUBDIVISION FOUR OF SECTION 245.20 OF THIS  ARTICLE,  EXCEPT
FOR  ANY  ITEMS OR INFORMATION THAT ARE THE SUBJECT OF AN ORDER PURSUANT
TO SECTION 245.70 OF THIS ARTICLE, COUNSEL FOR THE DEFENDANT SHALL SERVE
UPON THE PROSECUTION AND FILE WITH THE COURT A  CERTIFICATE  OF  COMPLI-
ANCE.   THE CERTIFICATE SHALL STATE THAT, AFTER EXERCISING DUE DILIGENCE
AND MAKING REASONABLE INQUIRIES TO ASCERTAIN THE EXISTENCE  OF  MATERIAL
AND  INFORMATION  SUBJECT  TO  DISCOVERY,  COUNSEL FOR THE DEFENDANT HAS
DISCLOSED AND MADE AVAILABLE ALL KNOWN MATERIAL AND INFORMATION  SUBJECT

S. 8707                            10

TO  DISCOVERY.  IT SHALL ALSO IDENTIFY THE ITEMS PROVIDED. IF ADDITIONAL
DISCOVERY IS SUBSEQUENTLY PROVIDED PRIOR TO TRIAL  PURSUANT  TO  SECTION
245.60  OF THIS ARTICLE, A SUPPLEMENTAL CERTIFICATE SHALL BE SERVED UPON
THE  PROSECUTION  AND  FILED   WITH THE COURT IDENTIFYING THE ADDITIONAL
MATERIAL AND INFORMATION  PROVIDED.  NO  ADVERSE    CONSEQUENCE  TO  THE
DEFENDANT OR COUNSEL FOR THE DEFENDANT SHALL RESULT FROM THE FILING OF A
CERTIFICATE OF COMPLIANCE IN GOOD FAITH; BUT THE COURT MAY GRANT A REME-
DY  OR  SANCTION FOR A DISCOVERY VIOLATION AS PROVIDED IN SECTION 245.80
OF THIS ARTICLE.
§ 245.55 FLOW OF INFORMATION.
  1. SUFFICIENT COMMUNICATION FOR COMPLIANCE. THE DISTRICT ATTORNEY  AND
THE  ASSISTANT  RESPONSIBLE FOR THE CASE, OR, IF THE MATTER IS NOT BEING
PROSECUTED BY THE DISTRICT ATTORNEY,  THE  PROSECUTING  AGENCY  AND  ITS
ASSIGNED  REPRESENTATIVE, SHALL ENDEAVOR TO ENSURE THAT A FLOW OF INFOR-
MATION IS MAINTAINED BETWEEN THE POLICE AND OTHER INVESTIGATIVE  PERSON-
NEL  AND  HIS  OR  HER  OFFICE  SUFFICIENT  TO  PLACE  WITHIN HIS OR HER
POSSESSION OR CONTROL ALL MATERIAL  AND  INFORMATION  PERTINENT  TO  THE
DEFENDANT AND THE OFFENSE OR OFFENSES CHARGED, INCLUDING, BUT NOT LIMIT-
ED  TO,  ANY EVIDENCE OR INFORMATION DISCOVERABLE UNDER PARAGRAPH (K) OF
SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE.
  2. PROVISION OF LAW ENFORCEMENT AGENCY FILES. ABSENT A COURT ORDER  OR
CLEAR  SECURITY REQUIREMENT, UPON REQUEST BY THE PROSECUTION, A NEW YORK
STATE LAW ENFORCEMENT AGENCY SHALL MAKE AVAILABLE TO THE  PROSECUTION  A
