Bill Text: NY A07033 | 2023-2024 | General Assembly | Introduced
Bill Title: Relates to the discovery of material, non-material and impeachment information and the required time frame for such discovery; requires the submission of a certificate of compliance upon completion of certain discovery requirements.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - referred to codes [A07033 Detail]
Download: New_York-2023-A07033-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7033 2023-2024 Regular Sessions IN ASSEMBLY May 10, 2023 ___________ Introduced by M. of A. WALLACE -- read once and referred to the Commit- tee on Codes AN ACT to amend the criminal procedure law, in relation to the discovery of material, non-material and impeachment information and the required time frame for such discovery The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraph (j) of subdivision 4 of section 30.30 of the 2 criminal procedure law, as amended by section 1 of part KKK of chapter 3 59 of the laws of 2019, is amended to read as follows: 4 (j) the period during which a family offense is before a family court 5 until such time as an accusatory instrument or indictment is filed 6 against the defendant alleging a crime constituting a family offense, as 7 such term is defined in section 530.11 of this chapter; 8 (k) the period during which the prosecution performs its discovery 9 obligations under paragraphs (a), (b) and (c) of subdivision one of 10 section 245.10 of this article provided that the certificates of compli- 11 ance for each disclosure are filed within the period outlined in the 12 respective subdivisions; provided, however, that delay in compliance 13 beyond the mandated periods may be excludable as an exceptional circum- 14 stance under paragraph (g) of this subdivision. 15 § 2. The section heading and subdivision 1 of section 245.10 of the 16 criminal procedure law, as added by section 2 of part LLL of chapter 59 17 of the laws of 2019, paragraph (a) of subdivision 1 as amended by 18 section 1 of part HHH of chapter 56 of the laws of 2020 and subparagraph 19 (iii) of paragraph (a) as amended by section 5 of subpart D of part UU 20 of chapter 56 of the laws of 2022, are amended to read as follows: 21 Timing of discovery and certain pre-trial motion procedure. 22 1. (a) [Subject to subparagraph (iv) of this paragraph, the prose-23cution shall perform its initial discovery obligations under subdivision24one of section 245.20 of this article as soon as practicable but notEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08106-01-3A. 7033 2 1later than the time periods specified in subparagraphs (i) and (ii) of2this paragraph, as applicable. Portions of materials claimed to be non-3discoverable may be withheld pending a determination and ruling of the4court under section 245.70 of this article; but the defendant shall be5notified in writing that information has not been disclosed under a6particular subdivision of such section, and the discoverable portions of7such materials shall be disclosed to the extent practicable. When the8discoverable materials, including video footage from body-worn cameras,9surveillance cameras, or dashboard cameras, are exceptionally voluminous10or, despite diligent, good faith efforts, are otherwise not in the actu-11al possession of the prosecution, the time period in this paragraph may12be stayed by up to an additional thirty calendar days without need for a13motion pursuant to subdivision two of section 245.70 of this article.14(i) When a defendant is in custody during the pendency of the criminal15case, the prosecution shall perform its initial discovery obligations16within twenty calendar days after the defendant's arraignment on an17indictment, superior court information, prosecutor's information, infor-18mation, simplified information, misdemeanor complaint or felony19complaint.20(ii) When the defendant is not in custody during the pendency of the21criminal case, the prosecution shall perform its initial discovery obli-22gations within thirty-five calendar days after the defendant's arraign-23ment on an indictment, superior court information, prosecutor's informa-24tion, information, simplified information, misdemeanor complaint or25felony complaint.26(iii)] The prosecution shall perform its initial discovery obligations 27 under paragraph (a) of subdivision one of section 245.20 of this article 28 as soon as practicable but not later than thirty days after the defend- 29 ant's arraignment on an indictment, superior court information, 30 prosecutor's information, information, simplified information, misdemea- 31 nor complaint or felony complaint. When the prosecution has provided 32 the discovery required by paragraph (a) of subdivision one of section 33 245.20 of this article, it shall serve upon the defendant and file with 34 the court a certificate of compliance pursuant to subdivision one of 35 section 245.50 of this article. 