Bill Text: NY S07947 | 2013-2014 | General Assembly | Introduced
Bill Title: Recodifies criminal discovery provisions including discovery obligations of the prosecution and defendant.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2014-10-17 - REFERRED TO RULES [S07947 Detail]
Download: New_York-2013-S07947-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 7947 I N S E N A T E October 17, 2014 ___________ Introduced by Sen. HASSELL-THOMPSON -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the criminal procedure law and the penal law, in relation to criminal discovery; and to repeal certain provisions of the criminal procedure law relating thereto THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Article 240 of the criminal procedure law is REPEALED. 2 S 2. The criminal procedure law is amended by adding a new article 245 3 to read as follows: 4 ARTICLE 245 - DISCOVERY 5 SECTION 245.10 AVAILABILITY OF PROTECTIVE ORDERS. 6 245.20 PHASE ONE DISCOVERY OBLIGATION OF PROSECUTION. 7 245.30 PHASE TWO DISCOVERY OBLIGATION OF PROSECUTION. 8 245.40 RECIPROCAL DISCOVERY OBLIGATION OF THE DEFENDANT. 9 245.45 DISCLOSURE OF PRIOR MISCONDUCT OR CRIMINAL ACTS. 10 245.50 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT. 11 245.55 COURT ORDERS FOR PRESERVATION, ACCESS OR DISCOVERY. 12 245.60 MATERIAL HELD BY OTHER GOVERNMENTAL PERSONNEL. 13 245.65 CERTIFICATES OF COMPLIANCE. 14 245.70 COURT ORDERED PROCEDURES TO FACILITATE COMPLIANCE. 15 245.75 FLOW OF INFORMATION WITH POLICE. 16 245.80 CONTINUING DUTY TO DISCLOSE. 17 245.85 WORK PRODUCT. 18 245.90 AVAILABILITY OF REMEDIES FOR VIOLATIONS. 19 245.95 ADMISSIBILITY OF DISCOVERY. 20 S 245.10 AVAILABILITY OF PROTECTIVE ORDERS. 21 1. ANY DISCOVERY SUBJECT TO PROTECTIVE ORDER. UPON A SHOWING OF GOOD 22 CAUSE, THE COURT MAY AT ANY TIME ORDER THAT DISCOVERY OR INSPECTION OF 23 ANY KIND OF MATERIAL OR INFORMATION UNDER THIS ARTICLE BE DENIED, 24 RESTRICTED, CONDITIONED OR DEFERRED, OR MAKE SUCH OTHER ORDER AS IS 25 APPROPRIATE. THE COURT MAY IMPOSE AS A CONDITION ON DISCOVERY TO A 26 DEFENDANT THAT THE MATERIAL OR INFORMATION TO BE DISCOVERED BE AVAILABLE 27 ONLY TO COUNSEL FOR THE DEFENDANT. THE COURT MAY PERMIT A PARTY SEEKING EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09687-01-3 S. 7947 2 1 OR OPPOSING A PROTECTIVE ORDER UNDER THIS SECTION, OR ANOTHER AFFECTED 2 PERSON, TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN CAMERA. ANY SUCH 3 PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY SHALL BE SEALED AND SHALL 4 CONSTITUTE A PART OF THE RECORD ON APPEAL. THIS SECTION DOES NOT ALTER 5 THE ALLOCATION OF THE BURDEN OF PROOF WITH REGARD TO MATTERS AT ISSUE, 6 INCLUDING PRIVILEGE. 7 2. MODIFICATION OF TIME PERIODS FOR DISCOVERY. UPON MOTION OF A PARTY 8 IN AN INDIVIDUAL CASE, THE COURT MAY ALTER THE TIME PERIODS FOR DISCOV- 9 ERY IMPOSED BY THIS ARTICLE UPON A SHOWING OF GOOD CAUSE. 10 3. SHOWING OF GOOD CAUSE. GOOD CAUSE UNDER THIS SECTION MAY INCLUDE 11 CONSTITUTIONAL LIMITATIONS; DANGER TO THE INTEGRITY OF PHYSICAL 12 EVIDENCE; A SUBSTANTIAL RISK OF PHYSICAL HARM, INTIMIDATION, ECONOMIC 13 REPRISAL, BRIBERY OR UNJUSTIFIED ANNOYANCE OR EMBARRASSMENT TO ANY 14 PERSON; A SUBSTANTIAL RISK OF AN ADVERSE EFFECT UPON THE LEGITIMATE 15 NEEDS OF LAW ENFORCEMENT, INCLUDING THE PROTECTION OF THE CONFIDENTIALI- 16 TY OF INFORMANTS; DANGER TO ANY PERSON STEMMING FROM FACTORS SUCH AS A 17 DEFENDANT'S GANG AFFILIATION, PRIOR HISTORY OF INTERFERING WITH 18 WITNESSES, OR THREATS OR INTIMIDATING ACTIONS DIRECTED AT POTENTIAL 19 WITNESSES; OR OTHER SIMILAR FACTORS THAT OUTWEIGH THE USEFULNESS OF THE 20 DISCOVERY. 21 S 245.20 PHASE ONE DISCOVERY OBLIGATION OF PROSECUTION. 22 1. TIMING OF PHASE ONE DISCOVERY FOR THE DEFENDANT. THE PROSECUTION 23 SHALL PERFORM ITS PHASE ONE DISCOVERY OBLIGATIONS UNDER THIS SECTION 24 WITHIN FIFTEEN CALENDAR DAYS AFTER THE DEFENDANT'S ARRAIGNMENT ON AN 25 INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR- 26 MATION, OR SIMPLIFIED INFORMATION. PORTIONS OF MATERIALS CLAIMED TO BE 27 NON-DISCOVERABLE MAY BE WITHHELD PENDING A DETERMINATION AND RULING OF 28 THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE DEFENDANT SHALL 29 BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A 30 PARTICULAR SUBDIVISION, AND THE DISCOVERABLE PORTIONS OF SUCH MATERIALS 31 SHALL BE DISCLOSED IF PRACTICABLE. WHEN THE DISCOVERABLE MATERIALS ARE 32 EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD IN THIS SUBDIVISION MAY BE 33 STAYED BY AN ADDITIONAL FORTY-FIVE CALENDAR DAYS WITHOUT NEED FOR A 34 MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.10 OF THIS ARTICLE. 35 2. PHASE ONE DISCOVERY FOR THE DEFENDANT. THE PROSECUTION SHALL 36 DISCLOSE TO THE DEFENDANT AS PART OF PHASE ONE DISCOVERY, AND PERMIT THE 37 DEFENDANT TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF THE FOLLOW- 38 ING ITEMS AND INFORMATION WHEN IT RELATES TO THE SUBJECT MATTER OF THE 39 CASE: 40 (A) ALL ELECTRONICALLY STORED POLICE REPORTS AND LAW ENFORCEMENT AGEN- 41 CY REPORTS THAT ARE IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSE- 42 CUTION, OR PERSONS UNDER THE PROSECUTION'S DIRECTION AND CONTROL. 43 (B) ALL WRITTEN OR RECORDED STATEMENTS, AND THE SUBSTANCE OF ALL ORAL 44 STATEMENTS, MADE BY THE DEFENDANT OR A CO-DEFENDANT TO A PUBLIC SERVANT 45 ENGAGED IN LAW ENFORCEMENT ACTIVITY OR TO A PERSON THEN ACTING UNDER HIS 46 OR HER DIRECTION OR IN COOPERATION WITH HIM OR HER, OTHER THAN STATE- 47 MENTS MADE IN THE COURSE OF THE CRIMINAL TRANSACTION. 48 (C) A LIST OF ALL TANGIBLE OBJECTS OBTAINED FROM, OR ALLEGEDLY 49 POSSESSED BY, THE DEFENDANT OR A CO-DEFENDANT. THE LIST SHALL INCLUDE A 50 DESIGNATION BY THE PROSECUTOR AS TO WHICH OBJECTS WERE PHYSICALLY OR 51 CONSTRUCTIVELY POSSESSED BY THE DEFENDANT AND WERE RECOVERED DURING A 52 SEARCH OR SEIZURE BY A PUBLIC SERVANT OR AN AGENT THEREOF, AND WHICH 53 TANGIBLE OBJECTS WERE RECOVERED BY A PUBLIC SERVANT OR AN AGENT THEREOF 54 AFTER ALLEGEDLY BEING ABANDONED BY THE DEFENDANT. IF THE PROSECUTION 55 INTENDS TO PROVE THE DEFENDANT'S POSSESSION OF ANY TANGIBLE OBJECTS BY 56 MEANS OF A STATUTORY PRESUMPTION OF POSSESSION, IT SHALL DESIGNATE THAT S. 7947 3 1 INTENTION AS TO EACH SUCH OBJECT. IF REASONABLY PRACTICABLE, IT SHALL 2 ALSO DESIGNATE THE LOCATION FROM WHICH EACH TANGIBLE OBJECT WAS RECOV- 3 ERED. 4 (D) THE NAMES OF, AND ADDRESSES OR ADEQUATE ALTERNATIVE CONTACT INFOR- 5 MATION FOR, ALL PERSONS OTHER THAN LAW ENFORCEMENT PERSONNEL WHOM THE 6 PROSECUTOR KNOWS TO HAVE EVIDENCE OR INFORMATION RELEVANT TO ANY OFFENSE 7 CHARGED OR TO A POTENTIAL DEFENSE THERETO, INCLUDING A DESIGNATION BY 8 THE PROSECUTOR AS TO WHICH OF THOSE PERSONS MAY BE CALLED AS WITNESSES. 