The New York State Senate

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

    S. 1716                                                  A. 1431

                       2019-2020 Regular Sessions

                      S E N A T E - A S S E M B L Y

                            January 15, 2019
                               ___________

IN  SENATE  --  Introduced  by  Sens.  BAILEY, BENJAMIN, BIAGGI, COMRIE,
  GIANARIS,  HOYLMAN,  KAVANAGH,  KRUEGER,  MONTGOMERY,  MYRIE,  PARKER,
  PERSAUD,  RAMOS,  RIVERA, SAVINO, SEPULVEDA, SERRANO -- read twice and
  ordered printed, and when printed to be committed to the Committee  on
  Codes

IN  ASSEMBLY  --  Introduced  by  M. of A. LENTOL, TAYLOR, PERRY, ORTIZ,
  JEAN-PIERRE, WEPRIN, DICKENS,  JAFFEE,  BURKE,  CRUZ,  FALL,  FRONTUS,
  JACOBSON,  RAYNOR, REYES -- read once and referred 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 Article 240 of the criminal procedure law is REPEALED.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 245.05 FIRST COURT APPEARANCE.
        245.10 TIMING OF DISCOVERY.
        245.20 AUTOMATIC DISCOVERY.
        245.25 DISCLOSURE PRIOR TO CERTAIN GUILTY PLEAS.
        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; READINESS FOR TRIAL.
        245.55 FLOW OF INFORMATION.
        245.60 CONTINUING DUTY TO DISCLOSE.

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

                                                           LBD05655-05-9

S. 1716                             2                            A. 1431

        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.
        245.90 DEPOSITIONS.
§ 245.05 FIRST COURT APPEARANCE.
  CERTAIN  ITEMS  IN  PROSECUTION'S POSSESSION. AT THE DEFENDANT'S FIRST
COURT APPEARANCE AFTER COMMENCEMENT OF A  CRIMINAL  ACTION,  THE  PROSE-
CUTION  SHALL  DISCLOSE  TO  THE  DEFENDANT  ANY (A) POLICE OR OTHER LAW
ENFORCEMENT AGENCY REPORTS AND WRITTEN WITNESS  STATEMENTS  RELATING  TO
THE  CRIMINAL ACTION OR PROCEEDING AGAINST THE DEFENDANT THAT ARE WITHIN
THE PROSECUTION'S POSSESSION AT THAT  TIME;  (B)  ELECTRONIC  RECORDINGS
RELATING TO THE CRIMINAL ACTION OR PROCEEDING AGAINST THE DEFENDANT THAT
ARE WITHIN THE PROSECUTION'S POSSESSION AT THAT TIME, IN ACCORDANCE WITH
PARAGRAPH  (G) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE; AND
(C) EXCULPATORY INFORMATION KNOWN TO THE PROSECUTION AT THAT TIME. IF IN
THE EXERCISE OF REASONABLE DILIGENCE AND DUE TO THE LIMITED AVAILABILITY
OF RESOURCES FOR DOWNLOADING OR COPYING RECORDINGS, A COPY OF  AN  ELEC-
TRONIC  RECORDING  DISCOVERABLE UNDER THIS SECTION IS UNAVAILABLE AT THE
FIRST APPEARANCE, A COPY SHALL BE MADE AND DISCLOSED TO THE DEFENDANT AS
SOON AS PRACTICABLE BUT NOT LATER THAN  FIVE  CALENDAR  DAYS  AFTER  THE
FIRST APPEARANCE. PORTIONS OF MATERIALS UNDER THIS SECTION CLAIMED TO BE
NON-DISCOVERABLE  MAY BE WITHHELD PENDING A PROMPT REQUEST BY THE PROSE-
CUTION FOR A DETERMINATION AND RULING OF THE COURT UNDER SECTION  245.70
OF  THIS  ARTICLE; BUT THE DISCOVERABLE PORTIONS OF SUCH MATERIALS SHALL
BE DISCLOSED TO THE EXTENT PRACTICABLE.
§ 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
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 THIS SECTION, AND THE DISCOVERABLE PORTIONS OF
SUCH  MATERIALS  SHALL  BE DISCLOSED TO THE EXTENT PRACTICABLE. WHEN THE
DISCOVERABLE MATERIALS ARE EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD  IN
THIS PARAGRAPH 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 PRIOR TO
THE FIRST SCHEDULED TRIAL DATE.
  (C) THE PROSECUTION SHALL DISCLOSE MATERIALS 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 PROSPEC-
TIVE 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

