STATE OF NEW YORK
        ________________________________________________________________________

                                          10049

                   IN ASSEMBLY

                                       May 2, 2024
                                       ___________

        Introduced by M. of A. HEVESI -- read once and referred to the Committee
          on Children and Families

        AN  ACT to amend the family court act and the judiciary law, in relation
          to  the  discovery  provisions  applicable  to  juvenile   delinquency
          proceedings  in  family court; and to repeal certain provisions of the
          family court act relating thereto

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. Sections 331.1, 331.2, 331.3, 331.4, 331.5, 331.6 and 331.7
     2  of the family court act are REPEALED.
     3    §  2.  The family court act is amended by adding thirteen new sections
     4  331.1, 331.2, 331.3, 331.4, 331.5, 331.6, 331.7, 331.8,  331.9,  331.10,
     5  331.11, 331.12 and 331.13 to read as follows:
     6    §  331.1.  Initial  appearance.  1.  Disclosure.  At  the respondent's
     7  initial appearance, as defined in section 320.1 of this article, if  the
     8  court  directs  detention pursuant to subdivision three of section 320.5
     9  of this article, the presentment agency shall forthwith disclose to  the
    10  respondent, and permit the respondent to discover, inspect, copy, photo-
    11  graph  and  test,  all items and information set forth in paragraphs (a)
    12  through (u) of subdivision one of section 331.3 of this  part  that  are
    13  within  the  presentment  agency's possession at the time of the initial
    14  appearance. If the court does  not  direct  detention,  the  presentment
    15  agency shall disclose to the respondent:
    16    (a)  any  police  or  other law enforcement agency reports and written
    17  witness statements  relating  to  the  juvenile  delinquency  proceeding
    18  against   the  respondent  that  are  within  the  presentment  agency's
    19  possession at that time;
    20    (b)  electronic  recordings  relating  to  the  juvenile   delinquency
    21  proceeding  against the respondent that are within the presentment agen-
    22  cy's possession at that time, in accordance with paragraph (g) of subdi-
    23  vision one of section 331.3 of this part; and
    24    (c) exculpatory information known to the presentment  agency  at  that
    25  time.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05294-02-4

        A. 10049                            2

     1    (d) where the charges were removed from a youth part pursuant to arti-
     2  cle  seven  hundred  twenty-five  of  the criminal procedure law and the
     3  attorney for the child did not represent the  respondent  in  the  youth
     4  part, all discovery material previously provided pursuant to article two
     5  hundred forty-five of the criminal procedure law.
     6    2. Copy of records. If in the exercise of reasonable diligence and due
     7  to  the  limited  availability  of  resources for downloading or copying
     8  recordings, a copy of an electronic recording  discoverable  under  this
     9  section  is  unavailable at the initial appearance, a copy shall be made
    10  and disclosed to the respondent as soon as  practicable  but  not  later
    11  than five calendar days after the initial appearance, provided, however,
    12  that  if  the respondent is in detention, a copy shall be made not later
    13  than three days after the initial appearance.    Portions  of  materials
    14  under  this section claimed to be non-discoverable may be withheld pend-
    15  ing a prompt request by the presentment agency for a  determination  and
    16  ruling of the court under section 331.11 of this part; but the discover-
    17  able portions of such materials shall be disclosed to the extent practi-
    18  cable.
    19    §  331.2.  Timing  of  discovery  after  the  initial  appearance.  1.
    20  Presentment agency's performance of  obligations.  (a)  The  presentment
    21  agency shall perform its initial discovery obligations under subdivision
    22  one  of  section 331.3 of this part as soon as practicable but not later
    23  than fifteen calendar days after the respondent's initial appearance or,
    24  if the respondent is in detention, not later than three  days  prior  to
    25  the  first  scheduled fact-finding hearing date, or seven days after the
    26  initial appearance, whichever is earlier. Portions of materials  claimed
    27  to  be  non-discoverable  may  be  withheld  pending a determination and
    28  ruling of the court under section 331.11 of this part; but the  respond-
    29  ent shall be notified in writing that information has not been disclosed
    30  under  a  particular  subdivision  of this section, and the discoverable
    31  portions of such materials shall be disclosed to the extent practicable.
    32  When the discoverable materials are exceptionally voluminous,  the  time
    33  periods  in  this  paragraph  may  be  stayed by up to an additional ten
    34  calendar days or, if the respondent is in detention, up to an additional
    35  period of three days without need for a motion pursuant  to  subdivision
    36  two of section 331.11 of this part.
    37    (b)  The  presentment  agency shall perform its supplemental discovery
    38  obligations under subdivision three of section 331.3  of  this  part  as
    39  soon  as  practicable  but not later than fifteen calendar days prior to
    40  the first scheduled fact-finding hearing date, unless the respondent  is
    41  in  detention,  in  which  case the presentment agency shall fulfill its
    42  supplemental discovery obligations not later than three  days  prior  to
    43  the first scheduled fact-finding hearing date.
    44    2.  Respondent's  performance  of  obligations.  The  respondent shall
    45  perform his or her  discovery  obligations  under  subdivision  four  of
    46  section  331.3  of  this  part  not later than twenty-five calendar days
    47  after being served with the presentment agency's certificate of  compli-
    48  ance  pursuant  to  subdivision two of section 331.6 of this part or not
    49  later than three days prior to the first scheduled fact-finding  hearing
    50  date, whichever is earlier. Portions of materials claimed to be non-dis-
    51  coverable  may  be  withheld  pending  a determination and ruling of the
    52  court under section 331.11 of this  part;  but  the  presentment  agency
    53  shall  be  notified  in  writing that information has not been disclosed
    54  under a particular section.
    55    3. Timing adjustment. The time periods in this section may be adjusted
    56  by the court upon a finding of good cause based upon the  needs  of  the