9 INFORMATION UNDER THIS PARAGRAPH RELATING TO ANY PERSON MAY BE WITHHELD, 10 AND REDACTED FROM DISCOVERY MATERIALS, AS PROVIDED IN SUBDIVISION THREE 11 OR FOUR OF THIS SECTION. INFORMATION UNDER THIS PARAGRAPH RELATING TO A 12 CONFIDENTIAL INFORMANT MAY BE WITHHELD, AND REDACTED FROM DISCOVERY 13 MATERIALS, WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS 14 ARTICLE; BUT THE DEFENDANT SHALL BE NOTIFIED IN WRITING THAT SUCH INFOR- 15 MATION HAS NOT BEEN DISCLOSED, UNLESS THE COURT RULES OTHERWISE FOR GOOD 16 CAUSE SHOWN. 17 (E) THE NAME, RANK, SHIELD NUMBER AND BUSINESS ADDRESS OF ALL LAW 18 ENFORCEMENT PERSONNEL WHOM THE PROSECUTOR KNOWS TO HAVE EVIDENCE OR 19 INFORMATION RELEVANT TO ANY OFFENSE CHARGED OR TO A POTENTIAL DEFENSE 20 THERETO. INFORMATION UNDER THIS PARAGRAPH RELATING TO UNDERCOVER PERSON- 21 NEL MAY BE WITHHELD, AND REDACTED FROM DISCOVERY MATERIALS, WITHOUT NEED 22 FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS ARTICLE; BUT THE DEFEND- 23 ANT SHALL BE NOTIFIED IN WRITING THAT SUCH INFORMATION HAS NOT BEEN 24 DISCLOSED, UNLESS THE COURT RULES OTHERWISE FOR GOOD CAUSE SHOWN. 25 (F) WHEN WRITTEN AND RECORDED STATEMENTS ARE IN THE POSSESSION OF THE 26 PROSECUTION (NOT SOLELY IN THE POSSESSION OF POLICE OR ANOTHER LAW 27 ENFORCEMENT AGENCY), ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED 28 IN ANY WRITING OR RECORDING, MADE BY PERSONS WHO HAVE EVIDENCE OR INFOR- 29 MATION RELEVANT TO ANY OFFENSE CHARGED OR TO A POTENTIAL DEFENSE THERE- 30 TO. STATEMENTS SOLELY IN THE POSSESSION OF POLICE OR ANOTHER LAW 31 ENFORCEMENT AGENCY AT THE TIME OF PHASE ONE DISCOVERY ARE DISCOVERABLE 32 UNDER PARAGRAPH (C) OF SUBDIVISION TWO OF SECTION 245.30 OF THIS ARTI- 33 CLE. 34 (G) WHEN IT IS KNOWN TO THE PROSECUTION (NOT SOLELY KNOWN TO POLICE OR 35 ANOTHER LAW ENFORCEMENT AGENCY), ALL EVIDENCE AND INFORMATION, WHETHER 36 OR NOT ADMISSIBLE OR RECORDED IN TANGIBLE FORM, THAT TENDS TO: (I) 37 EXCULPATE THE DEFENDANT; (II) MITIGATE THE DEFENDANT'S CULPABILITY AS TO 38 A CHARGED OFFENSE; (III) SUPPORT A POTENTIAL DEFENSE TO A CHARGED 39 OFFENSE; (IV) PROVIDE A BASIS FOR A MOTION TO SUPPRESS EVIDENCE ON 40 CONSTITUTIONAL GROUNDS; (V) SIGNIFICANTLY IMPUGN THE CREDIBILITY OF AN 41 IMPORTANT PROSECUTION WITNESS, INFORMANT OR EVIDENCE; OR (VI) MITIGATE 42 PUNISHMENT. FAVORABLE EVIDENCE AND INFORMATION KNOWN SOLELY TO POLICE OR 43 ANOTHER LAW ENFORCEMENT AGENCY AT THE TIME OF PHASE ONE DISCOVERY IS 44 DISCOVERABLE UNDER PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.30 OF 45 THIS ARTICLE. 46 (H) WHETHER A SEARCH WARRANT HAS BEEN EXECUTED AND ALL DOCUMENTS 47 RELATING THERETO, INCLUDING BUT NOT LIMITED TO THE WARRANT, THE WARRANT 48 APPLICATION, SUPPORTING AFFIDAVITS, A POLICE INVENTORY OF ALL PROPERTY 49 SEIZED UNDER THE WARRANT, AND A TRANSCRIPT OF ALL TESTIMONY OR OTHER 50 ORAL COMMUNICATIONS OFFERED IN SUPPORT OF THE WARRANT APPLICATION. 51 (I) THE APPROXIMATE DATE, TIME AND PLACE OF THE OFFENSE OR OFFENSES 52 CHARGED AND OF THE DEFENDANT'S ARREST. 53 3. PROSECUTOR'S OPTION TO RESTRICT DISCLOSURE OF CONTACT INFORMATION 54 BY ARRANGING WITNESS INTERVIEW. WITHIN THE PROSECUTOR'S DISCRETION, THE 55 ADDRESS, TELEPHONE NUMBER OR SIMILAR CONTACT INFORMATION FOR ANY PERSON 56 WHOSE NAME IS DISCLOSED PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF S. 7947 4 1 THIS SECTION MAY BE WITHHELD, AND REDACTED FROM OTHER DISCOVERY MATERI- 2 ALS, WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS ARTI- 3 CLE, IF THE PROSECUTOR MAKES THE PERSON AVAILABLE TO COUNSEL FOR THE 4 DEFENDANT FOR AN IN PERSON INTERVIEW WITHIN THE TIME PERIOD SPECIFIED IN 5 SUBDIVISION ONE OF THIS SECTION. THIS SUBDIVISION DOES NOT CREATE ANY 6 RIGHT FOR THE DEFENDANT PERSONALLY TO ATTEND OR TO PARTICIPATE IN SUCH 7 AN INTERVIEW. 8 4. PROSECUTOR'S OPTION TO RESTRICT DISCLOSURE OF CONTACT INFORMATION 9 IN VIOLENT FELONY CASES. (A) WHERE THE DEFENDANT IS CHARGED WITH A 10 VIOLENT FELONY OFFENSE, WITHIN THE PROSECUTOR'S DISCRETION THE ADDRESS, 11 TELEPHONE NUMBER OR SIMILAR CONTACT INFORMATION FOR ANY PERSON WHOSE 12 NAME IS DISCLOSED PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF THIS 13 SECTION MAY BE WITHHELD, AND REDACTED FROM OTHER DISCOVERY MATERIALS, 14 WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS ARTICLE; 15 EXCEPT THAT A LIST OF THE ADDRESSES OR ADEQUATE ALTERNATIVE CONTACT 16 INFORMATION FOR PERSONS WHOSE INFORMATION HAS BEEN WITHHELD OR REDACTED 17 SHALL BE SEPARATELY PROVIDED TO COUNSEL FOR THE DEFENDANT IN A DOCUMENT 18 CLEARLY MARKED AS CONFIDENTIAL, UNLESS A PROTECTIVE ORDER PURSUANT TO 19 SECTION 245.10 OF THIS ARTICLE IS ISSUED BY THE COURT FOR GOOD CAUSE 20 SHOWN. IN ADDITION DISCOVERY OF THIS INFORMATION MAY BE CONDITIONED ON 21 THE DEFENDANT'S PERSONAL CONSENT, GIVEN IN OPEN COURT IN THE PRESENCE OF 22 THE COURT AT ARRAIGNMENT OR AT ANOTHER TIME, TO THE USE OF THE CONFIDEN- 23 TIALITY PROCEDURE SET FORTH IN THIS SUBDIVISION. THE COURT SHALL 24 SPECIFICALLY CAUTION THE DEFENDANT, IN THE COLLOQUY ABOUT USE OF THIS 25 PROCEDURE, CONCERNING THE OFFENSES OF TAMPERING WITH A WITNESS AND 26 INTIMIDATING A VICTIM OR WITNESS IN ARTICLE TWO HUNDRED FIFTEEN OF THE 27 PENAL LAW. NOTHING IN THIS SUBDIVISION PRECLUDES THE COURT FROM ISSUING 28 A DIFFERENT PROTECTIVE ORDER PURSUANT TO SECTION 245.10 OF THIS ARTICLE 29 FOR GOOD CAUSE SHOWN. 30 (B) WHEN THE CONFIDENTIALITY PROCEDURE SET FORTH IN THIS SUBDIVISION 31 IS USED, THE FOLLOWING REQUIREMENTS APPLY: 32 (I) EXCEPT AS PROVIDED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH, COUNSEL 33 FOR THE DEFENDANT MAY NOT DISCLOSE OR PERMIT TO BE DISCLOSED TO A 34 DEFENDANT OR TO ANYONE ELSE THE LIST DESCRIBED IN THIS SUBDIVISION OR 35 ITS CONTENTS, UNLESS SPECIFICALLY PERMITTED TO DO SO BY THE COURT FOR 36 GOOD CAUSE SHOWN OR UNLESS THE PROSECUTOR GIVES WRITTEN CONSENT. THE 37 COURT MAY ALLOW A PARTY SEEKING OR OPPOSING SUCH PERMISSION, OR ANOTHER 38 AFFECTED PERSON, TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN CAMERA. ANY 39 SUCH PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY SHALL BE SEALED AND SHALL 40 CONSTITUTE A PART OF THE RECORD ON APPEAL. 41 (II) NOTWITHSTANDING SUBPARAGRAPH (I) OF THIS PARAGRAPH, COUNSEL FOR 42 THE DEFENDANT MAY DISCLOSE OR PERMIT TO BE DISCLOSED THE LISTED CONTACT 43 INFORMATION FOR A POTENTIAL WITNESS TO PERSONS EMPLOYED BY THE ATTORNEY 44 OR TO PERSONS APPOINTED BY THE COURT TO ASSIST IN THE PREPARATION OF A 45 DEFENDANT'S CASE IF THAT DISCLOSURE IS REQUIRED FOR THAT PREPARATION. 