S. 1716                             3                            A. 1431

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,
PHOTOGRAPH AND TEST, ALL  ITEMS  AND  INFORMATION  THAT  RELATE  TO  THE
SUBJECT MATTER OF THE CASE AND ARE IN THE POSSESSION, CUSTODY OR CONTROL
OF  THE  PROSECUTION  OR  PERSONS  UNDER  THE PROSECUTION'S DIRECTION OR
CONTROL, INCLUDING BUT NOT LIMITED TO:
  (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.
  (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 THE FIRST 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 PROSE-
CUTION  SHALL  DISCLOSE SUCH TRANSCRIPTS TO THE COURT EXPEDITIOUSLY UPON
RECEIPT 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 ANY 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 PROSECUTION
SHALL NOTIFY THE DEFENDANT 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 ANY 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 PROSECUTION SHALL NOTIFY THE DEFENDANT IN WRITING THAT SUCH INFORMA-
TION  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 ANY POTENTIAL   DEFENSE THERETO,  INCLUDING

S. 1716                             4                            A. 1431

ALL  POLICE  REPORTS,  NOTES  OF POLICE AND OTHER INVESTIGATORS, 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, A LIST OF PUBLICATIONS, AND  ALL  PROFICIENCY
TESTS  AND  RESULTS  ADMINISTERED  OR TAKEN IN THE CURRENT EMPLOYMENT OR
WITHIN THE PAST TEN YEARS, WHICHEVER IS LONGER, 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 INFORMA-
TION 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  PROSECUTION  SHALL  NOTIFY  THE
DEFENDANT  IN  WRITING THAT SUCH INFORMATION HAS NOT BEEN DISCLOSED, AND
SUCH DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE AND NOT LATER  THAN
SIXTY  CALENDAR  DAYS  BEFORE  THE FIRST 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, INCLUDING ALL ELECTRONIC
RECORDINGS OF 911 TELEPHONE CALLS MADE OR RECEIVED  IN  CONNECTION  WITH
THE ALLEGED CRIMINAL INCIDENT, AND A DESIGNATION BY THE PROSECUTOR AS TO
WHICH  OF THE RECORDINGS UNDER THIS PARAGRAPH THE PROSECUTION INTENDS TO
INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING. IF THE DISCOVERABLE MATERIALS
UNDER THIS PARAGRAPH EXCEED TEN HOURS IN TOTAL LENGTH,  THE  PROSECUTION
MAY  DISCLOSE  ONLY THE RECORDINGS THAT IT INTENDS TO INTRODUCE AT TRIAL
OR A PRE-TRIAL HEARING, ALONG WITH A LIST OF THE SOURCE AND  APPROXIMATE
QUANTITY  OF OTHER RECORDINGS AND THEIR GENERAL SUBJECT MATTER IF KNOWN,
AND THE DEFENDANT SHALL HAVE THE RIGHT UPON REQUEST TO OBTAIN RECORDINGS
NOT PREVIOUSLY DISCLOSED. THE PROSECUTION SHALL DISCLOSE  THE  REQUESTED
MATERIALS AS SOON AS PRACTICABLE AND NOT LESS THAN FIFTEEN CALENDAR DAYS
AFTER  THE  DEFENDANT'S REQUEST, UNLESS AN ORDER IS OBTAINED PURSUANT TO
SECTION 245.70 OF THIS ARTICLE.
  (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 RELATE TO THE SUBJECT MATTER OF THE CASE.
  (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, RECORDS, DATA, CALCULATIONS OR WRITINGS,
INCLUDING BUT NOT LIMITED TO   PRELIMINARY TESTS AND  SCREENING  RESULTS
AND  BENCH  NOTES  AND  ANALYSES  PERFORMED  OR  STORED  ELECTRONICALLY,
CONCERNING PHYSICAL OR MENTAL   EXAMINATIONS,  OR  SCIENTIFIC  TESTS  OR
EXPERIMENTS  OR COMPARISONS, RELATING TO THE CRIMINAL ACTION OR PROCEED-
ING WHICH WERE MADE BY OR AT THE REQUEST OR DIRECTION OF A PUBLIC  SERV-
ANT  ENGAGED IN LAW ENFORCEMENT ACTIVITY, OR WHICH WERE MADE BY A PERSON

