Legislation

Search OpenLegislation Statutes
This entry was published on 2021-06-18
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 10.40
Chief administrator to prescribe forms and to authorize use of electronic filing
Criminal Procedure (CPL) CHAPTER 11-A, PART 1, TITLE B, ARTICLE 10
* § 10.40 Chief administrator to prescribe forms and to authorize use of

electronic filing.

1. The chief administrator of the courts shall have the power to
adopt, amend and rescind forms for the efficient and just administration
of this chapter. Such forms shall include, without limitation, the forms
described in paragraph (z-1) of subdivision two of section two hundred
twelve of the judiciary law. A failure by any party to submit papers in
compliance with forms authorized by this section shall not be grounds
for that reason alone for denial or granting of any motion.

2. (a) Notwithstanding any other provision of law, the chief
administrator, with the approval of the administrative board of the
courts, may promulgate rules authorizing a program in the use of
electronic means ("e-filing") in the supreme court and in the county
court for (i) the filing with a court of an accusatory instrument for
the purpose of commencement of a criminal action or proceeding in a
superior court, as provided by articles one hundred ninety-five and two
hundred of this chapter, and (ii) the filing and service of papers in
pending criminal actions and proceedings. Provided, however, the chief
administrator shall consult with the county clerk of a county outside
the city of New York before the use of electronic means is to be
authorized in the supreme court or county court of such county, afford
him or her the opportunity to submit comments with respect thereto,
consider any such comments and obtain the agreement thereto of such
county clerk.

(b) (i) Except as otherwise provided in this paragraph, participation
in this program shall be strictly voluntary and will take place only
upon consent of all parties in the criminal action or proceeding; except
that a party's failure to consent to participation shall not bar any
other party to the action from filing and serving papers by electronic
means upon the court or any other party to such action or proceeding who
has consented to participation. Filing an accusatory instrument by
electronic means with the court for the purpose of commencement of a
criminal action or proceeding shall not require the consent of any other
party; provided, however, that upon such filing any person who is the
subject of such accusatory instrument and any attorney for such person
shall be permitted to immediately review and obtain copies of such
instrument if such person or attorney would have been authorized by law
to review or copy such instrument if it had been filed with the court in
paper form.

No party shall be compelled, directly or indirectly, to participate in
e-filing. All parties shall be notified clearly, in plain language,
about their options to participate in e-filing. Where a party is not
represented by counsel, the clerk shall explain such party's options for
electronic filing in plain language, including the option for expedited
processing, and shall inquire whether he or she wishes to participate,
provided however the unrepresented litigant may participate in the
program only upon his or her request, which shall be documented in the
case file, after said party has been presented with sufficient
information in plain language concerning the program.

(ii) The chief administrator may eliminate the requirement of consent
to participation in this program in supreme and county courts of not
more than six counties provided he or she may not eliminate such
requirement for a court without the consent of the district attorney,
the consent of the criminal defense bar as defined in subdivision three
of this section and the consent of the county clerk of the county in
which such court presides.

Notwithstanding the foregoing provisions of this subparagraph, the
chief administrator shall not eliminate the requirement of consent to
participation in a county hereunder until he or she shall have provided
all persons and organizations, or their representative or
representatives, who regularly appear in criminal actions or proceedings
in the superior court of such county with reasonable notice and
opportunity to submit comments with respect thereto and shall have given
due consideration to all such comments, nor until he or she shall have
consulted with the members of the advisory committee specified in
subparagraph (v) of paragraph (u) of subdivision two of section two
hundred twelve of the judiciary law.