COMPLETE  COPY OF ITS COMPLETE FILES RELATED TO THE INVESTIGATION OF THE
CASE OR THE PROSECUTION OF THE DEFENDANT FOR COMPLIANCE WITH THIS  ARTI-
CLE.
  3.  911  TELEPHONE  CALL  AND  POLICE  RADIO  TRANSMISSION  ELECTRONIC
RECORDINGS,  POLICE  WORN  BODY  CAMERA  RECORDINGS  AND  OTHER   POLICE
RECORDINGS.    (A)  WHENEVER  AN ELECTRONIC RECORDING OF A 911 TELEPHONE
CALL OR A POLICE RADIO TRANSMISSION OR VIDEO OR  AUDIO  FOOTAGE  FROM  A
POLICE  BODY-WORN  CAMERA OR OTHER POLICE RECORDING WAS MADE OR RECEIVED
IN  CONNECTION WITH THE INVESTIGATION OF AN APPARENT CRIMINAL  INCIDENT,
THE  ARRESTING OFFICER OR LEAD  DETECTIVE SHALL EXPEDITIOUSLY NOTIFY THE
PROSECUTION IN WRITING UPON THE FILING OF AN  ACCUSATORY  INSTRUMENT  OF
THE  EXISTENCE OF ALL SUCH KNOWN RECORDINGS. THE PROSECUTION SHALL EXPE-
DITIOUSLY TAKE WHATEVER REASONABLE STEPS ARE NECESSARY  TO  ENSURE  THAT
ALL  KNOWN  ELECTRONIC  RECORDINGS  OF 911 TELEPHONE CALLS, POLICE RADIO
TRANSMISSIONS AND VIDEO AND AUDIO FOOTAGE AND  OTHER  POLICE  RECORDINGS
MADE  OR AVAILABLE IN CONNECTION WITH THE CASE ARE  PRESERVED THROUGHOUT
THE PENDENCY OF THE CASE. UPON THE DEFENDANT'S TIMELY REQUEST AND DESIG-
NATION OF A SPECIFIC ELECTRONIC RECORDING OF A 911 TELEPHONE  CALL,  THE
PROSECUTION SHALL ALSO  EXPEDITIOUSLY TAKE WHATEVER REASONABLE STEPS ARE
NECESSARY  TO ENSURE THAT IT IS PRESERVED THROUGHOUT THE PENDENCY OF THE
CASE.
  (B) IF THE PROSECUTION FAILS TO DISCLOSE SUCH AN ELECTRONIC  RECORDING
TO  THE  DEFENDANT  PURSUANT TO PARAGRAPH (E), (G) OR (K) OF SUBDIVISION
ONE OF SECTION 245.20 OF THIS ARTICLE DUE TO A FAILURE  TO  COMPLY  WITH
THIS  OBLIGATION  BY  POLICE OFFICERS OR OTHER LAW ENFORCEMENT OR PROSE-
CUTION PERSONNEL, THE COURT UPON MOTION OF THE DEFENDANT SHALL IMPOSE AN
APPROPRIATE REMEDY OR SANCTION PURSUANT TO SECTION 245.80 OF THIS  ARTI-
CLE.
§ 245.60 CONTINUING DUTY TO DISCLOSE.
  IF  EITHER  THE  PROSECUTION  OR  THE DEFENDANT SUBSEQUENTLY LEARNS OF
ADDITIONAL MATERIAL OR INFORMATION WHICH IT WOULD HAVE BEEN UNDER A DUTY
TO DISCLOSE PURSUANT TO ANY PROVISIONS OF THIS ARTICLE AT THE TIME OF  A
PREVIOUS DISCOVERY OBLIGATION OR DISCOVERY ORDER, IT SHALL EXPEDITIOUSLY