36 (b) Once the prosecution has filed its certificate of compliance 37 concerning the disclosure required by paragraph (a) of subdivision one 38 of section 245.20 of this article, the defense must file its pre-trial 39 motions within forty-five days of that filing. The prosecution shall 40 begin performance of their disclosure of discovery obligations under 41 paragraph (b) of subdivision one of section 245.20 of this article after 42 completion of their discovery, must file their response to the omnibus 43 motion within 30 days of its receipt and must complete their disclosure 44 of discovery obligations under paragraph (b) of subdivision one of 45 section 245.20 of this article no later than the date of the filing of 46 their omnibus motion response. Once the prosecution has provided the 47 discovery required by paragraph (b) of subdivision one of section 245.20 48 of this article, it shall serve upon the defendant and file with the 49 court a certificate of compliance pursuant to subdivision one of section 50 245.50 of this article. Upon its filing, the prosecution may file a 51 certificate of readiness or announce readiness for trial. 52 (c) The prosecution shall perform its discovery obligations under 53 paragraph (c) of subdivision one of section 245.20 of this article no 54 later than fifteen days after decision on the defendant's pre-trial 55 motions.A. 7033 3 1 (d) Notwithstanding the previous provisions of this section, the 2 prosecutor's obligations shall not apply to a simplified information 3 charging a traffic infraction under the vehicle and traffic law, or to 4 an information charging one or more petty offenses as defined by the 5 municipal code of a village, town, city, or county, that do not carry a 6 statutorily authorized sentence of imprisonment, and where the defendant 7 stands charged before the court with no crime or offense, provided 8 however that nothing in this subparagraph shall prevent a defendant from 9 filing a motion for disclosure of such items and information under 10 subdivision one of section 245.20 of this article. The court shall, at 11 the first appearance, advise the defendant of their right to file a 12 motion for discovery. 13 [(iv)(A)] (e)(i) Portions of materials that must be disclosed under 14 paragraphs (a), (b), and (c) of subdivision one of section 245.20 of 15 this article claimed to be non-discoverable may be withheld pending a 16 determination and ruling of the court under section 245.70 of this arti- 17 cle; but the defendant shall be notified in writing that information has 18 not been disclosed under a particular subdivision of such section, and 19 the discoverable portions of such materials shall be disclosed to the 20 extent practicable. Information related to or evidencing the identity of 21 a 911 caller, the victim or witness of an offense defined under article 22 one hundred thirty or sections 230.34 and 230.34-a of the penal law, or 23 any other victim or witness of a crime where the defendant has substan- 24 tiated affiliation with a criminal enterprise as defined in subdivision 25 three of section 460.10 of the penal law may be withheld, provided, 26 however, the defendant may move the court for disclosure. 27 [(B)] (ii) When the discoverable materials are exceptionally volumi- 28 nous or, despite diligent, good faith efforts, are otherwise not in the 29 actual possession of the prosecution, the time period in this paragraph 30 may be extended pursuant to a motion pursuant to subdivision two of 31 section 245.70 of this article. For purposes of this article, voluminous 32 materials may include, but are not limited to, video footage from body 33 worn cameras, surveillance cameras or dashboard cameras. 34 (b) The prosecution shall perform its supplemental discovery obli- 35 gations under subdivision three of section 245.20 of this article as 36 soon as practicable but not later than fifteen calendar days prior to 37 the first scheduled trial date. 38 (c)] (f) The prosecution shall disclose statements of the defendant as 39 described in paragraph (a) of subdivision one of section 245.20 of this 40 article to any defendant who has been arraigned in a local criminal 41 court upon a currently undisposed of felony complaint charging an 42 offense which is a subject of a prospective or pending grand jury 43 proceeding, no later than forty-eight hours before the time scheduled 44 for the defendant to testify at a grand jury proceeding pursuant to 45 subdivision five of section 190.50 of this part. 46 § 3. Subdivisions 1, 2, 4 and 5 of section 245.20 of the criminal 47 procedure law, as added by section 2 of part LLL of chapter 59 of the 48 laws of 2019 and paragraphs (c), (f), (g) and (j) of subdivision 1 as 49 amended by section 2 of part HHH of chapter 56 of the laws of 2020, are 50 amended to read as follows: 51 1. Initial discovery for the defendant. The prosecution shall disclose 52 to the defendant, and permit the defendant to discover, inspect, copy, 53 photograph and test, all items and information in the following catego- 54 ries of information that relate to the subject matter of the case and 55 are in the possession, custody or control of the prosecution or personsA. 