46 PERSONS PROVIDED THIS INFORMATION BY THE ATTORNEY SHALL BE INFORMED BY 47 THE ATTORNEY THAT FURTHER DISSEMINATION OF THE INFORMATION, EXCEPT AS 48 PROVIDED BY THIS SUBDIVISION, IS PROHIBITED. WITHIN THE PROSECUTOR'S 49 DISCRETION, DISCOVERY OF THE LISTED CONTACT INFORMATION MAY BE CONDI- 50 TIONED ON SERVICE OF A WRITTEN STATEMENT BY COUNSEL FOR THE DEFENDANT OF 51 THE NAMES OF ANY EMPLOYEES WHO MAY BE PROVIDED INFORMATION PURSUANT TO 52 THIS SUBSECTION, AND DESCRIBING ANY KNOWN PRIOR CONNECTIONS BETWEEN 53 THOSE EMPLOYEES AND ALL DEFENDANTS IN THE CASE. 54 (III) IF THE DEFENDANT IS ACTING AS HIS OR HER OWN ATTORNEY, THE COURT 55 SHALL ENDEAVOR TO PROTECT THE LISTED CONTACT INFORMATION FOR A POTENTIAL 56 WITNESS BY PROVIDING FOR CONTACT ONLY THROUGH PERSONS APPOINTED BY THE S. 7947 5 1 COURT TO ASSIST IN THE PREPARATION OF THE DEFENDANT'S CASE OR BY IMPOS- 2 ING OTHER REASONABLE RESTRICTIONS, ABSENT A SHOWING OF GOOD CAUSE. 3 S 245.30 PHASE TWO DISCOVERY OBLIGATION OF PROSECUTION. 4 1. TIMING OF PHASE TWO DISCOVERY FOR THE DEFENDANT. THE PROSECUTION 5 SHALL PERFORM ITS PHASE TWO DISCOVERY OBLIGATIONS UNDER THIS SECTION 6 WITHIN NINETY CALENDAR DAYS AFTER THE DEFENDANT'S ARRAIGNMENT ON AN 7 INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR- 8 MATION, OR SIMPLIFIED INFORMATION. PORTIONS OF MATERIALS CLAIMED TO BE 9 NON-DISCOVERABLE MAY BE WITHHELD PENDING A DETERMINATION AND RULING OF 10 THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE DEFENDANT SHALL 11 BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A 12 PARTICULAR SUBDIVISION, AND THE DISCOVERABLE PORTIONS OF SUCH MATERIALS 13 SHALL BE DISCLOSED IF PRACTICABLE. WHEN THE DISCOVERABLE MATERIALS ARE 14 EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD IN THIS SUBDIVISION MAY BE 15 STAYED BY AN ADDITIONAL THIRTY CALENDAR DAYS WITHOUT NEED FOR A MOTION 16 PURSUANT TO SUBDIVISION TWO OF SECTION 245.10 OF THIS ARTICLE. 17 2. PHASE TWO DISCOVERY FOR THE DEFENDANT. THE PROSECUTION SHALL 18 DISCLOSE TO THE DEFENDANT AS PART OF PHASE TWO DISCOVERY, AND PERMIT THE 19 DEFENDANT TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF THE FOLLOW- 20 ING ITEMS AND INFORMATION WHEN IT RELATES TO THE SUBJECT MATTER OF THE 21 CASE AND IS IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR 22 PERSONS UNDER THE PROSECUTION'S DIRECTION OR CONTROL: 23 (A) ALL TRANSCRIPTS OF THE TESTIMONY OF A PERSON WHO HAS TESTIFIED 24 BEFORE A GRAND JURY, INCLUDING BUT NOT LIMITED TO THE DEFENDANT OR A 25 CO-DEFENDANT. IF IN THE EXERCISE OF REASONABLE DILIGENCE, AND DUE TO THE 26 LIMITED AVAILABILITY OF TRANSCRIPTION RESOURCES, A TRANSCRIPT IS 27 UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVI- 28 SION ONE OF THIS SECTION, THAT PERIOD MAY BE STAYED BY AN ADDITIONAL 29 FORTY-FIVE CALENDAR DAYS WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 30 245.10 OF THIS ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON 31 AS PRACTICABLE AND NOT LATER THAN THIRTY CALENDAR DAYS BEFORE A SCHED- 32 ULED TRIAL DATE, UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10 33 OF THIS ARTICLE. 34 (B) ALL POLICE REPORTS AND LAW ENFORCEMENT AGENCY REPORTS, INCLUDING 35 THOSE NOT ELECTRONICALLY STORED. REPORTS PREVIOUSLY DISCLOSED PURSUANT 36 TO PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE 37 NEED NOT BE DISCLOSED AGAIN. 38 (C) ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING 39 OR RECORDING, MADE BY PERSONS WHO HAVE EVIDENCE OR INFORMATION RELEVANT 40 TO ANY OFFENSE CHARGED OR TO A POTENTIAL DEFENSE THERETO, INCLUDING 41 THOSE THAT WERE SOLELY IN THE POSSESSION OF POLICE OR ANOTHER LAW 42 ENFORCEMENT AGENCY AT THE TIME OF PHASE ONE DISCOVERY. STATEMENTS PREVI- 43 OUSLY DISCLOSED PURSUANT TO PARAGRAPH (F) OF SUBDIVISION TWO OF SECTION 44 245.20 OF THIS ARTICLE NEED NOT BE DISCLOSED AGAIN. 45 (D) ALL EVIDENCE AND INFORMATION, INCLUDING THAT WHICH WAS SOLELY 46 KNOWN TO POLICE OR OTHER LAW ENFORCEMENT AGENCIES AT THE TIME OF PHASE 47 ONE DISCOVERY, AND WHETHER OR NOT IT IS ADMISSIBLE OR RECORDED IN TANGI- 48 BLE FORM, THAT TENDS TO (I) EXCULPATE THE DEFENDANT; (II) MITIGATE THE 49 DEFENDANT'S CULPABILITY AS TO A CHARGED OFFENSE; (III) SUPPORT A POTEN- 50 TIAL DEFENSE TO A CHARGED OFFENSE; (IV) PROVIDE A BASIS FOR A MOTION TO 51 SUPPRESS EVIDENCE ON CONSTITUTIONAL GROUNDS; (V) IMPUGN THE CREDIBILITY 52 OF A PROSECUTION WITNESS, INFORMANT OR EVIDENCE; OR (VI) MITIGATE 53 PUNISHMENT. EVIDENCE OR INFORMATION PREVIOUSLY DISCLOSED PURSUANT TO 54 PARAGRAPH (G) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE NEED 55 NOT BE DISCLOSED AGAIN. S. 7947 6 1 (E) A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE TO PERSONS 2 WHO MAY BE CALLED AS WITNESSES, AS WELL AS REQUESTS FOR CONSIDERATION BY 3 PERSONS WHO MAY BE CALLED AS WITNESSES, AND COPIES OF ALL DOCUMENTS 4 RELEVANT TO A PROMISE, REWARD OR INDUCEMENT. 5 (F) ALL TANGIBLE PROPERTY THAT THE PROSECUTION INTENDS TO INTRODUCE IN 6 ITS CASE-IN-CHIEF AT TRIAL OR A PRE-TRIAL HEARING. DISCOVERY OF ITEMS 7 UNDER THIS PARAGRAPH MAY BE CONDITIONED ON SERVICE OF A DEMAND TO 8 PRODUCE MADE BY THE DEFENDANT, IF IN PHASE ONE DISCOVERY THE PROSECUTION 9 TIMELY SERVED NOTICE ON THE DEFENDANT THAT A DEMAND TO PRODUCE ITEMS 10 UNDER THIS PARAGRAPH WOULD HAVE TO BE SERVED ON THE PROSECUTION WITHIN 11 THIRTY DAYS OF THAT NOTICE. 12 (G) ALL TAPES OR OTHER ELECTRONIC RECORDINGS WHICH THE PROSECUTION 13 INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING. 14 (H) ALL PHOTOGRAPHS AND DRAWINGS MADE OR COMPLETED BY A PUBLIC SERVANT 15 ENGAGED IN LAW ENFORCEMENT ACTIVITY, OR WHICH WERE MADE BY A PERSON WHOM 16 THE PROSECUTOR INTENDS TO CALL AS A WITNESS AT TRIAL OR A PRE-TRIAL 17 HEARING, OR WHICH THE PROSECUTION INTENDS TO INTRODUCE AT TRIAL OR A 18 PRE-TRIAL HEARING. 19 (I) ALL PHOTOGRAPHS, PHOTOCOPIES AND REPRODUCTIONS MADE BY OR AT THE 20 DIRECTION OF LAW ENFORCEMENT PERSONNEL OF ANY PROPERTY PRIOR TO ITS 21 RELEASE PURSUANT TO SECTION 450.10 OF THE PENAL LAW. 22 (J) ALL REPORTS AND DOCUMENTS CONCERNING PHYSICAL OR MENTAL EXAMINA- 23 TIONS, OR SCIENTIFIC TESTS OR EXPERIMENTS OR COMPARISONS, RELATING TO 24 THE CRIMINAL ACTION OR PROCEEDING WHICH WERE MADE BY OR AT THE REQUEST 25 OR DIRECTION OF A PUBLIC SERVANT ENGAGED IN LAW ENFORCEMENT ACTIVITY, OR 26 WHICH WERE MADE BY A PERSON WHOM THE PROSECUTOR INTENDS TO CALL AS A 27 WITNESS AT TRIAL OR A PRE-TRIAL HEARING, OR WHICH THE PROSECUTION 28 INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING. 29 (K) EXPERT OPINION EVIDENCE, INCLUDING THE NAME, BUSINESS ADDRESS, 30 CURRENT CURRICULUM VITAE, AND A LIST OF PUBLICATIONS OF EACH EXPERT 31 WITNESS WHOM THE PROSECUTOR INTENDS TO CALL AS A WITNESS AT TRIAL OR A 32 PRE-TRIAL HEARING, AND ALL REPORTS PREPARED BY THE EXPERT THAT PERTAIN 33 TO THE CASE, OR IF NO REPORT IS PREPARED, A WRITTEN STATEMENT OF THE 34 FACTS AND OPINIONS TO WHICH THE EXPERT IS EXPECTED TO TESTIFY AND A 35 SUMMARY OF THE GROUNDS FOR EACH OPINION. THIS PARAGRAPH DOES NOT ALTER 36 OR IN ANY WAY AFFECT THE PROCEDURES, OBLIGATIONS OR RIGHTS SET FORTH IN 37 SECTION 250.10 OF THIS TITLE. IF IN THE EXERCISE OF REASONABLE DILIGENCE 38 THIS INFORMATION IS UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD 39 SPECIFIED IN SUBDIVISION ONE OF THIS SECTION, THAT PERIOD SHALL BE 40 STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS 41 ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE 42 AND NOT LATER THAN SIXTY CALENDAR DAYS BEFORE A SCHEDULED TRIAL DATE, 43 UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10 OF THIS ARTICLE. 