S. 1716                             5                            A. 1431

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.  INFORMATION UNDER THIS PARAGRAPH ALSO INCLUDES, BUT
IS  NOT  LIMITED  TO,  LABORATORY  INFORMATION MANAGEMENT SYSTEM RECORDS
RELATING TO SUCH MATERIALS, ANY PRELIMINARY OR FINAL  FINDINGS  OF  NON-
CONFORMANCE  WITH  ACCREDITATION,  INDUSTRY OR GOVERNMENTAL STANDARDS OR
LABORATORY PROTOCOLS, AND ANY CONFLICTING ANALYSES OR RESULTS BY LABORA-
TORY PERSONNEL REGARDLESS OF THE LABORATORY'S FINAL ANALYSIS OR RESULTS.
IF THE PROSECUTION SUBMITTED ONE  OR  MORE  ITEMS  FOR  TESTING  TO,  OR
RECEIVED  RESULTS  FROM, A FORENSIC SCIENCE LABORATORY OR SIMILAR ENTITY
NOT UNDER THE PROSECUTION'S DIRECTION OR CONTROL, THE COURT ON MOTION OF
A PARTY SHALL ISSUE SUBPOENAS OR ORDERS TO SUCH LABORATORY OR ENTITY  TO
CAUSE  MATERIALS  UNDER  THIS PARAGRAPH TO BE MADE AVAILABLE FOR DISCLO-
SURE.
  (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, COPY, PHOTOGRAPH AND
TEST 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 RELATES TO THE SUBJECT  MATTER  OF  THE
CASE, ALONG WITH A DESIGNATION OF WHICH ITEMS 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

S. 1716                             6                            A. 1431

245.10  OF  THIS  ARTICLE  THAT  AN  ITEM UNDER THIS SUBDIVISION WILL BE
INTRODUCED AT TRIAL OR A PRE-TRIAL HEARING, THE PROSECUTION SHALL NOTIFY
THE DEFENDANT IN WRITING, AND THE TIME  PERIOD  IN  WHICH  TO  DESIGNATE
ITEMS  AS EXHIBITS SHALL BE STAYED WITHOUT NEED FOR A MOTION PURSUANT TO
SUBDIVISION 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.
  (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, ALL RECORDS OF CALIBRATION, CERTIFICATION, INSPECTION,  REPAIR  OR
MAINTENANCE  OF  MACHINES AND INSTRUMENTS UTILIZED TO PERFORM ANY SCIEN-
TIFIC TESTS AND EXPERIMENTS, INCLUDING BUT NOT LIMITED TO ANY TEST OF  A
PERSON'S  BREATH,  BLOOD,  URINE OR SALIVA, FOR THE PERIOD OF SIX MONTHS
PRIOR AND SIX MONTHS  AFTER  SUCH  TEST  WAS  CONDUCTED,  INCLUDING  THE
RECORDS OF GAS CHROMATOGRAPHY RELATED TO THE CERTIFICATION OF ALL REFER-
ENCE  STANDARDS  AND  THE CERTIFICATION CERTIFICATE, IF ANY, HELD BY THE
OPERATOR OF THE MACHINE OR INSTRUMENT.
  (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.
  (U) (I) A COPY OF ALL ELECTRONICALLY  CREATED  OR  STORED  INFORMATION
SEIZED  OR  OBTAINED  BY  OR  ON BEHALF OF LAW ENFORCEMENT FROM: (A) THE
DEFENDANT AS DESCRIBED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH; OR (B)  A
SOURCE  OTHER  THAN THE DEFENDANT WHICH RELATES TO THE SUBJECT MATTER OF
THE CASE.
  (II) IF THE ELECTRONICALLY CREATED OR  STORED  INFORMATION  ORIGINATES
FROM  A  DEVICE, ACCOUNT, OR OTHER ELECTRONICALLY STORED SOURCE THAT THE
PROSECUTION BELIEVES THE DEFENDANT  OWNED,  MAINTAINED,  OR  HAD  LAWFUL
ACCESS TO AND IS WITHIN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSE-
CUTION  OR  PERSONS  UNDER  THE  PROSECUTION'S DIRECTION OR CONTROL, THE
PROSECUTION SHALL PROVIDE A COMPLETE COPY OF THE ELECTRONICALLY  CREATED
OR  STORED INFORMATION FROM THE DEVICE OR ACCOUNT OR OTHER SOURCE, AND A
DESIGNATION BY THE PROSECUTOR AS TO WHICH PORTIONS IT INTENDS TO  INTRO-
DUCE.
  (III)  IF POSSESSION OF SUCH ELECTRONICALLY CREATED OR STORED INFORMA-
TION WOULD BE A CRIME UNDER NEW YORK STATE OR FEDERAL  LAW,  THE  PROSE-
CUTION SHALL MAKE THOSE PORTIONS OF THE ELECTRONICALLY CREATED OR STORED
INFORMATION  THAT  ARE  NOT  CRIMINAL  TO POSSESS AVAILABLE AS SPECIFIED
UNDER THIS PARAGRAPH AND SHALL AFFORD COUNSEL FOR THE  DEFENDANT  ACCESS
TO  INSPECT  CONTRABAND  PORTIONS AT A SUPERVISED LOCATION THAT PROVIDES
REGULAR AND REASONABLE HOURS FOR SUCH ACCESS,  SUCH  AS  A  PROSECUTOR'S
OFFICE, POLICE STATION, OR COURT.
  (IV)  THIS  PARAGRAPH  SHALL  NOT  BE CONSTRUED TO ALTER OR IN ANY WAY
AFFECT THE RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND  SEIZURES  OR
SUCH  OTHER  RIGHTS  A  SUSPECT  OR  DEFENDANT MAY DERIVE FROM THE STATE
CONSTITUTION OR THE UNITED STATES CONSTITUTION.  IF IN THE  EXERCISE  OF