S. 8707                            11

NOTIFY  THE OTHER PARTY AND DISCLOSE THE ADDITIONAL MATERIAL OR INFORMA-
TION  AS  REQUIRED  FOR  INITIAL  DISCOVERY  UNDER  THIS  ARTICLE.  THIS
PROVISION  ALSO  REQUIRES  EXPEDITIOUS  DISCLOSURE BY THE PROSECUTION OF
MATERIAL OR INFORMATION THAT BECAME RELEVANT TO THE CASE OR DISCOVERABLE
BASED  UPON RECIPROCAL DISCOVERY RECEIVED FROM THE DEFENDANT PURSUANT TO
SUBDIVISION FOUR OF SECTION 245.20 OF THIS ARTICLE.
§ 245.65 WORK PRODUCT.
  THIS ARTICLE DOES NOT AUTHORIZE DISCOVERY BY A PARTY OF THOSE PORTIONS
OF RECORDS, REPORTS, CORRESPONDENCE, MEMORANDA, OR INTERNAL DOCUMENTS OF
THE  ADVERSE PARTY WHICH ARE ONLY THE LEGAL RESEARCH, OPINIONS, THEORIES
OR CONCLUSIONS OF THE ADVERSE PARTY OR ITS ATTORNEY  OR  THE  ATTORNEY'S
AGENTS,  OR  OF STATEMENTS OF A DEFENDANT, WRITTEN OR RECORDED OR SUMMA-
RIZED IN ANY WRITING OR RECORDING, MADE TO THE ATTORNEY FOR THE  DEFEND-
ANT OR THE ATTORNEY'S AGENTS.
§ 245.70 PROTECTIVE ORDERS.
  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.  PROMPT  HEARING.  UPON  REQUEST  FOR A PROTECTIVE ORDER, THE COURT
SHALL CONDUCT AN APPROPRIATE  HEARING  WITHIN  THREE  BUSINESS  DAYS  TO
DETERMINE  WHETHER  GOOD CAUSE HAS BEEN SHOWN AND WHEN PRACTICABLE SHALL
RENDER DECISION EXPEDITIOUSLY. ANY MATERIALS SUBMITTED AND A  TRANSCRIPT
OF  THE  PROCEEDING  MAY  BE  SEALED  AND SHALL CONSTITUTE A PART OF THE
RECORD ON APPEAL.
  4. 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 CONFIDENTIAL-
ITY  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.

S. 8707                            12

  5. 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 CONDITIONS  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  REGULATE  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 INFORMA-
TION, FOR GOOD CAUSE  SHOWN.
  6. 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-
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.
  7. 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.
§ 245.75 WAIVER OF DISCOVERY BY DEFENDANT.

S. 8707                            13

  A DEFENDANT WHO DOES NOT SEEK DISCOVERY  FROM  THE  PROSECUTION  UNDER
THIS  ARTICLE  SHALL  SO    NOTIFY  THE PROSECUTION AND THE COURT AT THE
DEFENDANT'S ARRAIGNMENT ON AN INDICTMENT,  SUPERIOR  COURT  INFORMATION,
PROSECUTOR'S  INFORMATION,  INFORMATION,  OR  SIMPLIFIED INFORMATION, OR
EXPEDITIOUSLY  THEREAFTER BUT BEFORE RECEIVING DISCOVERY FROM THE PROSE-
CUTION PURSUANT TO  SUBDIVISION ONE OF SECTION 245.20 OF  THIS  ARTICLE,
AND THE DEFENDANT NEED NOT PROVIDE DISCOVERY TO THE PROSECUTION PURSUANT
TO  SUBDIVISION  FOUR OF SECTION 245.20 AND SECTION 245.60 OF THIS ARTI-
CLE.  A WAIVER SHALL BE IN WRITING AND SIGNED BY THE DEFENDANT AND COUN-
SEL FOR THE DEFENDANT. SUCH A   WAIVER DOES NOT  ALTER  OR  IN  ANY  WAY
AFFECT  THE  PROCEDURES,  OBLIGATIONS  OR  RIGHTS  SET FORTH IN SECTIONS
250.10, 250.20 AND 250.30 OF THIS TITLE,  OR  OTHERWISE  ESTABLISHED  OR
REQUIRED  BY LAW.  THE PROSECUTION MAY NOT CONDITION A GUILTY PLEA OFFER
ON THE DEFENDANT'S EXECUTION OF A WAIVER UNDER THIS SECTION.
§ 245.80 REMEDIES OR SANCTIONS FOR NON-COMPLIANCE.
  1. NEED FOR REMEDY OR SANCTION. (A) WHEN MATERIAL  OR  INFORMATION  IS
DISCOVERABLE  UNDER  THIS  ARTICLE BUT IS DISCLOSED BELATEDLY, THE COURT
SHALL IMPOSE AN APPROPRIATE REMEDY OR SANCTION IF THE PARTY ENTITLED  TO
DISCLOSURE  SHOWS  THAT  IT  WAS  PREJUDICED. REGARDLESS OF A SHOWING OF
PREJUDICE THE PARTY ENTITLED TO DISCLOSURE  SHALL  BE  GIVEN  REASONABLE
TIME TO PREPARE AND RESPOND TO THE NEW MATERIAL.
  (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 OR SANCTION IF THE PARTY ENTITLED  TO
DISCLOSURE  SHOWS THAT THE LOST OR DESTROYED MATERIAL MAY HAVE CONTAINED
SOME INFORMATION RELEVANT TO A CONTESTED ISSUE. THE  APPROPRIATE  REMEDY
OR  SANCTION  IS    THAT WHICH IS PROPORTIONATE TO THE POTENTIAL WAYS IN
WHICH THE LOST OR DESTROYED MATERIAL  REASONABLY COULD HAVE BEEN HELPFUL
TO THE PARTY ENTITLED TO DISCLOSURE.
  2. AVAILABLE REMEDIES OR SANCTIONS. 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
NON-COMPLIANCE, 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 NON-DISCLOSURE 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.
§ 245.85 ADMISSIBILITY OF DISCOVERY.