44 (L) (I) IF COUNSEL FOR THE DEFENDANT HAS ACCESS TO A DATABASE BY WHICH 45 TO OBTAIN THE COMPLETE CRIMINAL HISTORY OF ALL DEFENDANTS AND ALL 46 PERSONS DESIGNATED AS POTENTIAL PROSECUTION WITNESSES PURSUANT TO PARA- 47 GRAPH (D) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE, THE 48 PROSECUTOR SHALL EITHER DISCLOSE A LIST OF THE BIRTH DATES AND KNOWN 49 ALIASES OF THOSE PERSONS, OR PROVIDE THE DEFENDANT WITH THE CRIMINAL 50 HISTORY INFORMATION. (II) IF COUNSEL FOR THE DEFENDANT LACKS ACCESS TO A 51 DATABASE BY WHICH TO OBTAIN THE COMPLETE CRIMINAL HISTORY OF ALL DEFEND- 52 ANTS AND ALL PERSONS DESIGNATED AS POTENTIAL PROSECUTION WITNESSES 53 PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS 54 ARTICLE, THE PROSECUTOR SHALL EITHER PROVIDE COUNSEL FOR THE DEFENDANT 55 WITH ACCESS TO SUCH A DATABASE AND DISCLOSE A LIST OF THE BIRTH DATES S. 7947 7 1 AND KNOWN ALIASES OF THOSE PERSONS, OR PROVIDE THE DEFENDANT WITH THE 2 CRIMINAL HISTORY INFORMATION. 3 (M) WHEN IT IS KNOWN TO THE PROSECUTION, THE EXISTENCE OF ANY PENDING 4 CRIMINAL ACTION AGAINST ALL PERSONS DESIGNATED AS POTENTIAL PROSECUTION 5 WITNESSES PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.20 6 OF THIS ARTICLE. 7 (N) IN ANY PROSECUTION ALLEGING A VIOLATION OF THE VEHICLE AND TRAFFIC 8 LAW, WHERE THE DEFENDANT IS CHARGED BY INDICTMENT, SUPERIOR COURT INFOR- 9 MATION, PROSECUTOR'S INFORMATION, INFORMATION, OR SIMPLIFIED INFORMA- 10 TION, THE MOST RECENT RECORD OF INSPECTION, CALIBRATION AND REPAIR OF 11 MACHINES AND INSTRUMENTS UTILIZED TO PERFORM ANY SCIENTIFIC TESTS AND 12 EXPERIMENTS AND THE CERTIFICATION CERTIFICATE, IF ANY, HELD BY THE OPER- 13 ATOR OF THE MACHINE OR INSTRUMENT, AND ALL OTHER DISCLOSURES REQUIRED 14 UNDER THIS ARTICLE. 15 (O) IN ANY PROSECUTION ALLEGING A VIOLATION OF SECTION 156.05 OR 16 156.10 OF THE PENAL LAW, THE TIME, PLACE AND MANNER SUCH VIOLATION 17 OCCURRED. 18 S 245.40 RECIPROCAL DISCOVERY OBLIGATION OF THE DEFENDANT. 19 1. TIMING OF RECIPROCAL DISCOVERY FOR THE PROSECUTION. THE DEFENDANT 20 SHALL PERFORM HIS OR HER RECIPROCAL DISCOVERY OBLIGATIONS UNDER THIS 21 SECTION WITHIN THIRTY CALENDAR DAYS AFTER BEING SERVED WITH THE PROSE- 22 CUTION'S CERTIFICATE OF COMPLIANCE PURSUANT TO SUBDIVISION ONE OF 23 SECTION 245.65 OF THIS ARTICLE. PORTIONS OF MATERIALS CLAIMED TO BE 24 NON-DISCOVERABLE MAY BE WITHHELD PENDING A DETERMINATION AND RULING OF 25 THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE PROSECUTION 26 SHALL BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED 27 UNDER THIS SECTION, AND THE DISCOVERABLE PORTIONS OF SUCH MATERIALS 28 SHALL BE DISCLOSED IF PRACTICABLE. 29 2. RECIPROCAL DISCOVERY FOR THE PROSECUTION. THE DEFENDANT SHALL, 30 SUBJECT TO CONSTITUTIONAL LIMITATIONS, DISCLOSE TO THE PROSECUTION, AND 31 PERMIT THE PROSECUTION TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF 32 THE FOLLOWING ITEMS AND INFORMATION WHEN IT IS WITHIN THE DEFENDANT'S OR 33 COUNSEL FOR THE DEFENDANT'S POSSESSION OR CONTROL: 34 (A) THE NAMES, KNOWN ALIASES, ADDRESSES AND BIRTH DATES OF ALL PERSONS 35 OTHER THAN THE DEFENDANT WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES 36 AT TRIAL OR A PRE-TRIAL HEARING. DISCLOSURE OF THIS INFORMATION FOR A 37 PERSON WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS FOR THE SOLE 38 PURPOSE OF IMPEACHING A PROSECUTION WITNESS IS NOT REQUIRED UNTIL AFTER 39 THE PROSECUTION WITNESS HAS TESTIFIED. 40 (B) ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING 41 OR RECORDING, MADE BY ALL PERSONS OTHER THAN THE DEFENDANT WHOM THE 42 DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL OR A PRE-TRIAL HEARING; 43 EXCEPT THAT DISCLOSURE OF SUCH STATEMENTS MADE BY A PERSON WHOM THE 44 DEFENDANT INTENDS TO CALL AS A WITNESS FOR THE SOLE PURPOSE OF IMPEACH- 45 ING A PROSECUTION WITNESS IS NOT REQUIRED UNTIL AFTER THE PROSECUTION 46 WITNESS HAS TESTIFIED. 47 (C) A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE TO PERSONS 48 WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL OR A PRE-TRIAL 49 HEARING, AS WELL AS REQUESTS FOR CONSIDERATION BY SUCH PERSONS, AND 50 COPIES OF ALL DOCUMENTS RELEVANT TO A PROMISE, REWARD OR INDUCEMENT. 51 (D) ALL TANGIBLE PROPERTY THAT THE DEFENDANT INTENDS TO INTRODUCE IN 52 THE DEFENDANT'S CASE-IN-CHIEF AT TRIAL OR A PRE-TRIAL HEARING. 53 (E) ALL TAPES OR OTHER ELECTRONIC RECORDINGS WHICH THE DEFENDANT 54 INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING. 55 (F) ALL PHOTOGRAPHS AND DRAWINGS WHICH THE DEFENDANT INTENDS TO INTRO- 56 DUCE AT TRIAL OR A PRE-TRIAL HEARING. S. 7947 8 1 (G) ALL REPORTS AND DOCUMENTS CONCERNING PHYSICAL OR MENTAL EXAMINA- 2 TIONS, OR SCIENTIFIC TESTS OR EXPERIMENTS OR COMPARISONS, WHICH THE 3 DEFENDANT INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING, OR WHICH 4 WERE MADE BY A PERSON WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS AT 5 TRIAL OR A PRE-TRIAL HEARING. 6 (H) INTENDED EXPERT OPINION EVIDENCE, INCLUDING THE NAME, BUSINESS 7 ADDRESS, CURRENT CURRICULUM VITAE, AND A LIST OF PUBLICATIONS OF EACH 8 EXPERT WITNESS WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS AT TRIAL 9 OR A PRE-TRIAL HEARING, AND ALL REPORTS PREPARED BY THE EXPERT THAT 10 PERTAIN TO THE CASE, OR IF NO REPORT IS PREPARED, A WRITTEN STATEMENT OF 11 THE FACTS AND OPINIONS TO WHICH THE EXPERT IS EXPECTED TO TESTIFY AND A 12 SUMMARY OF THE GROUNDS FOR EACH OPINION. THIS PARAGRAPH DOES NOT ALTER 13 OR IN ANY WAY AFFECT THE PROCEDURES, OBLIGATIONS OR RIGHTS SET FORTH IN 14 SECTION 250.10 OF THIS TITLE. IF IN THE EXERCISE OF REASONABLE DILIGENCE 15 THIS INFORMATION IS UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD 16 SPECIFIED IN SUBDIVISION ONE OF THIS SECTION, THAT PERIOD SHALL BE 17 STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS 18 ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE 19 AND NOT LATER THAN THIRTY CALENDAR DAYS BEFORE A SCHEDULED TRIAL DATE, 20 UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10 OF THIS ARTICLE. 