S. 1716                             7                            A. 1431

REASONABLE  DILIGENCE THE INFORMATION UNDER THIS PARAGRAPH IS NOT AVAIL-
ABLE FOR DISCLOSURE WITHIN THE TIME PERIOD REQUIRED BY  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 PROSECUTION SHALL NOTIFY THE DEFENDANT IN WRIT-
ING THAT SUCH INFORMATION HAS NOT BEEN DISCLOSED,  AND  SUCH  DISCLOSURE
SHALL  BE  MADE  AS  SOON  AS  PRACTICABLE AND NOT LATER THAN FORTY-FIVE
CALENDAR DAYS BEFORE THE FIRST SCHEDULED TRIAL DATE, UNLESS AN ORDER  IS
OBTAINED PURSUANT TO SECTION 245.70 OF THIS ARTICLE.
  2.  DUTIES  OF THE PROSECUTION.  THE PROSECUTOR SHALL MAKE A DILIGENT,
GOOD FAITH EFFORT TO ASCERTAIN THE EXISTENCE OF MATERIAL OR  INFORMATION
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.  FOR  PURPOSES  OF SUBDIVISION ONE OF THIS SECTION, ALL
ITEMS AND INFORMATION RELATED TO THE PROSECUTION  OF  A  CHARGE  IN  THE
POSSESSION  OF  ANY  NEW  YORK  STATE OR LOCAL POLICE OR LAW ENFORCEMENT
AGENCY, AND ANY INFORMATION IN THE POSSESSION  OF  A  LABORATORY  HAVING
CONTACT  WITH  EVIDENCE RELATED TO THE PROSECUTION OF A CHARGE, SHALL BE
DEEMED TO BE IN THE POSSESSION  OF  THE  PROSECUTION.  THIS  SUBDIVISION
SHALL NOT REQUIRE THE PROSECUTOR TO ASCERTAIN THE EXISTENCE OF WITNESSES
NOT  KNOWN TO THE POLICE OR ANOTHER LAW ENFORCEMENT AGENCY, OR THE WRIT-
TEN OR RECORDED STATEMENTS THEREOF, UNDER PARAGRAPH (C) OR (E) OF SUBDI-
VISION 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),  (L)  AND (O) OF SUBDIVISION ONE OF THIS SECTION,
WHICH THE DEFENDANT INTENDS TO INTRODUCE AT TRIAL  OR A PRE-TRIAL  HEAR-
ING,  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
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-