        A. 10049                            3

     1  case, the detention status of the respondent and the need for a fair and
     2  expeditious resolution of the proceeding.
     3    § 331.3. Automatic discovery. 1. Initial discovery for the respondent.
     4  The  presentment agency shall disclose to the respondent, and permit the
     5  respondent to discover, inspect, copy, photograph and  test,  all  items
     6  and information that relate to the subject matter of the case and are in
     7  the  possession, custody or control of the presentment agency or persons
     8  under the presentment agency's direction or control, including  but  not
     9  limited to:
    10    (a)  All written or recorded statements, and the substance of all oral
    11  statements, made by the respondent or a co-respondent to a public  serv-
    12  ant engaged in law enforcement activity or to a person then acting under
    13  his or her direction or in cooperation with him or her.
    14    (b)  All  transcripts  of  the testimony of a person who has testified
    15  before a grand jury in a related criminal proceeding, including but  not
    16  limited  to  the  respondent  or a co-respondent. The presentment agency
    17  shall request that the prosecutor of the matter before  the  grand  jury
    18  provide  a transcript of the testimony and, upon receipt of the request,
    19  the prosecutor shall promptly apply to the appropriate  criminal  court,
    20  with  written notice to the presentment agency and the respondent, for a
    21  written order pursuant to section three hundred twenty-five of the judi-
    22  ciary law releasing a transcript to the  presentment  agency;  provided,
    23  however,  that  the  transcripts of the grand jury proceedings in a case
    24  removed from the youth part pursuant to article  seven  hundred  twenty-
    25  five  of  the criminal procedure law shall be annexed to the petition or
    26  transferred to the family court in accordance with subdivision seven  of
    27  section  311.1  of  this article. If in the exercise of reasonable dili-
    28  gence, and due to the limited availability of transcription resources, a
    29  transcript is unavailable for disclosure within the time  period  speci-
    30  fied  in subdivision one of section 331.2 of this part, such time period
    31  may be stayed by up to an additional fifteen calendar days  or,  if  the
    32  respondent  is in detention, an additional period of three days, without
    33  need for a motion pursuant to subdivision two of section 331.11 of  this
    34  part;  provided,  however, that such disclosure shall be made as soon as
    35  practicable and not later than fifteen calendar days prior to the  first
    36  scheduled  fact-finding  hearing  date,  unless  the  respondent  is  in
    37  detention, in which case such disclosure shall be made  not  later  than
    38  three  days  prior  to  the  first  scheduled fact-finding hearing date,
    39  unless an order is obtained pursuant to section  331.11  of  this  part.
    40  When  the  court  is  required  to  review  grand  jury transcripts, the
    41  presentment agency shall disclose such transcripts to  the  court  expe-
    42  ditiously  upon  receipt  by  such agency, notwithstanding the otherwise
    43  applicable time periods for disclosure in this part.
    44    (c) The names of, and adequate alternative  contact  information  for,
    45  all  persons  other  than law enforcement personnel whom the presentment
    46  agency knows to have evidence or information  relevant  to  any  act  of
    47  juvenile  delinquency  charged  or  to  any  potential  defense thereto,
    48  including a designation by the presentment agency as to which  of  those
    49  persons  may  be  called  as  witnesses. Nothing in this paragraph shall
    50  require the disclosure of physical addresses; provided, however, upon  a
    51  motion  and  good  cause  shown the court may direct the disclosure of a
    52  physical residence. Information under this  subdivision  relating  to  a
    53  confidential  informant  may  be  withheld,  and redacted from discovery
    54  materials, without need for a motion pursuant to section 331.11 of  this
    55  part;  but the presentment agency shall notify the respondent in writing

        A. 10049                            4

     1  that such information has not been disclosed,  unless  the  court  rules
     2  otherwise for good cause shown.
     3    (d)  The  name  and  work affiliation of all law enforcement personnel
     4  whom the presentment agency knows to have evidence or information  rele-
     5  vant to any offense charged or to any potential defense thereto, includ-
     6  ing a designation by the presentment agency as to which of those persons
     7  may  be called as witnesses. Information under this subdivision relating
     8  to undercover personnel may be withheld,  and  redacted  from  discovery
     9  materials,  without need for a motion pursuant to section 331.11 of this
    10  part; but the presentment agency shall notify the respondent in  writing
    11  that  such  information  has  not been disclosed, unless the court rules
    12  otherwise for good cause shown.
    13    (e) All statements, written or recorded or summarized in  any  writing
    14  or  recording, made by persons who have evidence or information relevant
    15  to any offense charged or to any potential  defense  thereto,  including
    16  all  police  reports,  notes  of police and other investigators, and law
    17  enforcement agency reports. This  provision  also  includes  statements,
    18  written  or  recorded  or  summarized  in  any  writing or recording, by
    19  persons to be called as witnesses at pre-fact-finding hearings.
    20    (f) Expert opinion evidence, including  the  name,  business  address,
    21  current  curriculum  vitae,  a list of publications, and all proficiency
    22  tests and results administered or taken in  the  current  employment  or
    23  within  the  past ten years, whichever is longer, of each expert witness
    24  whom the presentment agency intends to call as a witness  at  the  fact-
    25  finding  hearing  or  at  a  pre-trial  motion  hearing, and all reports
    26  prepared by the expert that pertain to the case,  or  if  no  report  is
    27  prepared,  a  written  statement  of the facts and opinions to which the
    28  expert is expected to testify and a summary  of  the  grounds  for  each
    29  opinion.  If in the exercise of reasonable diligence this information is
    30  unavailable for disclosure within the time period specified in  subdivi-
    31  sion  one  of  section  331.2  of this part, that period shall be stayed
    32  without need for a motion pursuant to subdivision two of section  331.11
    33  of  this  part;  except  that  the  presentment  agency shall notify the
    34  respondent in writing that such information has not been disclosed,  and
    35  such  disclosure shall be made as soon as practicable and not later than
    36  fifteen calendar days prior to the first scheduled fact-finding  hearing
    37  date,  or,  if the respondent is in detention, not later than three days
    38  prior to the first scheduled fact-finding hearing date, unless an  order
    39  is  obtained  pursuant to section 331.11 of this part. When the present-
    40  ment agency's expert witness is being called in response  to  disclosure
    41  of  an  expert witness by the respondent, the court shall alter a sched-
    42  uled fact-finding hearing date, if necessary, to allow  the  presentment
    43  agency  fifteen  calendar days to make the disclosure and the respondent
    44  fifteen calendar days to prepare  and  respond  to  the  new  materials,
    45  unless the respondent is in detention, in which case the court may alter
    46  the  scheduled  fact-finding  hearing  date,  if necessary, to allow the
    47  presentment agency an additional three days to make the  disclosure  and
    48  the respondent three days to prepare and respond to the new materials.
    49    (g) All tapes or other electronic recordings, including all electronic
    50  recordings  of  911  telephone calls made or received in connection with
    51  the alleged incident of juvenile delinquency, and a designation  by  the
    52  presentment  agency  as  to which of the recordings under this paragraph
    53  the presentment agency intends to introduce at fact-finding hearing or a
    54  pre-trial motion hearing. If the discoverable materials under this para-
    55  graph exceed ten hours in  total  length,  the  presentment  agency  may
    56  disclose  only the recordings that it intends to introduce at fact-find-