21 S 245.45 DISCLOSURE OF PRIOR MISCONDUCT OR CRIMINAL ACTS. 22 1. USE AT TRIAL. NOT LATER THAN FIFTEEN CALENDAR DAYS BEFORE A SCHED- 23 ULED TRIAL DATE, THE PROSECUTION SHALL DISCLOSE TO THE DEFENDANT A LIST 24 OF ALL MISCONDUCT AND CRIMINAL ACTS OF THE DEFENDANT NOT CHARGED IN THE 25 INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR- 26 MATION, OR SIMPLIFIED INFORMATION, WHICH THE PROSECUTION INTENDS TO USE 27 AT TRIAL FOR PURPOSES OF: 28 (A) IMPEACHING THE CREDIBILITY OF THE DEFENDANT; OR 29 (B) AS SUBSTANTIVE PROOF OF ANY MATERIAL ISSUE IN THE CASE. 30 2. NOTIFICATION FOR WHAT PURPOSE. IN ADDITION, THE PROSECUTOR SHALL 31 DESIGNATE WHETHER HE OR SHE INTENDS TO USE EACH LISTED ACT FOR IMPEACH- 32 MENT AND/OR AS SUBSTANTIVE PROOF. 33 S 245.50 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT. 34 1. AVAILABILITY. AFTER THE FILING OF AN ACCUSATORY INSTRUMENT, AND 35 SUBJECT TO CONSTITUTIONAL LIMITATIONS, THE COURT MAY, UPON MOTION OF THE 36 PROSECUTION SHOWING PROBABLE CAUSE TO BELIEVE THE DEFENDANT HAS COMMIT- 37 TED THE CRIME, A CLEAR INDICATION THAT RELEVANT MATERIAL EVIDENCE WILL 38 BE FOUND, AND THAT THE METHOD USED TO SECURE IT IS SAFE AND RELIABLE, 39 REQUIRE A DEFENDANT TO PROVIDE NON-TESTIMONIAL EVIDENCE, INCLUDING TO: 40 (A) APPEAR IN A LINEUP; 41 (B) SPEAK FOR IDENTIFICATION BY A WITNESS OR POTENTIAL WITNESS; 42 (C) BE FINGERPRINTED; 43 (D) POSE FOR PHOTOGRAPHS NOT INVOLVING REENACTMENT OF AN EVENT; 44 (E) PERMIT THE TAKING OF SAMPLES OF THE DEFENDANT'S BLOOD, HAIR, AND 45 OTHER MATERIALS OF THE DEFENDANT'S BODY THAT INVOLVES NO UNREASONABLE 46 INTRUSION THEREOF; 47 (F) PROVIDE SPECIMENS OF THE DEFENDANT'S HANDWRITING; AND 48 (G) SUBMIT TO A REASONABLE PHYSICAL OR MEDICAL INSPECTION OF THE 49 DEFENDANT'S BODY. 50 2. LIMITATIONS. THIS SECTION SHALL NOT BE CONSTRUED TO ALTER OR IN ANY 51 WAY AFFECT THE ISSUANCE OF A SIMILAR COURT ORDER, AS MAY BE AUTHORIZED 52 BY LAW, BEFORE THE FILING OF AN ACCUSATORY INSTRUMENT, CONSISTENT WITH 53 SUCH RIGHTS AS THE DEFENDANT MAY DERIVE FROM THE STATE CONSTITUTION OR 54 THE UNITED STATES CONSTITUTION. THIS SECTION SHALL NOT BE CONSTRUED TO 55 ALTER OR IN ANY WAY AFFECT THE ADMINISTRATION OF A CHEMICAL TEST WHERE S. 7947 9 1 OTHERWISE AUTHORIZED. AN ORDER PURSUANT TO THIS SECTION MAY BE DENIED, 2 LIMITED OR CONDITIONED AS PROVIDED IN SECTION 245.10 OF THIS ARTICLE. 3 S 245.55 COURT ORDERS FOR PRESERVATION, ACCESS OR DISCOVERY. 4 1. ORDER TO PRESERVE EVIDENCE. AT ANY TIME, A PARTY MAY MOVE FOR A 5 COURT ORDER TO ANY INDIVIDUAL, AGENCY OR OTHER ENTITY IN POSSESSION, 6 CUSTODY OR CONTROL OF ITEMS WHICH RELATE TO THE SUBJECT MATTER OF THE 7 CASE OR ARE OTHERWISE RELEVANT, REQUIRING THAT SUCH ITEMS BE PRESERVED 8 FOR A SPECIFIED PERIOD OF TIME. THE COURT SHALL HEAR AND RULE UPON SUCH 9 MOTIONS EXPEDITIOUSLY. THE COURT MAY MODIFY OR VACATE SUCH AN ORDER UPON 10 A SHOWING THAT PRESERVATION OF PARTICULAR EVIDENCE WILL CREATE SIGNIF- 11 ICANT HARDSHIP, ON CONDITION THAT THE PROBATIVE VALUE OF THAT EVIDENCE 12 IS PRESERVED BY A SPECIFIED ALTERNATIVE MEANS. 13 2. ORDER TO GRANT ACCESS TO PREMISES. AT ANY TIME, THE DEFENDANT MAY 14 MOVE FOR A COURT ORDER TO ANY INDIVIDUAL, AGENCY OR OTHER ENTITY IN 15 POSSESSION, CUSTODY OR CONTROL OF A CRIME SCENE OR OTHER PREMISES THAT 16 RELATES TO THE SUBJECT MATTER OF THE CASE OR IS OTHERWISE RELEVANT, 17 REQUIRING THAT COUNSEL FOR THE DEFENDANT BE GRANTED PROMPT AND REASON- 18 ABLE ACCESS TO INSPECT, PHOTOGRAPH OR MEASURE THAT CRIME SCENE OR THOSE 19 PREMISES, AND THAT THE CONDITION OF THE CRIME SCENE OR PREMISES REMAIN 20 UNCHANGED IN THE INTERIM. THE COURT SHALL HEAR AND RULE UPON SUCH 21 MOTIONS EXPEDITIOUSLY. THE COURT MAY MODIFY OR VACATE SUCH AN ORDER UPON 22 A SHOWING THAT GRANTING ACCESS TO A PARTICULAR CRIME SCENE OR PREMISES 23 WILL CREATE SIGNIFICANT HARDSHIP, ON CONDITION THAT THE PROBATIVE VALUE 24 OF THAT LOCATION IS PRESERVED BY A SPECIFIED ALTERNATIVE MEANS. 25 3. DISCRETIONARY DISCOVERY BY ORDER OF THE COURT. THE COURT IN ITS 26 DISCRETION MAY, UPON A SHOWING BY THE DEFENDANT THAT THE REQUEST IS 27 REASONABLE AND THAT THE DEFENDANT IS UNABLE WITHOUT UNDUE HARDSHIP TO 28 OBTAIN THE SUBSTANTIAL EQUIVALENT BY OTHER MEANS, ORDER THE PROSECUTION, 29 OR ANY INDIVIDUAL, AGENCY OR OTHER ENTITY SUBJECT TO THE JURISDICTION OF 30 THE COURT, TO MAKE AVAILABLE FOR DISCLOSURE TO THE DEFENDANT ANY MATERI- 31 AL OR INFORMATION WHICH POTENTIALLY RELATES TO THE SUBJECT MATTER OF THE 32 CASE OR IS OTHERWISE RELEVANT. A MOTION UNDER THIS SUBDIVISION MUST BE 33 ON NOTICE TO ANY PERSON OR ENTITY AFFECTED BY THE ORDER. THE COURT MAY, 34 UPON REQUEST OF ANY PERSON OR ENTITY AFFECTED BY THE ORDER, VACATE OR 35 MODIFY THE ORDER IF COMPLIANCE WOULD BE UNREASONABLE OR OPPRESSIVE. THE 36 COURT MAY PERMIT A PARTY SEEKING OR OPPOSING A DISCRETIONARY ORDER OF 37 DISCOVERY UNDER THIS SUBDIVISION, OR ANOTHER AFFECTED PERSON OR ENTITY, 38 TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN CAMERA. ANY SUCH PAPERS AND A 39 TRANSCRIPT OF SUCH TESTIMONY SHALL BE SEALED AND SHALL CONSTITUTE A PART 40 OF THE RECORD ON APPEAL. 41 S 245.60 MATERIAL HELD BY OTHER GOVERNMENTAL PERSONNEL. 42 UPON THE DEFENDANT'S REQUEST AND DESIGNATION OF MATERIAL OR INFORMA- 43 TION WHICH WOULD BE DISCOVERABLE UNDER SECTION 245.20 OR 245.30 OF THIS 44 ARTICLE IF IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR 45 PERSONS UNDER THE PROSECUTION'S DIRECTION OR CONTROL, BUT WHICH IS, IN 46 FACT, IN THE POSSESSION, CUSTODY OR CONTROL OF OTHER GOVERNMENTAL 47 PERSONNEL, THE PROSECUTOR SHALL MAKE A DILIGENT, GOOD FAITH EFFORT TO 48 ASCERTAIN THE EXISTENCE OF SUCH MATERIAL OR INFORMATION AND TO CAUSE IT 49 TO BE MADE AVAILABLE FOR DISCOVERY. IF THE PROSECUTOR'S EFFORT IS UNSUC- 50 CESSFUL AND SUCH MATERIAL OR INFORMATION OR OTHER GOVERNMENTAL PERSONNEL 51 ARE SUBJECT TO THE JURISDICTION OF THE COURT, THE COURT, UPON MOTION OF 52 THE DEFENDANT, SHALL ISSUE SUITABLE SUBPOENAS OR ORDERS TO CAUSE SUCH 53 MATERIAL OR INFORMATION TO BE MADE AVAILABLE FOR DISCOVERY. 54 S 245.65 CERTIFICATES OF COMPLIANCE. 