S. 1716                             8                            A. 1431

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. SECTIONS
245.05 AND 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 DISCLOSURES SET FORTH ABOVE, SUCH PARTY MAY MOVE FOR A PROTECTIVE
ORDER PURSUANT TO SECTION 245.70 OF THIS ARTICLE AND PRODUCTION  OF  THE
ITEM  SHALL  BE STAYED PENDING A RULING BY THE COURT. THE OPPOSING PARTY
SHALL BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT    BEEN  DISCLOSED
UNDER  A  PARTICULAR SECTION. WHEN SOME PARTS OF MATERIAL OR INFORMATION
ARE DISCOVERABLE BUT IN THE JUDGMENT OF A PARTY GOOD  CAUSE  EXISTS  FOR
DECLINING  TO  DISCLOSE  OTHER  PARTS,  THE  DISCOVERABLE PARTS SHALL BE
DISCLOSED AND THE DISCLOSING PARTY SHALL GIVE NOTICE IN    WRITING  THAT
NON-DISCOVERABLE PARTS HAVE BEEN WITHHELD.
  6.  REDACTIONS  PERMITTED.  EITHER  PARTY  MAY  REDACT SOCIAL SECURITY
NUMBERS AND TAX NUMBERS FROM DISCLOSURES UNDER THIS ARTICLE.
  7. PRESUMPTION OF OPENNESS. THERE SHALL BE A PRESUMPTION IN  FAVOR  OF
DISCLOSURE  WHEN  INTERPRETING  SECTIONS  245.05, 245.10 AND 245.25, AND
SUBDIVISION ONE OF SECTION 245.20, OF THIS ARTICLE.
§ 245.25 DISCLOSURE PRIOR TO CERTAIN GUILTY PLEAS.
  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 PROSECUTOR MUST DISCLOSE TO THE DEFENSE, AND PERMIT THE
DEFENSE TO DISCOVER, INSPECT, COPY, PHOTOGRAPH AND TEST, ALL  ITEMS  AND
INFORMATION  THAT WOULD BE DISCOVERABLE PRIOR TO TRIAL UNDER SUBDIVISION
ONE OF SECTION 245.20 OF THIS ARTICLE AND ARE IN THE POSSESSION, CUSTODY
OR CONTROL OF  THE  PROSECUTION.  THE  PROSECUTION  SHALL  DISCLOSE  THE
DISCOVERABLE  ITEMS  AND  INFORMATION  NOT LESS THAN THREE CALENDAR DAYS
PRIOR TO THE EXPIRATION DATE OF ANY GUILTY PLEA OFFER BY THE PROSECUTION
OR ANY DEADLINE IMPOSED BY THE COURT FOR ACCEPTANCE OF THE  GUILTY  PLEA
OFFER.  IF THE PROSECUTION DOES NOT COMPLY WITH THE REQUIREMENTS OF THIS
SUBDIVISION,  THEN,  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW, SUCH
OFFER SHALL BE DEEMED AVAILABLE TO THE DEFENDANT  UNTIL  THREE  CALENDAR
DAYS  AFTER  THE  PROSECUTION HAS COMPLIED, ABSENT EXTRAORDINARY CIRCUM-
STANCES INVOLVING NEW  ADVERSE  INFORMATION  BEARING  ON  THE  DEFENDANT
OCCURRING  OR  DISCOVERED  IN THE INTERIM THAT, AFTER APPROPRIATE NOTICE
AND AN OPPORTUNITY FOR A HEARING, ARE SHOWN BY THE PROSECUTION AND FOUND
BY THE COURT. THE COURT MAY TAKE OTHER ADDITIONAL APPROPRIATE ACTION  AS
NECESSARY  TO ADDRESS THE NON-COMPLIANCE. THE RIGHTS UNDER THIS SUBDIVI-
SION 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.  A  DEFENDANT  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 PROSECUTOR MUST DISCLOSE TO THE
DEFENSE, AND PERMIT THE DEFENSE TO DISCOVER, INSPECT,  COPY,  PHOTOGRAPH
AND  TEST, ALL ITEMS AND INFORMATION THAT WOULD BE DISCOVERABLE PRIOR TO