        A. 10049                            5

     1  ing hearing or a pre-fact-finding hearing, along  with  a  list  of  the
     2  source  and  approximate  quantity of other recordings and their general
     3  subject matter if known, and the respondent shall have  the  right  upon
     4  request  to  obtain recordings not previously disclosed. The presentment
     5  agency shall disclose the requested materials as soon as practicable and
     6  not less than fifteen calendar days after the respondent's request,  or,
     7  if  the  respondent  is in detention, not less than three days after the
     8  respondent's request, unless an order is obtained  pursuant  to  section
     9  331.11 of this part.
    10    (h) All photographs and drawings made or completed by a public servant
    11  engaged in law enforcement activity, or which were made by a person whom
    12  the presentment agency intends to call as a witness at fact-finding or a
    13  pre-trial  motion  hearing  or which relate to the subject matter of the
    14  proceeding.
    15    (i) All photographs, photocopies and reproductions made by or  at  the
    16  direction  of  law  enforcement  personnel  of any property prior to its
    17  release.
    18    (j) All reports, documents, records, data, calculations  or  writings,
    19  including but not limited to preliminary tests and screening results and
    20  bench  notes and analyses performed or stored electronically, concerning
    21  physical or mental examinations, or scientific tests or  experiments  or
    22  comparisons,  relating to the juvenile delinquency proceeding which were
    23  made by or at the request or direction of a public  servant  engaged  in
    24  law  enforcement  activity,  or  which  were  made  by a person whom the
    25  presentment agency intends to call as a witness  at  fact-finding  or  a
    26  pre-trial  motion  hearing,  or  which the presentment agency intends to
    27  introduce at fact-finding or a pre-trial motion  hearing.    Information
    28  under  this  paragraph  also includes, but is not limited to, laboratory
    29  information management system records relating to  such  materials,  any
    30  preliminary  or  final  findings  of non-conformance with accreditation,
    31  industry or governmental standards  or  laboratory  protocols,  and  any
    32  conflicting  analyses  or  results by laboratory personnel regardless of
    33  the laboratory's final analysis or results. If  the  presentment  agency
    34  submitted  one or more items for testing to, or received results from, a
    35  forensic science laboratory or similar entity not under the  presentment
    36  agency's  direction  or  control,  the  court on motion of a party shall
    37  issue subpoenas or orders to such laboratory or entity to cause  materi-
    38  als under this paragraph to be made available for disclosure.
    39    (k)  All  evidence  and  information, including that which is known to
    40  police or other law enforcement  agencies  acting  on  the  government's
    41  behalf  in the case, that tends to: (i) negate the respondent's guilt as
    42  to a charged act of juvenile delinquency; (ii) reduce the degree  of  or
    43  mitigate  the  respondent's  culpability as to a charged act of juvenile
    44  delinquency; (iii) support a potential defense to a charged act of juve-
    45  nile delinquency; (iv) impeach the credibility of a testifying  present-
    46  ment agency witness; (v) undermine evidence of the respondent's identity
    47  as  a perpetrator of a charged act of juvenile delinquency; (vi) provide
    48  a basis for a  motion  to  suppress  evidence;  or  (vii)  mitigate  the
    49  restrictiveness  of  the disposition. Information under this subdivision
    50  shall be disclosed whether or not such information is recorded in tangi-
    51  ble form and irrespective of whether the presentment agency credits  the
    52  information. The presentment agency shall disclose the information expe-
    53  ditiously  upon  its  receipt  and  shall  not delay disclosure if it is
    54  obtained earlier than the time period for disclosure in subdivision  one
    55  of section 331.2 of this part.

        A. 10049                            6

     1    (l)  A summary of all promises, rewards and inducements made to, or in
     2  favor of, persons who may be called as witnesses, as  well  as  requests
     3  for  consideration  by persons who may be called as witnesses and copies
     4  of all documents relevant to a promise, reward or inducement.
     5    (m)  A  list  of  all  tangible  objects  obtained  from, or allegedly
     6  possessed by, the respondent or a co-respondent. The list shall  include
     7  a  designation  by the presentment agency as to which objects were phys-
     8  ically or constructively possessed by the respondent and were  recovered
     9  during  a search or seizure by a public servant or an agent thereof, and
    10  which tangible objects were recovered by a public servant  or  an  agent
    11  thereof  after  allegedly  being  abandoned  by  the  respondent. If the
    12  presentment agency intends to prove the respondent's possession  of  any
    13  tangible  objects  by means of a statutory presumption of possession, it
    14  shall designate such intention as to each  such  object.  If  reasonably
    15  practicable,  the  presentment  agency shall also designate the location
    16  from which each tangible object was recovered. There is also a right  to
    17  inspect, copy, photograph and test the listed tangible objects.
    18    (n)  Whether  a  search  warrant  has  been executed and all documents
    19  relating thereto, including but not limited to the warrant, the  warrant
    20  application,  supporting  affidavits, a police inventory of all property
    21  seized under the warrant, and a transcript of  all  testimony  or  other
    22  oral communications offered in support of the warrant application.
    23    (o)  All  tangible  property that relates to the subject matter of the
    24  case, along with a designation of which  items  the  presentment  agency
    25  intends  to introduce in its case-in-chief at fact-finding hearing or at
    26  a pre-trial motion hearing. If in the exercise of  reasonable  diligence
    27  the presentment agency has not formed an intention within the time peri-
    28  od  specified  in  subdivision one of section 331.2 of this part that an
    29  item under this paragraph will be introduced at fact-finding hearing  or
    30  at  a  pre-trial motion hearing, the presentment agency shall notify the
    31  respondent in writing, and the time period in which to  designate  items
    32  as exhibits shall be stayed without need for a motion pursuant to subdi-
    33  vision  two  of section 331.11 of this part; but the disclosure shall be
    34  made as soon as practicable, but not later than  fifteen  calendar  days
    35  prior  to  the  first  scheduled  fact-finding  hearing date, unless the
    36  respondent is in detention, in which case such disclosure shall be  made
    37  no later than three days prior to the first scheduled fact-finding hear-
    38  ing date. All property under this paragraph is subject to the continuing
    39  duty to disclose pursuant to section 331.9 of this part.
    40    (p) The results of complete checks of juvenile delinquency fingerprint
    41  records  or  criminal  history  records,  as  applicable, as well as any
    42  history of juvenile delinquency adjudications known to  the  presentment
    43  agency and not sealed, for all respondents and all persons designated as
    44  potential presentment agency witnesses pursuant to paragraph (c) of this
    45  subdivision, other than those witnesses who are experts.
    46    (q)  When  it is known to the presentment agency, the existence of any
    47  pending criminal action against  all  persons  designated  as  potential
    48  presentment  agency witnesses pursuant to paragraph (c) of this subdivi-
    49  sion.
    50    (r) The approximate date, time and place of the  offense  or  offenses
    51  charged and of the respondent's seizure and arrest.
    52    (s) In any juvenile delinquency proceeding alleging a violation of the
    53  vehicle  and  traffic  law,  all  records of calibration, certification,
    54  inspection, repair or maintenance of machines and  instruments  utilized
    55  to  perform  any  scientific  tests  and  experiments, including but not
    56  limited to any test of a person's breath, blood, urine  or  saliva,  for