7033 4 1 under the prosecution's direction or control, including but not limited 2 to: 3 (a) Material information: 4 (i) All written or recorded statements, and the substance of all oral 5 statements, made by the defendant or a co-defendant to a public servant 6 engaged in law enforcement activity or to a person then acting under his 7 or her direction or in cooperation with him or her. 8 [(b)] (ii) All transcripts of the testimony of a person who has testi- 9 fied before a grand jury, including but not limited to the defendant or 10 a co-defendant. If in the exercise of reasonable diligence, and due to 11 the limited availability of transcription resources, a transcript is 12 unavailable for disclosure within the time period specified in subdivi- 13 sion one of section 245.10 of this article, such time period may be 14 stayed by up to an additional thirty calendar days without need for a 15 motion pursuant to subdivision two of section 245.70 of this article; 16 except that such disclosure shall be made as soon as practicable and not 17 later than [thirty calendar days before the first scheduled trial date] 18 the end of the time period under paragraph (c) of subdivision one of 19 section 245.10 of this article, unless an order is obtained pursuant to 20 section 245.70 of this article. When the court is required to review 21 grand jury transcripts, the prosecution shall disclose such transcripts 22 to the court expeditiously upon receipt by the prosecutor, notwithstand- 23 ing the otherwise-applicable time periods for disclosure in this arti- 24 cle. 25 [(c) The names and adequate contact information for all persons other26than law enforcement personnel whom the prosecutor knows to have27evidence or information relevant to any offense charged or to any poten-28tial defense thereto, including a designation by the prosecutor as to29which of those persons may be called as witnesses. Nothing in this para-30graph shall require the disclosure of physical addresses; provided,31however, upon a motion and good cause shown the court may direct the32disclosure of a physical address. Information under this subdivision33relating to the identity of a 911 caller, the victim or witness of an34offense defined under article one hundred thirty or section 230.34 or35230.34-a of the penal law, any other victim or witness of a crime where36the defendant has substantiated affiliation with a criminal enterprise37as defined in subdivision three of section 460.10 of the penal law, or a38confidential informant may be withheld, and redacted from discovery39materials, without need for a motion pursuant to section 245.70 of this40article; but the prosecution shall notify the defendant in writing that41such information has not been disclosed, unless the court rules other-42wise for good cause shown.43(d) The name and work affiliation of all law enforcement personnel44whom the prosecutor knows to have evidence or information relevant to45any offense charged or to any potential defense thereto, including a46designation by the prosecutor as to which of those persons may be called47as witnesses. Information under this subdivision relating to undercover48personnel may be withheld, and redacted from discovery materials, with-49out need for a motion pursuant to section 245.70 of this article; but50the prosecution shall notify the defendant in writing that such informa-51tion has not been disclosed, unless the court rules otherwise for good52cause shown.53(e)] (iii) All statements, written or recorded or summarized in any 54 writing or recording, made by persons who have evidence or information 55 relevant to any offense charged or to any potential defense thereto, 56 including all police reports, notes of police and other investigators,A. 7033 5 1 and law enforcement agency reports. This provision also includes state- 2 ments, written or recorded or summarized in any writing or recording, by 3 persons to be called as witnesses at pre-trial hearings. 4 [(f) Expert opinion evidence, including the name, business address,5current curriculum vitae, a list of publications, and a list of profi-6ciency tests and results administered or taken within the past ten years7of each expert witness whom the prosecutor intends to call as a witness8at trial or a pre-trial hearing, and all reports prepared by the expert9that pertain to the case, or if no report is prepared, a written state-10ment of the facts and opinions to which the expert is expected to testi-11fy and a summary of the grounds for each opinion. This paragraph does12not alter or in any way affect the procedures, obligations or rights set13forth in section 250.10 of this title. If in the exercise of reasonable14diligence this information is unavailable for disclosure within the time15period specified in subdivision one of section 245.10 of this article,16that period shall be stayed without need for a motion pursuant to subdi-17vision two of section 245.70 of this article; except that the prose-18cution shall notify the defendant in writing that such information has19not been disclosed, and such disclosure shall be made as soon as practi-20cable and not later than sixty calendar days before the first scheduled21trial date, unless an order is obtained pursuant to section 245.70 of22this article. When the prosecution's expert witness is being called in23response to disclosure of an expert witness by the defendant, the court24shall alter a scheduled trial date, if necessary, to allow the prose-25cution thirty calendar days to make the disclosure and the defendant26thirty calendar days to prepare and respond to the new materials.27(g)] (iv) Intention to introduce expert opinion evidence. 