55 1. BY THE PROSECUTION. WHEN THE PROSECUTION HAS PROVIDED THE DISCOVERY 56 REQUIRED BY SECTIONS 245.20 AND 245.30 OF THIS ARTICLE, EXCEPT FOR ANY S. 7947 10 1 ITEMS OR INFORMATION THAT ARE THE SUBJECT OF AN ORDER PURSUANT TO 2 SECTION 245.10 OF THIS ARTICLE, IT SHALL SERVE UPON THE DEFENDANT AND 3 FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE. THE CERTIFICATE SHALL 4 STATE THAT, AFTER EXERCISING DUE DILIGENCE AND MAKING REASONABLE 5 INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL AND INFORMATION SUBJECT 6 TO DISCOVERY, THE PROSECUTOR HAS DISCLOSED AND MADE AVAILABLE ALL KNOWN 7 MATERIAL AND INFORMATION SUBJECT TO DISCOVERY. IT SHALL ALSO IDENTIFY 8 THE ITEMS PROVIDED. IF ADDITIONAL DISCOVERY IS SUBSEQUENTLY PROVIDED 9 PRIOR TO TRIAL PURSUANT TO SECTION 245.80 OF THIS ARTICLE, A SUPPLE- 10 MENTAL CERTIFICATE SHALL BE SERVED UPON THE DEFENDANT AND FILED WITH THE 11 COURT IDENTIFYING THE ADDITIONAL MATERIAL AND INFORMATION PROVIDED. NO 12 ADVERSE CONSEQUENCE TO THE PROSECUTION OR THE PROSECUTOR SHALL RESULT 13 FROM THE FILING OF A CERTIFICATE OF COMPLIANCE IN GOOD FAITH; BUT THE 14 COURT MAY GRANT A REMEDY FOR A DISCOVERY VIOLATION AS PROVIDED IN 15 SECTION 245.90 OF THIS ARTICLE. 16 2. BY THE DEFENDANT. WHEN THE DEFENDANT HAS PROVIDED ALL DISCOVERY 17 REQUIRED BY SECTION 245.40 OF THIS ARTICLE, EXCEPT FOR ANY ITEMS OR 18 INFORMATION THAT ARE THE SUBJECT OF AN ORDER PURSUANT TO SECTION 245.10 19 OF THIS ARTICLE, COUNSEL FOR THE DEFENDANT SHALL SERVE UPON THE PROSE- 20 CUTION AND FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE. THE CERTIF- 21 ICATE SHALL STATE THAT, AFTER EXERCISING DUE DILIGENCE AND MAKING 22 REASONABLE INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL AND INFORMA- 23 TION SUBJECT TO DISCOVERY, COUNSEL FOR THE DEFENDANT HAS DISCLOSED AND 24 MADE AVAILABLE ALL KNOWN MATERIAL AND INFORMATION SUBJECT TO DISCOVERY. 25 IT SHALL ALSO IDENTIFY THE ITEMS PROVIDED. IF ADDITIONAL DISCOVERY IS 26 SUBSEQUENTLY PROVIDED PRIOR TO TRIAL PURSUANT TO SECTION 245.80 OF THIS 27 ARTICLE, A SUPPLEMENTAL CERTIFICATE SHALL BE SERVED UPON THE PROSECUTION 28 AND FILED WITH THE COURT IDENTIFYING THE ADDITIONAL MATERIAL AND INFOR- 29 MATION PROVIDED. NO ADVERSE CONSEQUENCE TO THE DEFENDANT OR COUNSEL FOR 30 THE DEFENDANT SHALL RESULT FROM THE FILING OF A CERTIFICATE OF COMPLI- 31 ANCE IN GOOD FAITH; BUT THE COURT MAY GRANT A REMEDY FOR A DISCOVERY 32 VIOLATION AS PROVIDED IN SECTION 245.90 OF THIS ARTICLE. 33 S 245.70 COURT ORDERED PROCEDURES TO FACILITATE COMPLIANCE. 34 TO FACILITATE COMPLIANCE WITH THIS ARTICLE, AND TO REDUCE OR STREAM- 35 LINE LITIGATION OF ANY DISPUTES ABOUT DISCOVERY, THE COURT IN ITS 36 DISCRETION MAY ISSUE AN ORDER: 37 1. REQUIRING THAT THE PROSECUTOR AND COUNSEL FOR THE DEFENDANT DILI- 38 GENTLY CONFER TO ATTEMPT TO REACH AN ACCOMMODATION AS TO ANY DISPUTE 39 CONCERNING DISCOVERY PRIOR TO SEEKING A RULING FROM THE COURT; 40 2. REQUIRING A DISCOVERY COMPLIANCE CONFERENCE AT A SPECIFIED TIME 41 PRIOR TO TRIAL BETWEEN THE PROSECUTOR, COUNSEL FOR ALL DEFENDANTS, AND 42 THE COURT OR ITS STAFF; 43 3. REQUIRING THE PROSECUTION TO FILE AN ADDITIONAL CERTIFICATE OF 44 COMPLIANCE THAT STATES THAT THE PROSECUTOR AND/OR AN APPROPRIATE NAMED 45 AGENT HAS MADE REASONABLE INQUIRIES OF ALL POLICE OFFICERS AND OTHER 46 PERSONS WHO HAVE PARTICIPATED IN INVESTIGATING OR EVALUATING THE CASE 47 ABOUT THE EXISTENCE OF ANY FAVORABLE EVIDENCE OR INFORMATION WITHIN 48 PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.30 OF THIS ARTICLE, 49 INCLUDING SUCH EVIDENCE OR INFORMATION THAT WAS NOT REDUCED TO WRITING 50 OR OTHERWISE MEMORIALIZED OR PRESERVED AS EVIDENCE, AND HAS DISCLOSED 51 ANY SUCH INFORMATION TO THE DEFENDANT; AND/OR 52 4. REQUIRING OTHER MEASURES OR PROCEEDINGS DESIGNED TO CARRY INTO 53 EFFECT THE GOALS OF THIS ARTICLE. 54 S 245.75 FLOW OF INFORMATION WITH POLICE. 55 1. PROVISION OF LAW ENFORCEMENT AGENCY FILES. UPON REQUEST BY THE 56 PROSECUTION, A NEW YORK STATE LAW ENFORCEMENT AGENCY SHALL MAKE AVAIL- S. 7947 11 1 ABLE TO THE PROSECUTION A COMPLETE COPY OF ITS COMPLETE FILES RELATED TO 2 THE INVESTIGATION OF THE CASE OR THE PROSECUTION OF THE DEFENDANT FOR 3 COMPLIANCE WITH THIS ARTICLE, UNLESS EXCEPTIONAL CIRCUMSTANCES AS FOUND 4 BY SENIOR LAW ENFORCEMENT PERSONNEL JUSTIFY WITHHOLDING OF ANY MATERI- 5 ALS; BUT THE PROSECUTION SHALL BE NOTIFIED IN WRITING THAT INFORMATION 6 HAS NOT BEEN PROVIDED, UNLESS EXCEPTIONAL CIRCUMSTANCES REQUIRE OTHER- 7 WISE. 8 2. SUFFICIENT COMMUNICATION FOR COMPLIANCE. THE PROSECUTOR SHALL 9 ENDEAVOR TO ENSURE THAT A FLOW OF INFORMATION IS MAINTAINED BETWEEN THE 10 POLICE AND OTHER INVESTIGATIVE PERSONNEL AND HIS OR HER OFFICE SUFFI- 11 CIENT TO PLACE WITHIN HIS OR HER POSSESSION OR CONTROL ALL MATERIAL AND 12 INFORMATION PERTINENT TO THE DEFENDANT AND THE OFFENSE OR OFFENSES 13 CHARGED, INCLUDING ANY EVIDENCE OR INFORMATION WHICH TENDS TO EXCULPATE 14 THE DEFENDANT OR TO MITIGATE THE DEFENDANT'S CULPABILITY AS TO A CHARGED 15 OFFENSE, OR WHICH TENDS TO SUPPORT A POTENTIAL DEFENSE THERETO, OR WHICH 16 TENDS TO PROVIDE A BASIS FOR A MOTION TO SUPPRESS EVIDENCE ON CONSTITU- 17 TIONAL GROUNDS, OR WHICH TENDS TO IMPUGN THE CREDIBILITY OF A PROSE- 18 CUTION WITNESS, INFORMANT OR EVIDENCE, OR WHICH WOULD TEND TO MITIGATE 19 THE PUNISHMENT OF THE DEFENDANT. 20 S 245.80 CONTINUING DUTY TO DISCLOSE. 21 IF EITHER THE PROSECUTION OR THE DEFENDANT SUBSEQUENTLY LEARNS OF 22 ADDITIONAL MATERIAL OR INFORMATION WHICH IT WOULD HAVE BEEN UNDER A DUTY 23 TO DISCLOSE PURSUANT TO ANY PROVISIONS OF THIS ARTICLE AT THE TIME OF A 24 PREVIOUS DISCOVERY OBLIGATION OR DISCOVERY ORDER, IT SHALL EXPEDITIOUSLY 25 NOTIFY THE OTHER PARTY AND DISCLOSE THE ADDITIONAL MATERIAL OR INFORMA- 26 TION AS REQUIRED FOR INITIAL DISCOVERY UNDER THIS ARTICLE. THIS 27 PROVISION ALSO REQUIRES EXPEDITIOUS DISCLOSURE BY THE PROSECUTION OF 28 MATERIAL OR INFORMATION THAT BECAME RELEVANT TO THE CASE OR DISCOVERABLE 29 BASED UPON RECIPROCAL DISCOVERY RECEIVED FROM THE DEFENDANT PURSUANT TO 30 SECTION 245.40 OF THIS ARTICLE. 31 S 245.85 WORK PRODUCT. 32 THIS ARTICLE DOES NOT AUTHORIZE DISCOVERY BY A PARTY OF THOSE PORTIONS 33 OF RECORDS, REPORTS, CORRESPONDENCE, MEMORANDA, OR INTERNAL DOCUMENTS OF 34 THE ADVERSE PARTY WHICH ARE ONLY THE LEGAL RESEARCH, OPINIONS, THEORIES 35 OR CONCLUSIONS OF THE ADVERSE PARTY OR ITS ATTORNEY OR THE ATTORNEY'S 36 AGENTS, OR OF STATEMENTS OF A DEFENDANT, WRITTEN OR RECORDED OR SUMMA- 37 RIZED IN ANY WRITING OR RECORDING, MADE TO THE ATTORNEY FOR THE DEFEND- 38 ANT OR THE ATTORNEY'S AGENTS. 39 S 245.90 AVAILABILITY OF REMEDIES FOR VIOLATIONS. 40 1. NEED FOR REMEDY. (A) WHEN MATERIAL OR INFORMATION IS DISCOVERABLE 41 UNDER THIS ARTICLE BUT IS DISCLOSED BELATEDLY, THE COURT SHALL IMPOSE AN 42 APPROPRIATE REMEDY IF THE PARTY ENTITLED TO DISCLOSURE SHOWS THAT IT WAS 43 SIGNIFICANTLY PREJUDICED. IF THE UNTIMELY DISCLOSURE OCCURRED BECAUSE 44 THE PARTY RESPONSIBLE FAILED TO MAKE REASONABLY DILIGENT EFFORTS TO 45 COMPLY WITH THIS ARTICLE, THE COURT HAS DISCRETION TO IMPOSE AN APPRO- 46 PRIATE REMEDY IF THE PARTY ENTITLED TO DISCLOSURE SHOWS SOME PREJUDICE. 