        A. 10049                            7

     1  the  period  of  six  months  prior  and  six months after such test was
     2  conducted, including the records of gas chromatography  related  to  the
     3  certification  of  all reference standards and the certification certif-
     4  icate, if any, held by the operator of the machine or instrument.
     5    (t)  Any  presentment agency alleging a violation of section 156.05 or
     6  156.10 of the penal law, the  time,  place  and  manner  such  violation
     7  occurred.
     8    (u)  (i)  A  copy  of all electronically created or stored information
     9  seized or obtained by or on behalf of  law  enforcement  from:  (A)  the
    10  respondent as described in subparagraph (ii) of this paragraph; or (B) a
    11  source  other than the respondent which relates to the subject matter of
    12  the proceeding.
    13    (ii) If the electronically created or  stored  information  originates
    14  from  a  device, account, or other electronically stored source that the
    15  presentment agency believes the respondent  owned,  maintained,  or  had
    16  lawful access to and is within the possession, custody or control of the
    17  presentment  agency  or persons under the presentment agency's direction
    18  or control, the presentment agency shall provide a complete copy of  the
    19  electronically  created or stored information from the device or account
    20  or other source, and a designation by the presentment agency as to which
    21  portions it intends to introduce.
    22    (iii) If possession of such electronically created or stored  informa-
    23  tion  would  be a crime if committed by an adult under New York state or
    24  federal law, the presentment agency shall make  those  portions  of  the
    25  electronically  created  or  stored information that are not criminal to
    26  possess available as specified under this  paragraph  and  shall  afford
    27  counsel  for  the  respondent access to inspect contraband portions at a
    28  supervised location that provides regular and reasonable hours for  such
    29  access, such as a presentment agency's office, police station, or court.
    30    (iv)  This  paragraph  shall  not  be construed to alter or in any way
    31  affect the right to be free from unreasonable searches and  seizures  or
    32  such  other  rights  a  suspect  or respondent may derive from the state
    33  constitution or the United States constitution. If in  the  exercise  of
    34  reasonable  diligence the information under this paragraph is not avail-
    35  able for disclosure within the time period required by  subdivision  one
    36  of  section 331.2 of this part, that period shall be stayed without need
    37  for a motion pursuant to subdivision two of section 331.11 of this part,
    38  except that the presentment agency shall notify the respondent in  writ-
    39  ing  that  such  information has not been disclosed, and such disclosure
    40  shall be made as soon as practicable and not later than fifteen calendar
    41  days prior to the first scheduled fact-finding hearing date or,  if  the
    42  respondent  is in detention, such disclosure shall be made no later than
    43  three days prior to  the  first  scheduled  fact-finding  hearing  date,
    44  unless an order is obtained pursuant to section 331.11 of this part.
    45    2. Duties of the presentment agency. The presentment agency shall make
    46  a  diligent, good faith effort to ascertain the existence of material or
    47  information discoverable under subdivision one of this  section  and  to
    48  cause  such  material  or information to be made available for discovery
    49  where it exists but is not within the presentment  agency's  possession,
    50  custody  or  control;  provided that the presentment agency shall not be
    51  required to obtain by subpoena duces tecum material or information which
    52  the respondent may thereby obtain. For purposes of  subdivision  one  of
    53  this section, all items and information related to the presentment agen-
    54  cy  of  a charge in the possession of any New York state or local police
    55  or law enforcement agency, and any information in the  possession  of  a
    56  laboratory having contact with evidence related to the presentment agen-

        A. 10049                            8

     1  cy  of a charge, shall be deemed to be in the possession of the present-
     2  ment agency. This subdivision shall not require the  presentment  agency
     3  to  ascertain  the  existence  of  witnesses  not known to the police or
     4  another  law  enforcement  agency, or the written or recorded statements
     5  thereof, under paragraph (c) or (e) of subdivision one of this section.
     6    3. Supplemental discovery for the respondent. The  presentment  agency
     7  shall  disclose  to  the respondent a list of all misconduct and acts of
     8  juvenile delinquency of the respondent  not  charged  in  the  petition,
     9  which  the presentment agency intends to use at fact-finding hearing for
    10  purposes of (a) impeaching the credibility of the respondent, or (b)  as
    11  substantive  proof of any material issue in the proceeding. In addition,
    12  the presentment agency shall designate whether it intends  to  use  each
    13  listed act for impeachment and/or as substantive proof.
    14    4. Reciprocal discovery for the presentment agency. (a) The respondent
    15  shall,  subject  to constitutional limitations, disclose to the present-
    16  ment agency, and permit the presentment  agency  to  discover,  inspect,
    17  copy  or  photograph,  any  material  and  relevant  evidence within the
    18  respondent's or counsel for the respondent's possession or control  that
    19  is  discoverable  under  paragraphs  (f),  (g), (h), (j), (l) and (o) of
    20  subdivision one of this section, which the respondent intends to  intro-
    21  duce  at  fact-finding  or  a  pre-trial  motion hearing, and the names,
    22  addresses, birth dates, and  all  statements,  written  or  recorded  or
    23  summarized  in any writing or recording, of those persons other than the
    24  respondent whom the respondent intends to call  as  witnesses  at  fact-
    25  finding hearing or at a pre-trial motion hearing.
    26    (b)  Disclosure  of the name, address, birth date, and all statements,
    27  written or recorded or summarized in any  writing  or  recording,  of  a
    28  person  whom  the  respondent  intends to call as a witness for the sole
    29  purpose of impeaching a presentment agency witness is not required until
    30  after the presentment agency witness has testified at fact-finding hear-
    31  ing.
    32    (c) If in  the  exercise  of  reasonable  diligence  the  reciprocally
    33  discoverable  information  under paragraph (f) or (o) of subdivision one
    34  of this section is unavailable for disclosure  within  the  time  period
    35  specified  in  subdivision  two of section 331.2 of this part, such time
    36  period shall be stayed without need for a motion pursuant to subdivision
    37  two of section 331.11 of this part; but the disclosure shall be made  as
    38  soon  as  practicable,  provided,  however, that if the respondent is in
    39  detention, such disclosure shall be made no later than three days  prior
    40  to  the  first  scheduled  fact-finding hearing date.   All reciprocally
    41  discoverable information  under  this  subdivision  is  subject  to  the
    42  continuing duty to disclose pursuant to section 331.9 of this part.
    43    5.  Stay  of  automatic  discovery; remedies and sanctions.   Sections
    44  331.1 and 331.2 of this part and subdivisions one, two, three  and  four
    45  of  this  section  shall have the force and effect of a court order, and
    46  failure to provide discovery pursuant to such section or subdivision may
    47  result in application of any remedies or sanctions  permitted  for  non-
    48  compliance  with a court order under section 331.12 of this part. Howev-
    49  er, if in the judgment of either party, good cause exists for  declining
    50  to  make any of the disclosures set forth above, such party may move for
    51  a  protective  order  pursuant  to  section  331.11  of  this  part  and
    52  production  of  the  item shall be stayed pending a ruling by the court.
    53  The opposing party shall be notified in writing that information has not
    54  been disclosed under a particular section.  When some parts of  material
    55  or  information  are  discoverable  but  in the judgment of a party good
    56  cause exists for declining to disclose  other  parts,  the  discoverable