28 (v) All tapes or other electronic recordings, including all electronic 29 recordings of 911 telephone calls made or received in connection with 30 the alleged criminal incident, and a designation by the prosecutor as to 31 which of the recordings under this paragraph the prosecution intends to 32 introduce at trial or a pre-trial hearing. If the discoverable materials 33 under this paragraph exceed ten hours in total length, the prosecution 34 may disclose only the recordings that it intends to introduce at trial 35 or a pre-trial hearing[, along with a list of the source and approximate36quantity of other recordings and their general subject matter if known,37and the defendant shall have the right upon request to obtain recordings38not previously disclosed. The prosecution shall disclose the requested39materials as soon as practicable and not less than fifteen calendar days40after the defendant's request, unless an order is obtained pursuant to41section 245.70 of this article. The prosecution may withhold the names42and identifying information of any person who contacted 911 without the43need for a protective order pursuant to section 245.70 of this article,44provided, however, the defendant may move the court for disclosure. If45the prosecution intends to call such person as a witness at a trial or46hearing, the prosecution must disclose the name and contact information47of such witness no later than fifteen days before such trial or hearing,48or as soon as practicable]. 49 [(h)] (vi) All photographs and drawings made or completed by a public 50 servant engaged in law enforcement activity, or which were made by a 51 person whom the prosecutor intends to call as a witness at trial or a 52 pre-trial hearing[, or] which [relate to the subject matter of] are 53 relevant to the charges against the defendant in the case. 54 [(i)] (vii) All photographs, photocopies and reproductions made by or 55 at the direction of law enforcement personnel of any property prior to 56 its release pursuant to section 450.10 of the penal law.A. 7033 6 1 [(j)] (viii) All reports, documents, records, data, calculations or 2 writings, including but not limited to preliminary tests and screening 3 results and bench notes and analyses performed or stored electronically, 4 concerning physical or mental examinations, or scientific tests or 5 experiments or comparisons, relating to the criminal action or proceed- 6 ing which were made by or at the request or direction of a public serv- 7 ant engaged in law enforcement activity, or which were made by a person 8 whom the prosecutor intends to call as a witness at trial or a pre-trial 9 hearing, or which the prosecution intends to introduce at trial or a 10 pre-trial hearing. Information under this paragraph also includes, but 11 is not limited to, laboratory information management system records 12 relating to such materials, any preliminary or final findings of non- 13 conformance with accreditation, industry or governmental standards or 14 laboratory protocols, and any conflicting analyses or results by labora- 15 tory personnel regardless of the laboratory's final analysis or results. 16 If the prosecution submitted one or more items for testing to, or 17 received results from, a forensic science laboratory or similar entity 18 not under the prosecution's direction or control, the court on motion of 19 a party shall issue subpoenas or orders to such laboratory or entity to 20 cause materials under this paragraph to be made available for disclo- 21 sure. The prosecution shall not be required to provide information 22 related to the results of physical or mental examinations, or scientific 23 tests or experiments or comparisons, unless and until such examinations, 24 tests, experiments, or comparisons have been completed. 25 [(k)] (ix) All evidence and information, including that which is known 26 to police or other law enforcement agencies acting on the government's 27 behalf in the case, that tends to: [(i)] (A) negate the defendant's 28 guilt as to a charged offense; [(ii)] (B) reduce the degree of or miti- 29 gate the defendant's culpability as to a charged offense; [(iii)] (C) 30 support a potential defense to a charged offense; [(iv) impeach the31credibility of a testifying prosecution witness; (v)] (D) undermine 32 evidence of the defendant's identity as a perpetrator of a charged 33 offense; [(vi)] (E) provide a basis for a motion to suppress evidence; 34 or [(vii)] (F) mitigate punishment. Information under this subdivision 35 shall be disclosed whether or not such information is recorded in tangi- 36 ble form and irrespective of whether the prosecutor credits the informa- 37 tion. The prosecutor shall disclose the information expeditiously upon 38 its receipt and shall not delay disclosure if it is obtained earlier 39 than the time period for disclosure in subdivision one of section 245.10 40 of this article. 