S. 1716                             9                            A. 1431

TRIAL UNDER SUBDIVISION ONE OF SECTION 245.20 OF THIS  ARTICLE  AND  ARE
WITHIN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION. THE PROSE-
CUTION  SHALL  DISCLOSE  THE DISCOVERABLE ITEMS AND INFORMATION 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
ACCEPTANCE OF THE GUILTY PLEA OFFER. IF THE PROSECUTION DOES NOT  COMPLY
WITH  THE  REQUIREMENTS  OF  THIS SUBDIVISION, THEN, NOTWITHSTANDING ANY
OTHER PROVISION OF LAW, SUCH OFFER SHALL  BE  DEEMED  AVAILABLE  TO  THE
DEFENDANT  UNTIL SEVEN CALENDAR DAYS AFTER THE PROSECUTION HAS COMPLIED,
ABSENT EXTRAORDINARY CIRCUMSTANCES  INVOLVING  NEW  ADVERSE  INFORMATION
BEARING  ON  THE  DEFENDANT OCCURRING OR DISCOVERED IN THE INTERIM THAT,
AFTER APPROPRIATE NOTICE AND AN OPPORTUNITY FOR A HEARING, ARE SHOWN  BY
THE  PROSECUTION  AND FOUND BY THE COURT. THE COURT MAY TAKE OTHER ADDI-
TIONAL APPROPRIATE ACTION AS NECESSARY TO  ADDRESS  THE  NON-COMPLIANCE.
THE  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. A DEFENDANT MAY WAIVE HIS OR HER
RIGHTS UNDER THIS SUBDIVISION; BUT A GUILTY PLEA OFFER MAY NOT BE CONDI-
TIONED 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 TO SUCH INDIVIDUAL, AGENCY OR ENTITY, 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  TO  SUCH  INDIVIDUAL,  AGENCY  OR
ENTITY,  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
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.
  4.  PROCEDURE.  A  MOTION UNDER THIS SECTION MUST  BE ON NOTICE TO ANY
INDIVIDUAL, AGENCY OR ENTITY AFFECTED BY THE ORDER. THE COURT MAY,  UPON
REQUEST OF ANY INDIVIDUAL, AGENCY OR ENTITY AFFECTED BY THE ORDER, MODI-
FY  OR  VACATE  THE  ORDER  IF  COMPLIANCE WOULD BE UNREASONABLE OR WILL

S. 1716                            10                            A. 1431

CREATE SIGNIFICANT HARDSHIP TO SUCH INDIVIDUAL, AGENCY  OR  ENTITY.  FOR
GOOD  CAUSE  SHOWN,  THE  COURT MAY PERMIT A PARTY SEEKING OR OPPOSING A
DISCRETIONARY ORDER OF DISCOVERY  UNDER  THIS  SUBDIVISION,  OR  ANOTHER
AFFECTED  INDIVIDUAL,  AGENCY  OR  ENTITY, TO SUBMIT PAPERS OR, FOR GOOD
CAUSE SHOWN, TESTIFY ON THE RECORD EX PARTE OR IN CAMERA. FOR GOOD CAUSE
SHOWN, ANY SUCH PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY MAY BE SEALED;
SUCH PAPERS AND TRANSCRIPTS 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
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.

S. 1716                            11                            A. 1431

  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; READINESS FOR TRIAL.
  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
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

S. 1716                            12                            A. 1431

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.
  3.  TRIAL  READINESS. NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW,
ABSENT AN INDIVIDUALIZED FINDING OF  EXCEPTIONAL  CIRCUMSTANCES  BY  THE
COURT  BEFORE  WHICH THE CHARGE IS PENDING, THE PROSECUTION SHALL NOT BE
DEEMED READY FOR TRIAL FOR PURPOSES OF SECTION  30.30  OF  THIS  CHAPTER
UNTIL  IT  HAS FILED A PROPER CERTIFICATE PURSUANT TO SUBDIVISION ONE OF
THIS SECTION.
§ 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
A  REQUIREMENT THAT DEFENSE COUNSEL OBTAIN A SECURITY CLEARANCE MANDATED
BY LAW OR AUTHORIZED GOVERNMENT REGULATION, UPON REQUEST BY  THE  PROSE-
CUTION,  EACH NEW YORK STATE AND LOCAL LAW ENFORCEMENT AGENCY SHALL MAKE
AVAILABLE TO THE PROSECUTION A COMPLETE COPY OF ITS COMPLETE RECORDS AND
FILES RELATED TO THE INVESTIGATION OF THE CASE OR THE PROSECUTION OF THE
DEFENDANT FOR COMPLIANCE WITH THIS ARTICLE.
  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. UPON  THE
DEFENDANT'S  TIMELY  REQUEST  AND  DESIGNATION  OF A SPECIFIC ELECTRONIC
RECORDING OF A 911 TELEPHONE CALL, THE PROSECUTION  SHALL  ALSO    EXPE-
DITIOUSLY TAKE WHATEVER REASONABLE STEPS ARE NECESSARY TO ENSURE THAT IT
IS PRESERVED.
  (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 HAD IT KNOWN OF
IT AT THE TIME OF A PREVIOUS DISCOVERY OBLIGATION OR DISCOVERY ORDER, IT