        A. 10049                            9

     1  parts  shall  be disclosed and the disclosing party shall give notice in
     2  writing that non-discoverable parts have been withheld.
     3    6.  Redactions  permitted.  Either  party  may  redact social security
     4  numbers and tax numbers from disclosures under this part.
     5    7. Presumption of openness. There shall be a presumption in  favor  of
     6  disclosure  when  interpreting  sections  331.1, 331.2 and 331.4 of this
     7  part and subdivision one of this section.
     8    § 331.4. Disclosure prior to an admission by the respondent; waiver of
     9  discovery by respondent.  1. Disclosure of crime. Where the  presentment
    10  agency  has  made  an  offer  to accept an admission pursuant to section
    11  321.3 of this article to an act that, if committed by an adult, would be
    12  a crime, the presentment agency shall disclose to  the  respondent,  and
    13  permit  the  respondent to discover, inspect, copy, photograph and test,
    14  all items and information that would be discoverable prior to the  fact-
    15  finding  hearing under subdivision one of section 331.3 of this part and
    16  are in the possession, custody or control of the presentment agency. The
    17  presentment agency shall disclose the discoverable items and information
    18  not less than three calendar days prior to the expiration  date  of  the
    19  offer  by the presentment agency for the respondent to make an admission
    20  or any deadline imposed by the court for acceptance of the offer  of  an
    21  admission.
    22    2.  Timing  of  disclosure.  If the presentment agency does not comply
    23  with the requirements of this  subdivision,  then,  notwithstanding  any
    24  other  provision  of  law,  such  offer shall be deemed available to the
    25  respondent until three calendar days after the  presentment  agency  has
    26  complied,  absent  extraordinary  circumstances  involving  new  adverse
    27  information bearing on the respondent occurring  or  discovered  in  the
    28  interim that, after appropriate notice and an opportunity for a hearing,
    29  are  shown  by  the presentment agency and found by the court. Where the
    30  offer of an admission has lapsed or been withdrawn in light of  non-com-
    31  pliance  by the presentment agency with this subdivision, the respondent
    32  may make a motion alleging  such  non-compliance  and  the  court  shall
    33  consider  the  impact of any non-compliance on the respondent's decision
    34  to accept or reject the offer of an admission. If the court  finds  that
    35  the  non-compliance materially affected the respondent's decision and if
    36  the presentment agency declines to reinstate  the  lapsed  or  withdrawn
    37  plea offer, the court, as a presumptive minimum sanction, shall preclude
    38  the  admission  at trial of any evidence not disclosed as required under
    39  this subdivision.   The court  may  take  other  additional  appropriate
    40  action as necessary to address the non-compliance.
    41    3.  Exception. The rights under this subdivision do not apply to items
    42  or information that are the subject of a protective order under  section
    43  331.11  of  this  part; but if such information tends to be exculpatory,
    44  the court shall reconsider the protective order.
    45    4. Waiver. A respondent may provide a voluntary, knowing and  intelli-
    46  gent  waiver  in the presence of his or her counsel of his or her rights
    47  under this section; but an offer of an admission may not be  conditioned
    48  on such waiver.
    49    § 331.5. Court orders for preservation, access or discovery. 1.  Order
    50  to preserve evidence. At any time, a party may move for a court order to
    51  any individual, agency or other entity in possession, custody or control
    52  of items which relate to the subject matter of the case or are otherwise
    53  relevant,  requiring that such items be preserved for a specified period
    54  of time.  The court shall hear and rule upon such motions expeditiously.
    55  The court may modify or vacate such an order upon a showing that preser-
    56  vation of particular evidence will create significant hardship  to  such

        A. 10049                           10

     1  individual,  agency  or entity, on condition that the probative value of
     2  that evidence is preserved by a specified alternative means.
     3    2.  Order to grant access to premises. At any time, the respondent may
     4  move for a court order to any individual,  agency  or  other  entity  in
     5  possession,  custody  or control of a crime scene or other premises that
     6  relates to the subject matter of the  case  or  is  otherwise  relevant,
     7  requiring  that counsel for the respondent be granted prompt and reason-
     8  able access to inspect, photograph or measure such crime scene or  prem-
     9  ises,  and  that  the  condition  of  the crime scene or premises remain
    10  unchanged in the interim. The  court  shall  consider  the  respondent's
    11  expressed  need  for  access to the premises including the risk that the
    12  respondent will be deprived of evidence or information relevant  to  the
    13  case, the position of any individual or entity with possessory or owner-
    14  ship  rights to the premises, the nature of the privacy interest and any
    15  perceived or actual hardship of the individual or entity with possessory
    16  or ownership rights, and the position of  the  presentment  agency  with
    17  respect  to  any  application  for access to the premises. The court may
    18  deny access to the premises when the probative value of access  to  such
    19  location  has  been or will be preserved by specified alternative means.
    20  If the court grants access to the premises,  the  individual  or  entity
    21  with  ownership  or  possessory  rights  to the premises may request law
    22  enforcement presence at the premises while the respondent's counsel or a
    23  representative thereof is present.
    24    3. Discretionary discovery by order of the court.  The  court  in  its
    25  discretion  may,  upon  a  showing by the respondent that the request is
    26  reasonable and that the respondent is unable without undue  hardship  to
    27  obtain  the substantial equivalent by other means, order the presentment
    28  agency, or any individual, agency or other entity subject to the  juris-
    29  diction of the court, to make available for disclosure to the respondent
    30  any  material  or  information  which potentially relates to the subject
    31  matter of the case and is reasonably likely to be material.
    32    4. Procedure. A motion under this section shall be on  notice  to  any
    33  individual, agency or entity affected by the order. A motion may be made
    34  orally on the record so long as such notice is provided.  The court may,
    35  on  its own or upon request of any individual, agency or entity affected
    36  by the order, modify or vacate the order if compliance would  be  unrea-
    37  sonable  or  will create significant hardship to such individual, agency
    38  or entity. For good cause shown, the court may permit a party seeking or
    39  opposing a discretionary order of discovery under this  subdivision,  or
    40  another  affected individual, agency or entity, to submit papers or, for
    41  good cause shown, testify on the record ex parte or in camera.  For good
    42  cause shown, any such papers and a transcript of such testimony  may  be
    43  sealed and shall constitute a part of the record on appeal.
    44    §  331.6.  Court  ordered procedures to facilitate compliance; certif-
    45  icates of compliance. 1.  Discretion of courts. To facilitate compliance
    46  with this part, and to reduce or streamline litigation of  any  disputes
    47  about discovery, the court in its discretion may issue an order:
    48    (a) requiring that the presentment agency and counsel for the respond-
    49  ent  diligently  confer  to  attempt to reach an accommodation as to any
    50  dispute concerning discovery prior to seeking a ruling from the court;
    51    (b) requiring a discovery compliance conference at  a  specified  time
    52  prior  to the fact-finding hearing between the presentment agency, coun-
    53  sel for all respondents, and the court or its staff;
    54    (c) requiring the presentment agency to file a certificate of  compli-
    55  ance that states that the presentment agency and/or an appropriate named
    56  agent  has  made  reasonable  inquiries of all police officers and other