41 [(l) A summary of all promises, rewards and inducements made to, or in42favor of, persons who may be called as witnesses, as well as requests43for consideration by persons who may be called as witnesses and copies44of all documents relevant to a promise, reward or inducement.45(m)] (x) A list of all tangible objects obtained from, or allegedly 46 possessed by, the defendant or a co-defendant. The list shall include a 47 designation by the prosecutor as to which objects were physically or 48 constructively possessed by the defendant and were recovered during a 49 search or seizure by a public servant or an agent thereof, and which 50 tangible objects were recovered by a public servant or an agent thereof 51 after allegedly being abandoned by the defendant. If the prosecution 52 intends to prove the defendant's possession of any tangible objects by 53 means of a statutory presumption of possession, it shall designate such 54 intention as to each such object. If reasonably practicable, the prose- 55 cution shall also designate the location from which each tangible objectA. 7033 7 1 was recovered. There is also a right to inspect, copy, photograph and 2 test the listed tangible objects. 3 [(n)] (xi) Whether a search warrant has been executed and all docu- 4 ments relating thereto, including but not limited to the warrant, the 5 warrant application, supporting affidavits, a police inventory of all 6 property seized under the warrant, and a transcript of all testimony or 7 other oral communications offered in support of the warrant application. 8 [(o)] (xii) All tangible property that [relates to the subject matter9of the case, along with a designation of which items] the prosecution 10 intends to introduce in its case-in-chief at trial or a pre-trial hear- 11 ing. If in the exercise of reasonable diligence the prosecutor has not 12 formed an intention within the time period specified in subdivision one 13 of section 245.10 of this article that an item under this subdivision 14 will be introduced at trial or a pre-trial hearing, the prosecution 15 shall notify the defendant in writing, and the time period in which to 16 designate items as exhibits shall be stayed without need for a motion 17 pursuant to subdivision two of section 245.70 of this article; but the 18 disclosure shall be made as soon as practicable and subject to the 19 continuing duty to disclose in section 245.60 of this article. 20 [(p) A complete record of judgments of conviction for all defendants21and all persons designated as potential prosecution witnesses pursuant22to paragraph (c) of this subdivision, other than those witnesses who are23experts.24(q) When it is known to the prosecution, the existence of any pending25criminal action against all persons designated as potential prosecution26witnesses pursuant to paragraph (c) of this subdivision.27(r)] (xiii) The approximate date, time and place of the offense or 28 offenses charged and of the defendant's seizure and arrest. 29 [(s) In any prosecution alleging a violation of the vehicle and traf-30fic law, where the defendant is charged by indictment, superior court31information, prosecutor's information, information, or simplified infor-32mation, all records of calibration, certification, inspection, repair or33maintenance of machines and instruments utilized to perform any scien-34tific tests and experiments, including but not limited to any test of a35person's breath, blood, urine or saliva, for the period of six months36prior and six months after such test was conducted, including the37records of gas chromatography related to the certification of all refer-38ence standards and the certification certificate, if any, held by the39operator of the machine or instrument. The time period required by40subdivision one of section 245.10 of this article shall not apply to the41disclosure of records created six months after a test was conducted, but42such disclosure shall be made as soon as practicable and in any event,43the earlier of fifteen days following receipt, or fifteen days before44the first scheduled trial date.45(t)] (xiv) In any prosecution alleging a violation of section 156.05 46 or 156.10 of the penal law, the time, place and manner such violation 47 occurred. 48 [(u) (i)] (xv)(A) A copy of all electronically created or stored 49 information seized or obtained by or on behalf of law enforcement from: 50 [(A)] (1) the defendant as described in clause (B) of this subparagraph 51 [(ii) of this paragraph]; or [(B)] (2) a source other than the defendant 52 which [relates to the subject matter of] is relevant to the charges 53 against the defendant in the case. 54 [(ii)] (B) If the electronically created or stored information origi- 55 nates from a device, account, or other electronically stored source that 56 the prosecution believes the defendant owned, maintained, or had lawfulA. 7033 8 1 access to and is within the possession, custody or control of the prose- 2 cution or persons under the prosecution's direction or control, the 3 prosecution shall provide a complete copy of the electronically created 4 or stored information from the device or account or other source. 