S. 1716                            13                            A. 1431

SHALL EXPEDITIOUSLY NOTIFY THE OTHER PARTY AND DISCLOSE  THE  ADDITIONAL
MATERIAL  AND  INFORMATION  AS REQUIRED FOR INITIAL DISCOVERY UNDER THIS
ARTICLE. THIS SECTION ALSO REQUIRES EXPEDITIOUS DISCLOSURE BY THE PROSE-
CUTION  OF  MATERIAL  OR INFORMATION THAT BECAME RELEVANT TO THE CASE OR
DISCOVERABLE BASED ON 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 HARASSMENT TO ANY PERSON; A SUBSTANTIAL
RISK OF AN ADVERSE EFFECT UPON THE LEGITIMATE NEEDS OF LAW  ENFORCEMENT,
INCLUDING THE PROTECTION OF THE CONFIDENTIALITY OF INFORMANTS; DANGER TO
ANY  PERSON  STEMMING  FROM  FACTORS SUCH AS A DEFENDANT'S SUBSTANTIATED
AFFILIATION WITH A GANG ENGAGED IN CRIMINAL ACTIVITY, 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. 1716                            14                            A. 1431

  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 IS SHOWN 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 A DETERMINATION.
  (C) THE ASSIGNMENT OF THE INDIVIDUAL APPELLATE JUSTICE, AND  THE  MODE
OF  AND  PROCEDURE  FOR  THE REVIEW, SHALL BE DETERMINED BY RULES OF THE
INDIVIDUAL 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 PREVI-
OUSLY  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 AND ORDER EXPEDITIOUSLY. SUCH
REVIEW, DECISION AND ORDER 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. 1716                            15                            A. 1431

  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, SIGNED FOR  THE  INDIVIDUAL  CASE  BY
COUNSEL  FOR THE DEFENDANT AND FILED WITH THE COURT. 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 DEFENSE'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.