        A. 10049                           11

     1  persons who have participated in investigating or  evaluating  the  case
     2  about  the  existence  of  any  favorable evidence or information within
     3  paragraph (k) of subdivision one of section 331.3 of this part,  includ-
     4  ing  such  evidence  or  information  that was not reduced to writing or
     5  otherwise memorialized or preserved as evidence, and has  disclosed  any
     6  such information to the respondent; and/or
     7    (d)  requiring  other  measures  or proceedings designed to carry into
     8  effect the goals of this part.
     9    2. Certificates of compliance. (a) When  the  presentment  agency  has
    10  provided  the  discovery required by subdivision one of section 331.3 of
    11  this part, except for any items or information that are the  subject  of
    12  an  order  pursuant  to section 331.11 of this part, it shall serve upon
    13  the respondent and file with the court a certificate of compliance.  The
    14  certificate  of  compliance shall state that, after exercising due dili-
    15  gence and making reasonable inquiries  to  ascertain  the  existence  of
    16  material  and  information  subject to discovery, the presentment agency
    17  has disclosed and made available  all  known  material  and  information
    18  subject  to  discovery.  It  shall  also identify the items provided. If
    19  additional discovery is subsequently provided prior to the  fact-finding
    20  hearing  pursuant  to section 331.9 of this part, a supplemental certif-
    21  icate shall be served upon the respondent and filed with the court iden-
    22  tifying the additional material and information provided.    No  adverse
    23  consequence  to  the  presentment  agency or the prosecutor shall result
    24  from the filing of a certificate of compliance in good  faith;  but  the
    25  court  may  grant  a  remedy  or  sanction  for a discovery violation as
    26  provided in section 331.12 of this part.
    27    (b) When the respondent has provided all discovery required by  subdi-
    28  vision  four  of  section  331.3  of  this part, except for any items or
    29  information that are the subject of an order pursuant to section  331.11
    30  of  this  part, counsel for the respondent shall serve upon the present-
    31  ment agency and file with the court a  certificate  of  compliance.  The
    32  certificate  shall state that, after exercising due diligence and making
    33  reasonable inquiries to ascertain the existence of material and informa-
    34  tion subject to discovery, counsel for the respondent has disclosed  and
    35  made  available all known material and information subject to discovery.
    36  It shall also identify the items provided. If  additional  discovery  is
    37  subsequently  provided  prior to trial pursuant to section 331.9 of this
    38  part, a supplemental certificate shall be served  upon  the  presentment
    39  agency  and filed with the court identifying the additional material and
    40  information provided. No adverse consequence to the respondent or  coun-
    41  sel  for the respondent shall result from the filing of a certificate of
    42  compliance in good faith; but the court may grant a remedy  or  sanction
    43  for a discovery violation as provided in section 331.12 of this part.
    44    §  331.7. Non-testimonial evidence from the respondent; DNA comparison
    45  order. 1. Availability.  After the filing of the petition,  and  subject
    46  to  constitutional  limitations,  the  court  may,  upon  motion  of the
    47  presentment agency showing probable cause to believe the respondent  has
    48  committed  the  act  that  if  committed  by an adult would constitute a
    49  crime, a clear indication that relevant material evidence will be found,
    50  and that the method used to secure such evidence is safe  and  reliable,
    51  require a respondent to provide non-testimonial evidence, including to:
    52    (a) appear in a lineup;
    53    (b) speak for identification by a witness or potential witness;
    54    (c) be fingerprinted if authorized in accordance with section 306.1 of
    55  this article;

        A. 10049                           12

     1    (d)  pose  for  photographs  not  involving  reenactment  of an event,
     2  provided respondent is subject  to  photographing  pursuant  to  section
     3  306.1 of this article;
     4    (e)  permit the taking of samples of the respondent's blood, hair, and
     5  other materials of the respondent's body that involves  no  unreasonable
     6  intrusion thereof or a risk of serious physical injury thereto;
     7    (f) provide specimens of the respondent's handwriting; and
     8    (g)  submit  to  a  reasonable  physical  or medical inspection of the
     9  respondent's body.
    10    2. Limitations. This section shall not be construed to alter or in any
    11  way affect the issuance of a similar court order, as may  be  authorized
    12  by  law,  before the filing of the petition, consistent with such rights
    13  as the respondent may derive from this article, the  state  constitution
    14  or  the  United States constitution. This section shall not be construed
    15  to alter or in any way affect the  administration  of  a  chemical  test
    16  where  otherwise  authorized.  An  order pursuant to this section may be
    17  denied, limited or conditioned as provided in  section  331.11  of  this
    18  part.
    19    3.  DNA  comparison  order. Where property in the presentment agency's
    20  possession, custody, or control consists of a DNA profile obtained  from
    21  probative  biological  material gathered in connection with the investi-
    22  gation of the crime, and the respondent  establishes:    (a)  that  such
    23  profile  complies with federal bureau of investigation or state require-
    24  ments, whichever are applicable and as such requirements are applied  to
    25  law  enforcement  agencies  seeking a keyboard search or similar compar-
    26  ison, and (b) that the data meets state DNA index system or national DNA
    27  index system criteria as such criteria are applied  to  law  enforcement
    28  agencies seeking such a keyboard search or similar comparison, the court
    29  may,  upon  motion  of  a respondent against whom a petition is pending,
    30  order an entity that has access to the combined DNA index system or  its
    31  successor  system  to  compare such DNA profile against DNA databanks by
    32  keyboard searches, or a similar method that does not involve  uploading,
    33  upon  notice  to  both  parties  and  the entity required to perform the
    34  search, upon a showing by the respondent that such a comparison is mate-
    35  rial to the presentation of his or her defense and that the  request  is
    36  reasonable. For purposes of this section, a "keyboard search" shall mean
    37  a search of a DNA profile against the databank in which the profile that
    38  is searched is not uploaded to or maintained in the databank. Nothing in
    39  this section authorizes the taking of a DNA profile from the respondent,
    40  whether  taken  from  their  person  or  otherwise,  unless specifically
    41  authorized by law.
    42    § 331.8. Flow of information. 1. Sufficient communication for  compli-
    43  ance.  The  presentment  agency  shall endeavor to ensure that a flow of
    44  information is  maintained  with  the  police  and  other  investigative
    45  personnel  and  sufficient  to  place  within  the  presentment agency's
    46  possession or control all material  and  information  pertinent  to  the
    47  respondent  and  the  offense  or  offenses  charged, including, but not
    48  limited to, any evidence or information discoverable under paragraph (k)
    49  of subdivision one of section 331.3 of this part.
    50    2. Provision of law enforcement agency files. Absent a court order  or
    51  a  requirement that the respondent's counsel obtain a security clearance
    52  mandated by law or authorized government regulation, upon request by the
    53  presentment agency, each New York state and local law enforcement agency
    54  shall make available to the presentment agency a complete  copy  of  its
    55  complete  records  and files related to the investigation of the case or
    56  related to the presentment agency regarding compliance with this part.