5 [(iii)] (C) If possession of such electronically created or stored 6 information would be a crime under New York state or federal law, the 7 prosecution shall make those portions of the electronically created or 8 stored information that are not criminal to possess available as speci- 9 fied under this paragraph and shall afford counsel for the defendant 10 access to inspect contraband portions at a supervised location that 11 provides regular and reasonable hours for such access, such as a 12 prosecutor's office, police station, or court. Any delay in counsel for 13 the defendant's access to contraband portions of such materials caused 14 by counsel for such defendant shall be excludable from chargeable time 15 as defined in subdivision four of section 30.30 of this chapter. 16 [(iv)] (D) This paragraph shall not be construed to alter or in any 17 way affect the right to be free from unreasonable searches and seizures 18 or such other rights a suspect or defendant may derive from the state 19 constitution or the United States constitution. If in the exercise of 20 reasonable diligence the information under this paragraph is not avail- 21 able for disclosure within the time period required by subdivision one 22 of section 245.10 of this article, that period shall be stayed without 23 need for a motion pursuant to subdivision two of section 245.70 of this 24 article, except that the prosecution shall notify the defendant in writ- 25 ing that such information has not been disclosed, and such disclosure 26 shall be made as soon as practicable and not later than [forty-five27calendar days before the first scheduled trial date] the end of the time 28 period under paragraph (c) of subdivision one of section 245.10 of this 29 article, unless an order is obtained pursuant to section 245.70 of this 30 article. 31 (b) Non-material information: 32 (i) The names and adequate contact information for all persons other 33 than law enforcement personnel whom the prosecutor knows to have 34 evidence or information relevant to any offense charged or to any poten- 35 tial defense thereto, including a designation by the prosecutor as to 36 which of such persons may be called as witnesses. Nothing in this para- 37 graph shall require the disclosure of physical addresses; provided, 38 however, upon a motion and good cause shown the court may direct the 39 disclosure of a physical address. Information under this subdivision 40 relating to the identity of a 911 caller, the victim or witness of an 41 offense defined under article one hundred thirty or section 230.34 or 42 230.34-a of the penal law, any other victim or witness of a crime where 43 the defendant has substantiated affiliation with a criminal enterprise 44 as defined in subdivision three of section 460.10 of the penal law, or a 45 confidential informant may be withheld, and redacted from discovery 46 materials, without need for a motion pursuant to section 245.70 of this 47 article; provided that the prosecution shall notify the defendant in 48 writing that such information has not been disclosed, unless the court 49 rules otherwise for good cause shown. 50 (ii) The name and work affiliation of all law enforcement personnel 51 whom the prosecutor knows to have evidence or information relevant to 52 any offense charged or to any potential defense thereto, including a 53 designation by the prosecutor as to which of such persons may be called 54 as witnesses. Information under this subdivision relating to undercover 55 personnel may be withheld, and redacted from discovery materials, with- 56 out need for a motion pursuant to section 245.70 of this article;A. 7033 9 1 provided that the prosecution shall notify the defendant in writing that 2 such information has not been disclosed, unless the court rules other- 3 wise for good cause shown. 4 (iii) A list of the source and approximate quantity of other 5 recordings, and their general subject matter if known. The defendant 6 shall have the right upon request to obtain recordings not previously 7 disclosed. The prosecution shall disclose the requested materials as 8 soon as practicable and not less than fifteen calendar days after the 9 defendant's request, unless an order is obtained pursuant to section 10 245.70 of this article. The prosecution may withhold the names and 11 identifying information of any person who contacted 911 without the need 12 for a protective order pursuant to section 245.70 of this article, 13 provided, however, that the defendant may move the court for disclosure. 14 If the prosecution intends to call such person as a witness at a trial 15 or hearing, the prosecution shall disclose the name and contact informa- 16 tion of such witness no later than fifteen days before such trial or 17 hearing, or as soon as practicable. 18 (iv) Any photographs and drawings made or completed by a public serv- 19 ant engaged in law enforcement activity, or which were made by a person 20 whom the prosecutor intends to call as a witness at trial or a pre-trial 21 hearing that are relevant to the subject matter of the case and were not 22 turned over pursuant to paragraph (a) of this subdivision. 