§ 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 courts of New York having criminal
jurisdiction for: (i) the filing with a court of an accusatory
instrument for the purpose of commencement of a criminal action or
proceeding, and (ii) the filing and service of papers in pending 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 hereunder 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) Participation in this program may be required or may be voluntary
as provided by the chief administrator, except that it shall be strictly
voluntary as to any party to an action or proceeding who is not
represented by counsel unless such party, upon his or her request,
chooses to participate.

(c) (i) Where participation in this program is to be voluntary: (A)
filing an accusatory instrument by electronic means with the court for
the purpose of commencement of an action or proceeding shall not require
the consent of any other party; nor shall a party's failure to consent
to participation in an action or proceeding bar any other party to such
action or proceeding from filing and serving papers by facsimile
transmission or electronic means upon the court or any other party to
such action or proceeding who has consented to participation;

(B) all parties shall be notified clearly, in plain language, about
their options to participate in filing by electronic means;

(C) no party to an action or proceeding shall be compelled, directly
or indirectly, to participate;

(D) where a party is not represented by counsel, the court 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) Where participation in this program is to be required:

(A) such requirement shall not be effective in a court in a county
unless, in addition to consulting with the county clerk of such county
and obtaining his or her agreement thereto if the court is a supreme
court or county court, the chief administrator shall:

(1) first consult with and obtain the agreement of the district
attorney and the criminal defense bar of such county, provide all
persons and organizations, or their representative or representatives,
who regularly appear in criminal actions or proceedings in the criminal
courts of such county with reasonable notice and opportunity to submit
comments with respect thereto and give due consideration to all such
comments, and consult 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; and

(2) afford all those with whom he or she consults pursuant to item one
of this clause the opportunity to submit comments with respect to the
program, which comments, including but not limited to comments related
to unrepresented litigants, he or she shall consider and shall post for
public review on the office of court administration's website; and

(B) as provided in paragraph (d) of this subdivision, no party who is
not represented by counsel nor any counsel in an affected case who opts
out of participation in the program shall be required to participate
therein.

(d) Where the chief administrator requires participation in electronic
filing as provided in 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.

(e)(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
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.