        A. 10049                           13

     1    3.  911  telephone  call  and  police  radio  transmission  electronic
     2  recordings,   police-worn   body  camera  recordings  and  other  police
     3  recordings. (a) Whenever an electronic recording of a 911 telephone call
     4  or a police radio transmission or video or audio footage from a  police-
     5  worn  body  camera  or  other  police  recording was made or received in
     6  connection with the investigation of an apparent criminal incident,  the
     7  arresting  officer  or  lead  detective  shall  expeditiously notify the
     8  presentment agency in writing upon the filing of  the  petition  of  the
     9  existence  of  all  such  known recordings. The presentment agency shall
    10  expeditiously take whatever reasonable steps  are  necessary  to  ensure
    11  that  all  known  electronic  recordings  of 911 telephone calls, police
    12  radio transmissions  and  video  and  audio  footage  and  other  police
    13  recordings  made or available in connection with the case are preserved.
    14  Upon the respondent's timely request and designation of a specific elec-
    15  tronic recording of a 911 telephone call, the presentment  agency  shall
    16  also  expeditiously  take  whatever  reasonable  steps  are necessary to
    17  ensure that it is preserved.
    18    (b) If the presentment agency fails to  disclose  such  an  electronic
    19  recording  to  the  respondent  pursuant to paragraph (e), (g) or (k) of
    20  subdivision one of section 331.3 of this part due to a failure to comply
    21  with this obligation by police officers  or  other  law  enforcement  or
    22  prosecution  personnel,  the  court  upon motion of the respondent shall
    23  impose an appropriate remedy or sanction pursuant to section  331.12  of
    24  this part.
    25    § 331.9. Continuing duty to disclose. If either the presentment agency
    26  or the respondent subsequently learns of additional material or informa-
    27  tion  which  it would have been under a duty to disclose pursuant to any
    28  provisions of this part had it known of it at the  time  of  a  previous
    29  discovery  obligation  or discovery order, it shall expeditiously notify
    30  the other party and disclose the additional material and information  as
    31  required  for  automatic  discovery  under  this part. This section also
    32  requires expeditious disclosure by the presentment agency of material or
    33  information that became relevant to the case or  discoverable  based  on
    34  reciprocal  discovery  received from the respondent pursuant to subdivi-
    35  sion four of section 331.3 of this part.
    36    § 331.10. Work product. This part does not authorize  discovery  by  a
    37  party  of those portions of records, reports, correspondence, memoranda,
    38  or internal documents of the adverse party  which  are  only  the  legal
    39  research,  opinions, theories or conclusions of the adverse party or its
    40  attorney or the attorney's agents, or of  statements  of  a  respondent,
    41  written  or  recorded or summarized in any writing or recording, made to
    42  the attorney for the respondent or the attorney's agents.
    43    § 331.11. Protective orders. 1. Any discovery  subject  to  protective
    44  order.  Upon  a  showing of good cause by either party, the court may at
    45  any time order that discovery or inspection of any kind of  material  or
    46  information  under  this  part  be  denied,  restricted,  conditioned or
    47  deferred, or make such other order as  is  appropriate.  The  court  may
    48  impose  as a condition on discovery to a respondent that the material or
    49  information to be discovered  be  available  only  to  counsel  for  the
    50  respondent;  or,  alternatively,  that  counsel  for the respondent, and
    51  persons employed by the attorney or appointed by the court to assist  in
    52  the preparation of a respondent's case, may not disclose physical copies
    53  of  the  discoverable  documents  to  a  respondent  or  to anyone else,
    54  provided that the presentment agency affords the  respondent  access  to
    55  inspect  redacted  copies  of the discoverable documents at a supervised
    56  location that provides regular and reasonable  hours  for  such  access,