23 (v) A copy of all electronically created or stored information seized 24 or obtained by or on behalf of law enforcement from: (A) the defendant 25 as described in subparagraph (ii) of this paragraph; or (B) a source 26 other than the defendant which is relevant to the subject matter of the 27 case and not turned over pursuant to paragraph (a) of this subdivision. 28 (vi) All tangible property that relates to the subject matter of the 29 case that was not turned over pursuant to paragraph (a) of this subdivi- 30 sion. If in the exercise of reasonable diligence the prosecutor has not 31 formed an intention within the time periods specified in subdivision one 32 of section 245.10 of this article that an item under this subdivision 33 will be introduced at trial or a pre-trial hearing, the prosecution 34 shall notify the defendant in writing, and the time period in which to 35 designate items as exhibits shall be stayed without need for a motion 36 pursuant to subdivision two of section 245.70 of this article; but the 37 disclosure shall be made as soon as practicable and subject to the 38 continuing duty to disclose in section 245.60 of this article. 39 (c) Impeachment material: 40 (i) Name, business address, current curriculum vitae, a list of publi- 41 cations, and a list of proficiency tests and results administered or 42 taken within the past ten years of each expert witness whom the prosecu- 43 tor intends to call as a witness at trial or a pre-trial hearing, and 44 all reports prepared by the expert that pertain to the case, or if no 45 report is prepared, a written statement of the facts and opinions to 46 which the expert is expected to testify and a summary of the grounds for 47 each opinion. This paragraph does not alter or in any way affect the 48 procedures, obligations or rights set forth in section 250.10 of this 49 title. If in the exercise of reasonable diligence this information is 50 unavailable for disclosure within the time period specified in subdivi- 51 sion one of section 245.10 of this article, that period shall be stayed 52 without need for a motion pursuant to subdivision two of section 245.70 53 of this article; except that the prosecution shall notify the defendant 54 in writing that such information has not been disclosed, and such 55 disclosure shall be made as soon as practicable and not later than sixty 56 calendar days before the first scheduled trial date, unless an order isA. 7033 10 1 obtained pursuant to section 245.70 of this article. When the prose- 2 cution's expert witness is being called in response to disclosure of an 3 expert witness by the defendant, the court shall alter a scheduled trial 4 date, if necessary, to allow the prosecution thirty calendar days to 5 make the disclosure and the defendant thirty calendar days to prepare 6 and respond to the new materials. 7 (ii) A summary of all promises, rewards and inducements made to, or in 8 favor of, persons who may be called as witnesses, as well as requests 9 for consideration by persons who may be called as witnesses and copies 10 of all documents relevant to a promise, reward or inducement. 11 (iii) A complete record of judgments of conviction for all defendants 12 and all persons designated as potential prosecution witnesses pursuant 13 to this paragraph, other than those witnesses who are experts. 14 (iv) When it is known to the prosecution, the existence of any pending 15 criminal action against all persons designated as potential prosecution 16 witnesses pursuant to paragraph (b) of this subdivision. 17 (v) In any prosecution alleging a violation of the vehicle and traffic 18 law, where the defendant is charged by indictment, superior court infor- 19 mation, prosecutor's information, information, or simplified informa- 20 tion, all records of calibration, certification, inspection, repair or 21 maintenance of machines and instruments utilized to perform any scien- 22 tific tests and experiments, including but not limited to any test of a 23 person's breath, blood, urine or saliva, for the period of six months 24 prior and six months after such test was conducted, including the 25 records of gas chromatography related to the certification of all refer- 26 ence standards and the certification certificate, if any, held by the 27 operator of the machine or instrument. The time period required by 28 subdivision one of section 245.10 of this article shall not apply to the 29 disclosure of records created six months after a test was conducted, but 30 such disclosure shall be made as soon as practicable and in any event, 31 the earlier of fifteen days following receipt, or fifteen days before 32 the first scheduled trial date. 33 2. Duties of the prosecution. The prosecutor shall make a diligent, 34 good faith effort to ascertain the existence of material or information 35 discoverable under subdivision one of this section and to cause such 36 material or information to be made available for discovery where it 37 exists but is not within the prosecutor's possession, custody or 38 control; provided that the prosecutor shall not be required to obtain by 39 subpoena duces tecum material or information which the defendant may 40 thereby obtain. For purposes of subdivision one of this section, all 41 items and information related to the prosecution of a charge in the 42 possession of any New York state or local police or law enforcement 43 agency shall be deemed to be in the possession of the prosecution. The 44 prosecution shall also identify any laboratory having contact with 45 evidence related to the prosecution of a charge. This subdivision shall 46 not require the prosecutor to ascertain the existence of witnesses not 47 known to the police or another law enforcement agency, or the written or 48 recorded statements thereof, under subparagraph (iii) of paragraph [(c)] 49 (a) or [(e)] subparagraph (i) of paragraph (b) of subdivision one of 50 this section. 