(c) Where the chief administrator eliminates the requirement of
consent as provided in subparagraph (ii) of paragraph (b) of this
subdivision, he or she shall afford counsel the opportunity to opt out
of the program, via presentation of a prescribed form to be filed with
the court where the criminal action is pending. Said form shall permit
an attorney to opt out of participation in the program under any of the
following circumstances, in which event, he or she will not be compelled
to participate:

(i) Where the attorney certifies in good faith that he or she lacks
appropriate computer hardware and/or connection to the internet and/or
scanner or other device by which documents may be converted to an
electronic format; or

(ii) Where the attorney certifies in good faith that he or she lacks
the requisite knowledge in the operation of such computers and/or
scanners necessary to participate. For the purposes of this
subparagraph, the knowledge of any employee of an attorney, or any
employee of the attorney's law firm, office or business who is subject
to such attorney's direction, shall be imputed to the attorney.

Notwithstanding the foregoing provisions of this paragraph: (A) where
a party is not represented by counsel, the clerk shall explain such
party's options for electronic filing in plain language, including the
option for expedited processing, and shall inquire whether he or she
wishes to participate, provided however the unrepresented litigant may
participate in the program only upon his or her request, which shall be
documented in the case file, after said party has been presented with
sufficient information in plain language concerning the program; (B) a
party not represented by counsel who has chosen to participate in the
program shall be afforded the opportunity to opt out of the program for
any reason via presentation of a prescribed form to be filed with the
clerk of the court where the proceeding is pending; and (C) a court may
exempt any attorney from being required to participate in the program
upon application for such exemption, showing good cause therefor.

(d)(i) Nothing in this section shall affect or change any existing
laws governing the sealing and confidentiality of court records in
criminal proceedings or access to court records by the parties to such
proceedings, nor shall this section be construed to compel a party to
file a sealed document by electronic means.

(ii) Notwithstanding any other provision of this section, no paper or
document that is filed by electronic means in a criminal proceeding in
supreme court or county court shall be available for public inspection
on-line. Subject to the provisions of existing laws governing the
sealing and confidentiality of court records, nothing herein shall
prevent the unified court system from sharing statistical information
that does not include any papers or documents filed with the action;
and, provided further, that this paragraph shall not prohibit the chief
administrator, in the exercise of his or her discretion, from posting
papers or documents that have not been sealed pursuant to law on a
public website maintained by the unified court system where: (A) the
website is not the website established by the rules promulgated pursuant
to paragraph (a) of this subdivision, and (B) to do so would be in the
public interest. For purposes of this subparagraph, the chief
administrator, in determining whether posting papers or documents on a
public website is in the public interest, shall, at a minimum, take into
account for each posting the following factors: (A) the type of case
involved; (B) whether such posting would cause harm to any person,
including especially a minor or crime victim; (C) whether such posting
would include lewd or scandalous matters; and (D) the possibility that
such papers or documents may ultimately be sealed.

(iii) Nothing in this section shall affect or change existing laws
governing service of process, nor shall this section be construed to
abrogate existing personal service requirements as set forth in the
criminal procedure law.

3. For purposes of this section, the following terms shall have the
following meanings:

(a) "Consent of the criminal defense bar" shall mean that consent has
been obtained from all provider offices and/or organizations in the
county that represented twenty-five percent or more of the persons
represented by public defense providers pursuant to section seven
hundred twenty-two of the county law, as shown in the most recent annual
reports filed pursuant to subdivision one of section seven hundred
twenty-two-f of the county law. Such consent, when given, must be
expressed in a written document that is provided by a person who is
authorized to consent on behalf of the relevant public defender
organization, agency or office; and

(b) "Electronic means" shall be as defined in subdivision (f) of rule
twenty-one hundred three of the civil practice law and rules; and

(c) The "filing and service of papers in pending criminal actions and
proceedings" shall include the filing and service of a notice of appeal
pursuant to section 460.10 of this chapter.

* NB Effective until September 1, 2022
* § 10.40 Chief administrator to prescribe forms.

The chief administrator of the courts shall have the power to adopt,
amend and rescind forms for the efficient and just administration of
this chapter. Such forms shall include, without limitation, the forms
described in paragraph (z-1) of subdivision two of section two hundred
twelve of the judiciary law. A failure by any party to submit papers in
compliance with forms authorized by this section shall not be grounds
for that reason alone for denial or granting of any motion.

* NB Effective September 1, 2022