S. 8707                            14

  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 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 ENDORSED 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.
  § 4. Section 65.20 of the criminal procedure law, as added by  chapter
505  of  the laws of 1985, subdivision 2 as added, the opening paragraph
of subdivision 10 as amended and subdivisions 3, 4, 5, 6, 7, 8,  9,  10,
11, 12 and 13 as renumbered by chapter 548 of the laws of 2007, subdivi-
sion  7 and paragraph (k) of subdivision 10 as amended by chapter 320 of
the laws of 2006 and subdivisions 11 and 12 as amended by chapter 455 of
the laws of 1991, is amended to read as follows:
§ 65.20 Closed-circuit television; procedure for application and grounds
            for determination.
  1. Prior to the commencement of a criminal proceeding;  other  than  a
grand  jury proceeding, either party may apply to the court for an order
declaring that a child witness is vulnerable.
  2. A child witness should be declared vulnerable when  the  court,  in
accordance  with the provisions of this section, determines by clear and
convincing evidence that the child witness would suffer  serious  mental
or  emotional  harm  that  would substantially impair the child witness'
ability to communicate with the finder of fact without the use of  live,
two-way closed-circuit television.
  3.  A  motion pursuant to subdivision one of this section must be made
in writing at least eight days before the commencement of trial or other
criminal proceeding upon reasonable notice to the other party  and  with
an opportunity to be heard.
  4.  The  motion  papers  must  state the basis for the motion and must
contain sworn allegations of fact which, if true, would support a deter-
mination by the court that the child witness is vulnerable. Such allega-
tions may be based upon the personal knowledge of the deponent  or  upon
information  and belief, provided that, in the latter event, the sources
of such information and the grounds for such belief are stated.
  5. The answering papers may admit or deny any of the alleged facts and
may, in addition, contain sworn allegations  of  fact  relevant  to  the
motion,  including  the rights of the defendant, the need to protect the