47 IN EITHER SITUATION THE PARTY ENTITLED TO DISCLOSURE SHALL BE GIVEN 48 REASONABLE TIME TO PREPARE AND RESPOND TO THE NEW MATERIAL. 49 (B) WHEN MATERIAL OR INFORMATION IS DISCOVERABLE UNDER THIS ARTICLE 50 BUT CANNOT BE DISCLOSED BECAUSE IT HAS BEEN LOST OR DESTROYED, THE COURT 51 SHALL IMPOSE AN APPROPRIATE REMEDY IF THE PARTY ENTITLED TO DISCLOSURE 52 SHOWS THAT THE LOST OR DESTROYED MATERIAL MAY HAVE CONTAINED SOME INFOR- 53 MATION RELEVANT TO A CONTESTED ISSUE. THE APPROPRIATE REMEDY IS THAT 54 WHICH IS PROPORTIONATE TO THE POTENTIAL WAYS IN WHICH THE LOST OR 55 DESTROYED MATERIAL REASONABLY COULD HAVE BEEN HELPFUL TO THE PARTY ENTI- 56 TLED TO DISCLOSURE. S. 7947 12 1 2. AVAILABLE REMEDIES. FOR FAILURE TO COMPLY WITH ANY DISCOVERY ORDER 2 IMPOSED OR ISSUED PURSUANT TO THIS ARTICLE, THE COURT MAY MAKE A FURTHER 3 ORDER FOR DISCOVERY, GRANT A CONTINUANCE, ORDER THAT A HEARING BE 4 REOPENED, ORDER THAT A WITNESS BE CALLED OR RECALLED, INSTRUCT THE JURY 5 THAT IT MAY DRAW AN ADVERSE INFERENCE REGARDING THE NONCOMPLIANCE, 6 PRECLUDE OR STRIKE A WITNESS'S TESTIMONY OR A PORTION OF A WITNESS'S 7 TESTIMONY, ADMIT OR EXCLUDE EVIDENCE, ORDER A MISTRIAL, ORDER THE 8 DISMISSAL OF ALL OR SOME OF THE CHARGES, OR MAKE SUCH OTHER ORDER AS IT 9 DEEMS JUST UNDER THE CIRCUMSTANCES; EXCEPT THAT ANY SANCTION AGAINST THE 10 DEFENDANT SHALL COMPORT WITH THE DEFENDANT'S CONSTITUTIONAL RIGHT TO 11 PRESENT A DEFENSE, AND PRECLUDING A DEFENSE WITNESS FROM TESTIFYING 12 SHALL BE PERMISSIBLE ONLY UPON A FINDING THAT THE DEFENDANT'S FAILURE TO 13 COMPLY WITH THE DISCOVERY OBLIGATION OR ORDER WAS WILLFUL AND MOTIVATED 14 BY A DESIRE TO OBTAIN A TACTICAL ADVANTAGE. 15 3. CONSEQUENCES OF NONDISCLOSURE OF STATEMENT OF TESTIFYING PROSE- 16 CUTION WITNESS. THE FAILURE OF THE PROSECUTOR OR ANY AGENT OF THE PROSE- 17 CUTOR TO DISCLOSE ANY WRITTEN OR RECORDED STATEMENT MADE BY A PROSE- 18 CUTION WITNESS WHICH RELATES TO THE SUBJECT MATTER OF THE WITNESS'S 19 TESTIMONY SHALL NOT CONSTITUTE GROUNDS FOR ANY COURT TO ORDER A NEW 20 PRE-TRIAL HEARING OR SET ASIDE A CONVICTION, OR REVERSE, MODIFY OR 21 VACATE A JUDGMENT OF CONVICTION, IN THE ABSENCE OF A SHOWING BY THE 22 DEFENDANT THAT THERE IS A REASONABLE POSSIBILITY THAT THE NON-DISCLOSURE 23 MATERIALLY CONTRIBUTED TO THE RESULT OF THE TRIAL OR OTHER PROCEEDING; 24 PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION SHALL AFFECT OR LIMIT 25 ANY RIGHT THE DEFENDANT MAY HAVE TO A REOPENED PRE-TRIAL HEARING WHEN 26 SUCH STATEMENTS WERE DISCLOSED BEFORE THE CLOSE OF EVIDENCE AT TRIAL. 27 S 245.95 ADMISSIBILITY OF DISCOVERY. 28 THE FACT THAT A PARTY HAS INDICATED DURING THE DISCOVERY PROCESS AN 29 INTENTION TO OFFER SPECIFIED EVIDENCE OR TO CALL A SPECIFIED WITNESS IS 30 NOT ADMISSIBLE IN EVIDENCE OR GROUNDS FOR ADVERSE COMMENT AT A HEARING 31 OR A TRIAL. 32 S 3. Subdivision 9 of section 65.20 of the criminal procedure law, as 33 added by chapter 505 of the laws of 1985 and as renumbered by chapter 34 548 of the laws of 2007, is amended to read as follows: 35 9. (a) Prior to the commencement of the hearing conducted pursuant to 36 subdivision five of this section, the district attorney shall, subject 37 to a protective order, comply with the provisions of subdivision [one] 38 TWO of section [240.45] 245.30 of this chapter as they concern any 39 witness whom the district attorney intends to call at the hearing and 40 the child witness. 41 (b) Before a defendant calls a witness at such hearing, he or she 42 must, subject to a protective order, comply with the provisions of 43 subdivision two of section [240.45] 245.30 of this chapter as they 44 concern all the witnesses the defendant intends to call at such hearing. 45 S 4. Subdivision 5 of section 200.95 of the criminal procedure law, as 46 added by chapter 558 of the laws of 1982, is amended to read as follows: 47 5. Court ordered bill of particulars. Where a prosecutor has timely 48 served a written refusal pursuant to subdivision four of this section 49 and upon motion, made in writing, of a defendant, who has made a request 50 for a bill of particulars and whose request has not been complied with 51 in whole or in part, the court must, to the extent a protective order is 52 not warranted, order the prosecutor to comply with the request if it is 53 satisfied that the items of factual information requested are authorized 54 to be included in a bill of particulars, and that such information is 55 necessary to enable the defendant adequately to prepare or conduct his 56 defense and, if the request was untimely, a finding of good cause for S. 7947 13 1 the delay. Where a prosecutor has not timely served a written refusal 2 pursuant to subdivision four of this section the court must, unless it 3 is satisfied that the people have shown good cause why such an order 4 should not be issued, issue an order requiring the prosecutor to comply 5 or providing for any other [order] REMEDY authorized by [subdivision one 6 of] section [240.70] 245.90 OF THIS TITLE. 7 S 5. Paragraph (c) of subdivision 1 of section 255.10 of the criminal 8 procedure law, as added by chapter 763 of the laws of 1974, is amended 9 to read as follows: 10 (c) granting discovery pursuant to article [240] 245; or 11 S 6. Section 340.30 of the criminal procedure law is amended to read 12 as follows: 13 S 340.30 Pre-trial discovery and notices of defenses. 14 The provisions of article two hundred [forty] FORTY-FIVE, concerning 15 pre-trial discovery by a defendant under indictment in a superior court, 16 and article two hundred fifty, concerning pre-trial notice to the people 17 by a defendant under indictment in a superior court who intends to 18 advance a trial defense of mental disease or defect or of alibi, apply 19 to a prosecution of an information in a local criminal court. 20 S 7. Subdivision 14 of section 400.27 of the criminal procedure law, 21 as added by chapter 1 of the laws of 1995, is amended to read as 22 follows: 23 14. (a) At a reasonable time prior to the sentencing proceeding or a 24 mental retardation hearing: 25 (i) the prosecutor shall, unless previously disclosed and subject to a 26 protective order, make available to the defendant the statements and 27 information specified in subdivision [one] TWO of section [240.45] 28 245.20 AND SUBDIVISION TWO OF SECTION 245.30 and make available for 29 inspection, photographing, copying or testing the property specified in 30 [subdivision one of section 240.20] SUCH SECTIONS; and 31 (ii) the defendant shall, unless previously disclosed and subject to a 32 protective order, make available to the prosecution the statements and 33 information specified in subdivision two of section [240.45] 245.40 and 34 make available for inspection, photographing, copying or testing, 35 subject to constitutional limitations, the reports, documents and other 36 property specified in [subdivision one of section 240.30] SUCH SECTION. 