S. 1716                            16                            A. 1431

§ 245.85 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.
§ 245.90 DEPOSITIONS.
  1. AT ANY TIME AFTER ARRAIGNMENT ON A FELONY COMPLAINT, AN  INDICTMENT
OR  A  SUPERIOR  COURT  INFORMATION CHARGING A FELONY, UPON SERVICE OF A
SUBPOENA ISSUED FOR PURPOSES OF THIS SECTION BY THE COURT, THE  PROSECU-
TOR  OR  THE ATTORNEY FOR THE DEFENDANT IN A MANNER OTHERWISE CONSISTENT
WITH SECTION 610.20 OF THIS CHAPTER, EITHER PARTY MAY OBTAIN THE DEPOSI-
TION ON ORAL EXAMINATION OF ANY PERSON WHO:  (A) AT THE TIME OF  ONE  OR
MORE  RELEVANT  EVENTS, WAS A POLICE OR LAW ENFORCEMENT OFFICER OR OTHER
GOVERNMENT EMPLOYEE AND WHOSE TESTIMONY WOULD BE RELEVANT TO THE SUBJECT
MATTER OF THE CASE PROVIDED,  HOWEVER,  THAT  THE  PROSECUTION  MAY  NOT
DEPOSE  A DEFENDANT, AND THE DEFENDANT MAY NOT DEPOSE SUCH AN OFFICER OR
EMPLOYEE WITH RESPECT TO A CHARGE IN WHICH SUCH OFFICER OR  EMPLOYEE  IS
THE  ALLEGED VICTIM; OR (B) IS AN EXPERT IDENTIFIED IN DISCOVERY, OR WHO
WORKED ON THE CASE ON BEHALF OF THE PROSECUTION, OR WHOM A PARTY INTENDS
TO CALL TO TESTIFY.
  2. EACH OFFICER, EMPLOYEE OR EXPERT MAY BE DEPOSED UNDER THIS  SECTION
ONLY ONCE IN SUCH CASE BY A DEFENDANT OR THE PROSECUTION, ABSENT A COURT
ORDER PERMITTING A SUCCESSIVE DEPOSITION FOR GOOD CAUSE SHOWN.
  3.  DEPOSITION  OF  A  PERSON UNDER THIS SECTION SHALL BE TAKEN IN THE
COUNTY WHERE THE PERSON LIVES OR WORKS, OR IN ANOTHER LOCATION AGREED TO
BY THE PARTIES, OR AT A LOCATION DESIGNATED BY ORDER  OF  THE  JUDGE  OR
JUSTICE ASSIGNED TO THE CASE. THE DEPOSITION OF ANY PERSON CONFINED IN A
CORRECTIONAL  FACILITY  OR  LOCAL  CORRECTIONAL  FACILITY SHALL BE TAKEN
WHERE THE PERSON IS CONFINED, UNLESS OTHERWISE ORDERED BY THE COURT.
  4. COUNSEL FOR ALL PARTIES SHALL BE PERMITTED TO BE PRESENT AT A DEPO-
SITION. THE DEFENDANT AND ANY CO-DEFENDANT SHALL NOT BE PHYSICALLY PRES-
ENT AT A DEPOSITION UNDER  THIS  SECTION  EXCEPT  BY  AGREEMENT  OF  THE
PARTIES,  OR  A  COURT  ORDER  GRANTED ON A SHOWING OF GOOD CAUSE BY THE
DEFENDANT OR ANY CO-DEFENDANT.  THE PARTY SETTING THE  DEPOSITION  SHALL
GIVE REASONABLE NOTICE OF THE DEPOSITION IN WRITING TO THE WITNESS TO BE
DEPOSED  AND TO COUNSEL FOR ALL PARTIES AND CO-DEFENDANTS. THE ATTORNEYS
FOR THE DEFENDANT AND ANY CO-DEFENDANTS SHALL  SEEK  TO  COORDINATE  ANY
DEPOSITIONS TO AVOID MULTIPLE DEPOSITIONS OF A SINGLE WITNESS; ANY PARTY
THAT  ASSERTS  MULTIPLE DEPOSITIONS OF A SINGLE WITNESS ARE BEING SCHED-
ULED FOR A PROHIBITED PURPOSE MAY SEEK A PROTECTIVE  ORDER  PURSUANT  TO
SECTION 245.70 OF THIS ARTICLE.
  5.  EITHER  PARTY MAY DISCOVER BY DEPOSITION THE FACTS AND OPINIONS TO
WHICH SUCH AN EXPERT IS EXPECTED TO TESTIFY. UNLESS  MANIFEST  INJUSTICE
WOULD  RESULT,  THE COURT SHALL REQUIRE THAT THE PARTY SEEKING DISCOVERY
PAY THE EXPERT A REASONABLE HOURLY FEE FOR TRAVEL TIME AND THE TIME  THE
EXPERT IS DEPOSED.
  §  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 INDORSED BY THE COURT AND PROVIDES AT  LEAST

S. 1716                            17                            A. 1431

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. Subdivision 9 of section 65.20 of the criminal procedure law,  as
added  by  chapter  505 of the laws of 1985 and as renumbered by chapter
548 of the laws of 2007, is amended to read as follows:
  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 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.
  § 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:
  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

S. 1716                            18                            A. 1431

OF SECTION 245.20 OF THIS TITLE, (B) an eavesdropping warrant and appli-
cation have been furnished pursuant to section 700.70 OF  THIS  CHAPTER,
or  (C)  a  notice  of  intention  to introduce evidence has been served
pursuant  to  section  710.30  OF  THIS  CHAPTER,  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 OF THIS PART,
concerning  pre-trial  discovery  by  a  defendant under indictment in a
superior court, and article two hundred fifty OF THIS  PART,  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]
245.20; 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]  FOUR  of  section  [240.45]
245.20  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] IN
SECTION 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:
  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

S. 1716                            19                            A. 1431

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.
  § 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,

S. 1716                            20                            A. 1431

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.