S. 8707                            15

child witness and the integrity of the  truth-finding  function  of  the
trier of fact.
  6.  Unless  all  material  facts alleged in support of the motion made
pursuant to subdivision one of this  section  are  conceded,  the  court
shall,  in  addition  to examining the papers and hearing oral argument,
conduct an appropriate hearing for the purpose  of  making  findings  of
fact essential to the determination of the motion. Except as provided in
subdivision  [six]  SEVEN  of  this section, it may subpoena or call and
examine witnesses, who must either testify under oath or be permitted to
give unsworn testimony pursuant to subdivision two of section 60.20  and
must authorize the attorneys for the parties to do the same.
  7.  Notwithstanding  any other provision of law, the child witness who
is alleged to be vulnerable may not be  compelled  to  testify  at  such
hearing  or  to  submit to any psychological or psychiatric examination.
The failure of the child witness to testify at such hearing shall not be
a ground for denying a motion made pursuant to subdivision one  of  this
section.  Prior  statements  made  by  the child witness relating to any
allegations of conduct constituting an offense defined  in  article  one
hundred  thirty of the penal law or incest as defined in section 255.25,
255.26 or 255.27 of such law or to any allegation of  words  or  conduct
constituting  an  attempt  to prevent, impede or deter the child witness
from cooperating in the investigation  or  prosecution  of  the  offense
shall  be admissible at such hearing, provided, however, that a declara-
tion that a child witness is vulnerable may not  be  based  solely  upon
such prior statements.
  8.  (a) Notwithstanding any of the provisions of article forty-five of
the civil practice law and rules, any physician, psychologist, nurse  or
social  worker  who has treated a child witness may testify at a hearing
conducted pursuant to subdivision [five] SIX of this section  concerning
the  treatment  of  such  child witness as such treatment relates to the
issue presented at the hearing, provided that any  otherwise  applicable
statutory privileges concerning communications between the child witness
and  such  physician, psychologist, nurse or social worker in connection
with such treatment shall not be deemed waived by such testimony  alone,
except to the limited extent of permitting the court alone to examine in
camera  reports,  records  or documents, if any, prepared by such physi-
cian, psychologist, nurse or social worker. If upon such examination the
court determines that such reports, records or documents, or any one  or
portion  thereof, contain information material and relevant to the issue
of whether the child witness is a vulnerable child  witness,  the  court
shall  disclose  such information to both the attorney for the defendant
and the district attorney.
  (b) At any time after a motion has been made pursuant  to  subdivision
one of this section, upon the demand of the other party the moving party
must  furnish  the  demanding  party  with a copy of any and all of such
records, reports or other documents in  the  possession  of  such  other
party  and  must,  in addition, supply the court with a copy of all such
reports, records or other documents which are the subject of the demand.
At any time after a demand has been made pursuant to this paragraph, the
moving party may demand that property of the same kind or  character  in
possession of the party that originally made such demand be furnished to
the  moving party and, if so furnished, be supplied, in addition, to the
court.
  9. (a) Prior to the commencement of the hearing conducted pursuant  to
subdivision  [five]  SIX  of  this section, the district attorney shall,
subject to a protective order, comply with the provisions  of  PARAGRAPH