37 (b) Where a party refuses to make disclosure pursuant to this section, 38 the provisions of [section 240.35, subdivision one of section 240.40 and 39 section 240.50] SECTIONS 245.55, 245.70 AND 245.90 shall apply. 40 (c) If, after complying with the provisions of this section or an 41 order pursuant thereto, a party finds either before or during a sentenc- 42 ing proceeding or mental retardation hearing, additional material 43 subject to discovery or covered by court order, the party shall promptly 44 make disclosure or apply for a protective order PURSUANT TO SECTION 45 245.10. 46 (d) If the court finds that a party has failed to comply with any of 47 the provisions of this section, the court may enter any of the [orders] 48 REMEDIES specified in subdivision one of section [240.70] 245.90. 49 S 8. The opening paragraph of paragraph (b) of subdivision 1 of 50 section 440.30 of the criminal procedure law, as added by chapter 19 of 51 the laws of 2012, is amended to read as follows: 52 In conjunction with the filing or consideration of a motion to vacate 53 a judgment pursuant to section 440.10 of this article by a defendant 54 convicted after a trial, in cases where the court has ordered an eviden- 55 tiary hearing upon such motion, the court may order that the people 56 produce or make available for inspection property, [as defined in subdi- S. 7947 14 1 vision three of section 240.10 of this part,] in its possession, custo- 2 dy, or control that was secured in connection with the investigation or 3 prosecution of the defendant upon credible allegations by the defendant 4 and a finding by the court that such property, if obtained, would be 5 probative to the determination of defendant's actual innocence, and that 6 the request is reasonable. The court shall deny or limit such a request 7 upon a finding that such a request, if granted, would threaten the 8 integrity or chain of custody of property or the integrity of the proc- 9 esses or functions of a laboratory conducting DNA testing, pose a risk 10 of harm, intimidation, embarrassment, reprisal, or other substantially 11 negative consequences to any person, undermine the proper functions of 12 law enforcement including the confidentiality of informants, or on the 13 basis of any other factor identified by the court in the interests of 14 justice or public safety. The court shall further ensure that any prop- 15 erty produced pursuant to this paragraph is subject to a protective 16 order, where appropriate. The court shall deny any request made pursuant 17 to this paragraph where: 18 S 9. Subdivision 10 of section 450.10 of the penal law, as added by 19 chapter 795 of the laws of 1984, is amended to read as follows: 20 10. Where there has been a failure to comply with the provisions of 21 this section, and where the district attorney does not demonstrate to 22 the satisfaction of the court that such failure has not caused the 23 defendant prejudice, the court shall instruct the jury that it may 24 consider such failure in determining the weight to be given such 25 evidence and may also impose any other [sanction] REMEDIES set forth in 26 [subdivision one of] section [240.70] 245.90 of the criminal procedure 27 law; provided, however, that unless the defendant has convinced the 28 court that such failure has caused him undue prejudice, the court shall 29 not preclude the district attorney from introducing into evidence the 30 property, photographs, photocopies, or other reproductions of the prop- 31 erty or, where appropriate, testimony concerning its value and condi- 32 tion, where such evidence is otherwise properly authenticated and admis- 33 sible under the rules of evidence. Failure to comply with any one or 34 more of the provisions of this section shall not for that reason alone 35 be grounds for dismissal of the accusatory instrument. 36 S 10. Subdivision 5 of section 480.10 of the penal law, as added by 37 chapter 655 of the laws of 1990, is amended to read as follows: 38 5. In addition to information required to be disclosed pursuant to 39 article two hundred [forty] FORTY-FIVE of the criminal procedure law, 40 when forfeiture is sought pursuant to this article, and following the 41 defendant's arraignment on the special forfeiture information, the court 42 shall order discovery of any information not otherwise disclosed which 43 is material and reasonably necessary for preparation by the defendant 44 with respect to a forfeiture proceeding brought pursuant to this arti- 45 cle. Such material shall include those portions of the grand jury 46 minutes and such other information which pertain solely to the special 47 forfeiture information and shall not include information which pertains 48 to the criminal charges. Upon application of the prosecutor, the court 49 may issue a protective order pursuant to section [240.40] 245.10 of the 50 criminal procedure law with respect to any information required to be 51 disclosed pursuant to this subdivision. 52 S 11. Section 460.80 of the penal law, as added by chapter 516 of the 53 laws of 1986, is amended to read as follows: 54 S 460.80 Court ordered disclosure. 55 Notwithstanding the provisions of article two hundred [forty] 56 FORTY-FIVE of the criminal procedure law, when forfeiture is sought S. 7947 15 1 pursuant to section 460.30 of this [chapter] ARTICLE, the court may 2 order discovery of any property not otherwise disclosed which is materi- 3 al and reasonably necessary for preparation by the defendant with 4 respect to the forfeiture proceeding pursuant to such section. The court 5 may issue a protective order denying, limiting, conditioning, delaying 6 or regulating such discovery where a danger to the integrity of physical 7 evidence or a substantial risk of physical harm, intimidation, economic 8 reprisal, bribery or unjustified annoyance or embarrassment to any 9 person or an adverse effect upon the legitimate needs of law enforce- 10 ment, including the protection of the confidentiality of informants, or 11 any other factor or set of factors outweighs the usefulness of the 12 discovery. 13 S 12. This act shall take effect on the one hundred eightieth day 14 after it shall have become a law; provided that the amendments to subdi- 15 vision 9 of section 65.20 of the criminal procedure law made by section 16 three of this act shall not affect the repeal of such section and shall 17 be deemed repealed therewith.