51 4. Reciprocal discovery for the prosecution. (a) The defendant shall, 52 subject to constitutional limitations, disclose to the prosecution, and 53 permit the prosecution to discover, inspect, copy or photograph, any 54 material and relevant evidence within the defendant's or counsel for the 55 defendant's possession or control that is discoverable under [paragraphs56(f), (g), (h), (j), (l) and (o)] subparagraphs (iv), (v), (vi), (viii)A. 7033 11 1 or (xii) of paragraph (a), subparagraphs (iii), (iv), or (vi) of para- 2 graph (b), or subparagraphs (i) or (ii) of paragraph (c) of subdivision 3 one of this section, which the defendant intends to introduce at trial 4 or a pre-trial hearing, and the names, addresses, birth dates, and all 5 statements, written or recorded or summarized in any writing or record- 6 ing, of those persons other than the defendant whom the defendant 7 intends to call as witnesses at trial or a pre-trial hearing. 8 (b) Disclosure of the name, address, birth date, and all statements, 9 written or recorded or summarized in any writing or recording, of a 10 person whom the defendant intends to call as a witness for the sole 11 purpose of impeaching a prosecution witness is not required until after 12 the prosecution witness has testified at trial. 13 (c) If in the exercise of reasonable diligence the reciprocally 14 discoverable information under subparagraphs (iv) or (xii) paragraph 15 [(f) or (o)] (a), subparagraph (vi) of paragraph (b), or subparagraph 16 (i) of paragraph (c) of subdivision one of this section is unavailable 17 for disclosure within the time period specified in subdivision two of 18 section 245.10 of this article, such time period shall be stayed without 19 need for a motion pursuant to subdivision two of section 245.70 of this 20 article; but the disclosure shall be made as soon as practicable and 21 subject to the continuing duty to disclose in section 245.60 of this 22 article. 23 5. Stay of automatic discovery; remedies and sanctions. Section 245.10 24 and [subdivisions] paragraphs (a), (b) and (c) of subdivision one[, two,25three] and subdivision four of this section shall have the force and 26 effect of a court order, and failure to provide discovery pursuant to 27 such section or subdivision may result in application of any remedies or 28 sanctions permitted for non-compliance with a court order under section 29 245.80 of this article. However, if in the judgment of either party good 30 cause exists for declining to make any of the disclosures set forth 31 above, such party may move for a protective order pursuant to section 32 245.70 of this article and production of the item shall be stayed pend- 33 ing a ruling by the court. The opposing party shall be notified in writ- 34 ing that information has not been disclosed under a particular section. 35 When some parts of material or information are discoverable but in the 36 judgment of a party good cause exists for declining to disclose other 37 parts, the discoverable parts shall be disclosed and the disclosing 38 party shall give notice in writing that non-discoverable parts have been 39 withheld. 40 § 4. Subdivision 1 of section 255.20 of the criminal procedure law, as 41 amended by section 7 of part LLL of chapter 59 of the laws of 2019, is 42 amended to read as follows: 43 1. Except as otherwise expressly provided by law, whether the defend- 44 ant is represented by counsel or elects to proceed pro se, all pre-trial 45 motions shall be served or filed within [forty-five days after arraign-46ment] the time periods as defined by section 245.10 of this title and 47 before commencement of trial, or within such additional time as the 48 court may fix upon application of the defendant made prior to entry of 49 judgment. [In an action in which either (a) material or information has50been disclosed pursuant to paragraph (m) or (n) of subdivision one of51section 245.20 of this title, (b) an eavesdropping warrant and applica-52tion have been furnished pursuant to section 700.70 of this chapter, or53(c) a notice of intention to introduce evidence has been served pursuant54to section 710.30 of this chapter, such period shall be extended until55forty-five days after the last date of such service. If the defendant is56not represented by counsel and has requested an adjournment to obtainA. 7033 12 1counsel or to have counsel assigned, such forty-five day period shall2commence on the date counsel initially appears on defendant's behalf.] 3 § 5. This act shall take effect on the sixtieth day after it shall 4 have become a law.