S. 8707                            16

(C)  OF  subdivision  one  of section [240.45] 245.20 of this chapter as
they concern any witness whom the district attorney intends to  call  at
the hearing and the child witness.
  (b)  Before  a  defendant  calls  a witness at such hearing, he or she
must, subject to a protective  order,  comply  with  the  provisions  of
subdivision  [two]  FOUR  of  section [240.45] 245.20 of this chapter as
they concern all the witnesses the defendant intends  to  call  at  such
hearing.
  10.  The  court may consider, in determining whether there are factors
which would  cause  the  child  witness  to  suffer  serious  mental  or
emotional  harm, a finding that any one or more of the following circum-
stances have been established by clear and convincing evidence:
  (a) The manner of the commission of the offense of which the defendant
is accused was particularly heinous or was characterized by  aggravating
circumstances.
  (b)  The child witness is particularly young or otherwise particularly
subject to psychological harm on account of a physical or mental  condi-
tion which existed before the alleged commission of the offense.
  (c) At the time of the alleged offense, the defendant occupied a posi-
tion of authority with respect to the child witness.
  (d)  The offense or offenses charged were part of an ongoing course of
conduct committed by the defendant against the  child  witness  over  an
extended period of time.
  (e)  A deadly weapon or dangerous instrument was allegedly used during
the commission of the crime.
  (f) The defendant has inflicted serious physical injury upon the child
witness.
  (g) A threat, express or implied, of physical violence  to  the  child
witness  or a third person if the child witness were to report the inci-
dent to any person or communicate information to  or  cooperate  with  a
court,  grand jury, prosecutor, police officer or peace officer concern-
ing the incident has been made by or on behalf of the defendant.
  (h) A threat, express or implied, of the incarceration of a parent  or
guardian of the child witness, the removal of the child witness from the
family  or  the  dissolution  of  the family of the child witness if the
child witness were to report the incident to any person  or  communicate
information to or cooperate with a court, grand jury, prosecutor, police
officer  or peace officer concerning the incident has been made by or on
behalf of the defendant.
  (i) A witness other than the child witness has received  a  threat  of
physical violence directed at such witness or to a third person by or on
behalf of the defendant.
  (j)  The  defendant,  at the time of the inquiry, (i) is living in the
same household with the child witness, (ii)  has  ready  access  to  the
child  witness  or  (iii) is providing substantial financial support for
the child witness.
  (k) The child witness has previously been the  victim  of  an  offense
defined  in  article  one  hundred  thirty of the penal law or incest as
defined in section 255.25, 255.26 or 255.27 of such law.
  (l) According to expert testimony, the child witness would be  partic-
ularly  [suceptible]  SUSCEPTIBLE  to  psychological harm if required to
testify in open court or in the physical presence of the defendant.
  11. Irrespective of whether a motion was made pursuant to  subdivision
one of this section, the court, at the request of either party or on its
own  motion,  may decide that a child witness may be vulnerable based on
its own observations that a child witness who has been called to testify

S. 8707                            17

at a criminal proceeding is suffering severe mental  or  emotional  harm
and therefore is physically or mentally unable to testify or to continue
to  testify  in  open court or in the physical presence of the defendant
and that the use of live, two-way closed-circuit television is necessary
to enable the child witness to testify. If the court so decides, it must
conduct  the  same  hearing  that subdivision [five] SIX of this section
requires when a motion is made  pursuant  to  subdivision  one  of  this
section,  and  it  must  make  findings of fact pursuant to subdivisions
[nine] TEN and [eleven] TWELVE of this section, before determining  that
the child witness is vulnerable.
  12. In deciding whether a child witness is vulnerable, the court shall
make  findings of fact which reflect the causal relationship between the
existence of any one or more of the factors  set  forth  in  subdivision
[nine]  TEN  of  this  section or other relevant factors which the court
finds are established and the determination that the  child  witness  is
vulnerable.  If the court is satisfied that the child witness is vulner-
able and that, under the facts and circumstances of the particular case,
the  defendant's  constitutional  rights  to  an  impartial  jury  or of
confrontation will not be impaired, it may enter an order  granting  the
application for the use of live, two-way closed-circuit television.
  13. When the court has determined that a child witness is a vulnerable
child  witness,  it  shall make a specific finding as to whether placing
the defendant and the child witness in the same room during the testimo-
ny of the child witness will contribute to the likelihood that the child
witness will suffer severe mental or emotional harm. If the court  finds
that placing the defendant and the child witness in the same room during
the  testimony  of  the  child witness will contribute to the likelihood
that the child witness will suffer severe mental or emotional harm,  the
order  entered  pursuant  to subdivision [eleven] TWELVE of this section
shall direct that the defendant  remain  in  the  courtroom  during  the
testimony of the vulnerable child witness.
  § 5. Subdivision 5 of section 200.95 of the criminal procedure law, as
added by chapter 558 of the laws of 1982, is amended to read as follows:
  5.  Court  ordered bill of particulars.  Where a prosecutor has timely
served a written refusal pursuant to subdivision four  of  this  section
and upon motion, made in writing, of a defendant, who has made a request
for  a  bill of particulars and whose request has not been complied with
in whole or in part, the court must, to the extent a protective order is
not warranted, order the prosecutor to comply with the request if it  is
satisfied that the items of factual information requested are authorized
to  be  included  in a bill of particulars, and that such information is
necessary to enable the defendant adequately to prepare or  conduct  his
defense  and,  if  the request was untimely, a finding of good cause for
the delay. Where a prosecutor has not timely served  a  written  refusal
pursuant  to  subdivision four of this section the court must, unless it
is satisfied that the people have shown good cause  why  such  an  order
should  not be issued, issue an order requiring the prosecutor to comply
or providing for any other  order  authorized  by  [subdivision  one  of
section 240.70] SECTION 245.80 OF THIS PART.
  §  6. Paragraph (c) of subdivision 1 of section 255.10 of the criminal
procedure law, as added by chapter 763 of the laws of 1974,  is  amended
to read as follows:
  (c)  granting discovery pursuant to article [240] 245; or
  § 7. 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:

S. 8707                            18

  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 PARAGRAPH (M) OR (N) OF SUBDIVISION ONE
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.
  §  8.  Section 340.30 of the criminal procedure law is amended to read
as follows:
§ 340.30 Pre-trial discovery and notices of defenses.
  The provisions of article two hundred [forty]  FORTY-FIVE,  concerning
pre-trial discovery by a defendant under indictment in a superior court,
and article two hundred fifty, concerning pre-trial notice to the people
by  a  defendant  under  indictment  in  a superior court who intends to
advance a trial defense of mental disease or defect or of  alibi,  apply
to a prosecution of an information in a local criminal court.
  §  9.  Subdivision 14 of section 400.27 of the criminal procedure law,
as added by chapter 1 of the  laws  of  1995,  is  amended  to  read  as
follows:
  14.  (a)  At a reasonable time prior to the sentencing proceeding or a
mental retardation hearing:
  [(i)] the prosecutor shall, unless previously disclosed and subject to
a protective order, make available to the defendant the  statements  and
information  specified  in subdivision one of section [240.45] 245.20 OF
THIS PART and make available for inspection, photographing,  copying  or
testing  the  property  specified in subdivision one of section [240.20;
and
  (ii) the defendant shall, unless previously disclosed and subject to a
protective order, make available to the prosecution the  statements  and
information  specified  in  subdivision  two  of section 240.45 and make
available for inspection, photographing, copying or testing, subject  to
constitutional  limitations,  the  reports, documents and other property
specified in subdivision one of section 240.30] 245.20 OF THIS PART.
  (b) Where a party refuses to make disclosure pursuant to this section,
the provisions of section [240.35, subdivision one of section 240.40 and
section 240.50] 245.70, 245.75 AND/OR 245.80 OF THIS PART shall apply.
  (c) If, after complying with the provisions  of  this  section  or  an
order pursuant thereto, a party finds either before or during a sentenc-
ing  proceeding  or  mental  retardation  hearing,  additional  material
subject to discovery or covered by court order, the party shall promptly
make disclosure or apply for a protective order.
  (d) If the court finds that a party has failed to comply with  any  of
the  provisions of this section, the court may [enter] EMPLOY any of the
[orders] REMEDIES OR SANCTIONS specified in subdivision one  of  section
[240.70] 245.80 OF THIS PART.
  §  10.  The  opening  paragraph  of  paragraph (b) of subdivision 1 of
section 440.30 of the criminal procedure law, as added by chapter 19  of
the laws of 2012, is amended to read as follows:

S. 8707                            19

  In  conjunction with the filing or consideration of a motion to vacate
a judgment pursuant to section 440.10 of this  article  by  a  defendant
convicted after a trial, in cases where the court has ordered an eviden-
tiary  hearing  upon  such  motion,  the court may order that the people
produce or make available for inspection property[, as defined in subdi-
vision  three of section 240.10 of this part,] in its possession, custo-
dy, or control that was secured in connection with the investigation  or
prosecution  of the defendant upon credible allegations by the defendant
and a finding by the court that such property,  if  obtained,  would  be
probative to the determination of defendant's actual innocence, and that
the  request is reasonable. The court shall deny or limit such a request
upon a finding that such a  request,  if  granted,  would  threaten  the
integrity  or chain of custody of property or the integrity of the proc-
esses or functions of a laboratory conducting DNA testing, pose  a  risk
of  harm,  intimidation, embarrassment, reprisal, or other substantially
negative consequences to any person, undermine the proper  functions  of
law  enforcement  including the confidentiality of informants, or on the
basis of any other factor identified by the court in  the  interests  of
justice  or public safety. The court shall further ensure that any prop-
erty produced pursuant to this paragraph  is  subject  to  a  protective
order, where appropriate. The court shall deny any request made pursuant
to this paragraph where:
  §  11.  Subdivision 10 of section 450.10 of the penal law, as added by
chapter 795 of the laws of 1984, is amended to read as follows:
  10. Where there has been a failure to comply with  the  provisions  of
this  section,  and  where the district attorney does not demonstrate to
the satisfaction of the court that  such  failure  has  not  caused  the
defendant  prejudice,  the  court  shall  instruct  the jury that it may
consider such failure  in  determining  the  weight  to  be  given  such
evidence and may also impose any other sanction set forth in subdivision
one  of section [240.70] 245.80 of the criminal procedure law; provided,
however, that unless the defendant has convinced  the  court  that  such
failure has caused him undue prejudice, the court shall not preclude the
district  attorney  from  introducing into evidence the property, photo-
graphs, photocopies, or other reproductions of the  property  or,  where
appropriate,  testimony  concerning  its value and condition, where such
evidence is otherwise properly authenticated and  admissible  under  the
rules  of  evidence.  Failure  to  comply  with  any  one or more of the
provisions of this section shall not for that reason  alone  be  grounds
for dismissal of the accusatory instrument.
  §  12. Section 460.80 of the penal law, as added by chapter 516 of the
laws of 1986, is amended to read as follows:
§ 460.80 Court ordered disclosure.
  Notwithstanding the provisions of article two hundred  [forty]  FORTY-
FIVE  of  the criminal procedure law, when forfeiture is sought pursuant
to section 460.30 of this [chapter] ARTICLE, the court may order discov-
ery of any property  not  otherwise  disclosed  which  is  material  and
reasonably  necessary  for  preparation by the defendant with respect to
the forfeiture proceeding pursuant to such section. The court may  issue
a protective order denying, limiting, conditioning, delaying or regulat-
ing  such discovery where a danger to the integrity of physical evidence
or a substantial risk of physical harm, intimidation, economic reprisal,
bribery or unjustified annoyance or embarrassment to any  person  or  an
adverse  effect  upon the legitimate needs of law enforcement, including
the protection of the confidentiality of informants, or any other factor
or set of factors outweighs the usefulness of the discovery.

S. 8707                            20

  § 13. Subdivision 5 of section 480.10 of the penal law,  as  added  by
chapter 655 of the laws of 1990, is amended to read as follows:
  5.  In  addition  to  information required to be disclosed pursuant to
article two hundred [forty] FORTY-FIVE of the  criminal  procedure  law,
when  forfeiture  is  sought pursuant to this article, and following the
defendant's arraignment on the special forfeiture information, the court
shall order discovery of any information not otherwise  disclosed  which
is  material  and  reasonably necessary for preparation by the defendant
with respect to a forfeiture proceeding brought pursuant to  this  arti-
cle.  Such  material  shall  include  those  portions  of the grand jury
minutes and such other information which pertain solely to  the  special
forfeiture  information and shall not include information which pertains
to the criminal charges. Upon application of the prosecutor,  the  court
may  issue a protective order pursuant to section [240.40] 245.70 of the
criminal procedure law with respect to any information  required  to  be
disclosed pursuant to this subdivision.
  §  14.  This act shall take effect on the ninetieth day after it shall
have become a law; provided, however, the amendments to section 65.20 of
the criminal procedure law made by section four of this  act  shall  not
affect  the  repeal  of such section and shall be deemed repealed there-
with.

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senate Bill S8707

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senate Bill S8707

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Sponsored By

Jamaal T. Bailey

Archive: Last Bill Status - In Senate Committee Codes Committee

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