        A. 10049                           14

     1  such  as  a  presentment  agency's  office,  police station, facility of
     2  detention, or court.  Should the court impose as a condition  that  some
     3  material or information be available only to counsel for the respondent,
     4  the  court  shall  inform  the  respondent on the record that his or her
     5  attorney is not permitted by law to disclose such material  or  informa-
     6  tion to the respondent. The court may permit a party seeking or opposing
     7  a  protective  order  under this section, or another affected person, to
     8  submit papers or testify on the record ex parte or in camera.  Any  such
     9  papers  and  a  transcript  of  such  testimony  may be sealed and shall
    10  constitute a part of the record on appeal. This section does  not  alter
    11  the  allocation  of the burden of proof with regard to matters at issue,
    12  including privilege.
    13    2. Modification of time periods for discovery. Upon motion of a  party
    14  in  an individual case, the court may alter the time periods for discov-
    15  ery imposed by this part upon a showing of good cause.
    16    3. Prompt hearing. Upon request for  a  protective  order,  the  court
    17  shall  conduct  an  appropriate  hearing  within  three business days to
    18  determine whether good cause has been shown and when  practicable  shall
    19  render  decision expeditiously. Any materials submitted and a transcript
    20  of the proceeding may be sealed and  shall  constitute  a  part  of  the
    21  record on appeal.
    22    4. Showing of good cause. In determining good cause under this section
    23  the court may consider:  constitutional rights or limitations; danger to
    24  the  integrity  of physical evidence or the safety of a witness; risk of
    25  intimidation, economic  reprisal,  bribery,  harassment  or  unjustified
    26  annoyance  or  embarrassment to any person, and the nature, severity and
    27  likelihood of that risk; a risk of an adverse effect upon the legitimate
    28  needs of law enforcement, including the protection of the confidentiali-
    29  ty of informants, and the nature, severity and likelihood of that  risk;
    30  the  nature  and  circumstances  of the factual allegations in the case;
    31  whether the respondent has a history of witness intimidation or  tamper-
    32  ing  and the nature of that history; the nature of the stated reasons in
    33  support of a protective order; the nature  of  the  witness  identifying
    34  information  that  is  sought  to  be  addressed  by a protective order,
    35  including the option of employing adequate alternative contact  informa-
    36  tion;  danger to any person stemming from factors such as a respondent's
    37  substantiated affiliation with  a  criminal  enterprise  as  defined  in
    38  subdivision  three of section 460.10 of the penal law; and other similar
    39  factors found to outweigh the usefulness of the discovery.
    40    5. Successor counsel. In cases in which the attorney-client  relation-
    41  ship is terminated prior to trial for any reason, any material or infor-
    42  mation  disclosed  subject  to  a condition that it be available only to
    43  counsel for the respondent, or limited in  dissemination  by  protective
    44  order  or otherwise, shall be provided only to successor counsel for the
    45  respondent under the same condition or conditions or be returned to  the
    46  presentment  agency,  unless  the  court  rules otherwise for good cause
    47  shown or the presentment agency gives written consent. Any work  product
    48  derived  from  such material or information shall not be provided to the
    49  respondent, unless the court rules otherwise or the  presentment  agency
    50  gives  written  consent; provided, however, any such work product may be
    51  provided to the successor counsel.
    52    6. Compliance with protective order. Any protective order issued under
    53  this part is a mandate of the court for purposes of the offense of crim-
    54  inal contempt in subdivision three of section 215.50 of the penal law.
    55    § 331.12. Remedies or sanctions for non-compliance. 1. Need for remedy
    56  or sanction. (a) When material or information is discoverable under this

        A. 10049                           15

     1  part but is disclosed belatedly, the court shall impose  an  appropriate
     2  remedy or sanction if the party entitled to disclosure shows that it was
     3  prejudiced.  Regardless  of a showing of prejudice the party entitled to
     4  disclosure  shall be given reasonable time to prepare and respond to the
     5  new material.
     6    (b) When material or information is discoverable under this  part  but
     7  cannot  be  disclosed  because  it has been lost or destroyed, the court
     8  shall impose an appropriate remedy or sanction if the party entitled  to
     9  disclosure  shows that the lost or destroyed material may have contained
    10  some information relevant to a contested issue. The  appropriate  remedy
    11  or  sanction  is  that  which  is proportionate to the potential ways in
    12  which the lost or destroyed material reasonably could have been  helpful
    13  to the party entitled to disclosure.
    14    2.  Available  remedies  or  sanctions. For failure to comply with any
    15  discovery order imposed or issued pursuant to this part, the  court  may
    16  make  a  further  order for discovery, grant a continuance, order that a
    17  hearing be reopened, order that a witness be called or recalled, draw an
    18  adverse inference regarding the non-compliance,  preclude  or  strike  a
    19  witness's  testimony  or  a  portion  of a witness's testimony, admit or
    20  exclude evidence, order a mistrial, order the dismissal of all  or  some
    21  of  the  charges,  or  make  such other order as it deems just under the
    22  circumstances; except that any sanction  against  the  respondent  shall
    23  comport with the respondent's constitutional right to present a defense,
    24  and  precluding  a  witness  from testifying on behalf of the respondent
    25  shall be permissible only upon a finding that the  respondent's  failure
    26  to  comply  with the discovery obligation or order was willful and moti-
    27  vated by a desire to obtain a tactical advantage.
    28    3. Consequences of non-disclosure of statement of  witness  testifying
    29  for  the  presentment  agency.  The failure of the presentment agency to
    30  disclose any written or recorded statement made by a witness  testifying
    31  on  the  agency's  behalf,  which  relates  to the subject matter of the
    32  witness's testimony, shall not constitute grounds for any court to order
    33  a new pre-trial hearing or set aside an adjudication, or reverse, modify
    34  or vacate an adjudication, in the absence of a showing by the respondent
    35  that there is a reasonable possibility  that  the  non-disclosure  mate-
    36  rially  contributed  to  the  result  of  the trial or other proceeding;
    37  provided, however, that nothing in this section shall  affect  or  limit
    38  any  right  the respondent may have to a reopened pre-trial hearing when
    39  such statements were disclosed before the close of evidence at the fact-
    40  finding hearing.
    41    § 331.13. Admissibility of discovery. The fact that a party has  indi-
    42  cated  during  the  discovery  process  an  intention to offer specified
    43  evidence or to call a specified witness is not admissible in evidence or
    44  grounds for adverse comment at a pre-trial or fact-finding hearing.
    45    § 3. Subdivision 2 of section 325 of the judiciary law,  as  added  by
    46  chapter 920 of the laws of 1982, is amended to read as follows:
    47    2.  Where an application follows a demand to produce any transcript of
    48  testimony at a grand jury proceeding pursuant to paragraph (b) of subdi-
    49  vision [two] one of section [331.2 or paragraph (a) of  subdivision  one
    50  of  section  331.4] 331.3 of the family court act the presentment agency
    51  and respondent shall be given notice of such application and an opportu-
    52  nity to be heard.
    53    § 4. Subdivision 5 of section 330.1 of the family court act, as  added
    54  by chapter 398 of the laws of 1983, is amended to read as follows:
    55    5.  Court  ordered bill of particulars. Where a presentment agency has
    56  timely served a written refusal pursuant to  subdivision  four  of  this

        A. 10049                           16

     1  section  and upon motion, made in writing, of a respondent, who has made
     2  a request for a bill of particulars  and  whose  request  has  not  been
     3  complied  with  in  whole  or  in  part, the court must, to the extent a
     4  protective  order  is  not  warranted,  order  the presentment agency to
     5  comply with the request if it is satisfied that  the  items  of  factual
     6  information requested are authorized to be included in a bill of partic-
     7  ulars,  and  that such information is necessary to enable the respondent
     8  adequately to prepare or conduct his defense and,  if  the  request  was
     9  untimely,  a  finding  of  good cause for the delay. Where a presentment
    10  agency has not timely served a written refusal pursuant  to  subdivision
    11  four  of  this  section  the court must, unless it is satisfied that the
    12  presentment agency has shown good cause why such an order should not  be
    13  issued,  issue  an  order  requiring the presentment agency to comply or
    14  providing for any other order authorized by subdivision one  of  section
    15  [331.6] 331.12 of this part.
    16    § 5. This act shall take effect January 1, 2025.