S. 4089 2
APPROPRIATE. THE COURT MAY IMPOSE AS A CONDITION ON DISCOVERY TO A
DEFENDANT THAT THE MATERIAL OR INFORMATION TO BE DISCOVERED BE AVAILABLE
ONLY TO COUNSEL FOR THE DEFENDANT. THE COURT MAY PERMIT A PARTY SEEKING
OR OPPOSING A PROTECTIVE ORDER UNDER THIS SECTION, OR ANOTHER AFFECTED
PERSON, TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN CAMERA. ANY SUCH
PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY SHALL BE SEALED AND SHALL
CONSTITUTE A PART OF THE RECORD ON APPEAL. THIS SECTION DOES NOT ALTER
THE ALLOCATION OF THE BURDEN OF PROOF WITH REGARD TO MATTERS AT ISSUE,
INCLUDING PRIVILEGE.
2. MODIFICATION OF TIME PERIODS FOR DISCOVERY. UPON MOTION OF A PARTY
IN AN INDIVIDUAL CASE, THE COURT MAY ALTER THE TIME PERIODS FOR DISCOV-
ERY IMPOSED BY THIS ARTICLE UPON A SHOWING OF GOOD CAUSE.
3. SHOWING OF GOOD CAUSE. GOOD CAUSE UNDER THIS SECTION MAY INCLUDE
CONSTITUTIONAL LIMITATIONS; DANGER TO THE INTEGRITY OF PHYSICAL
EVIDENCE; A SUBSTANTIAL RISK OF PHYSICAL HARM, INTIMIDATION, ECONOMIC
REPRISAL, BRIBERY OR UNJUSTIFIED ANNOYANCE OR EMBARRASSMENT TO ANY
PERSON; A SUBSTANTIAL RISK OF AN ADVERSE EFFECT UPON THE LEGITIMATE
NEEDS OF LAW ENFORCEMENT, INCLUDING THE PROTECTION OF THE CONFIDENTIALI-
TY OF INFORMANTS; DANGER TO ANY PERSON STEMMING FROM FACTORS SUCH AS A
DEFENDANT'S GANG AFFILIATION, PRIOR HISTORY OF INTERFERING WITH
WITNESSES, OR THREATS OR INTIMIDATING ACTIONS DIRECTED AT POTENTIAL
WITNESSES; OR OTHER SIMILAR FACTORS THAT OUTWEIGH THE USEFULNESS OF THE
DISCOVERY.
S 245.20 PHASE ONE DISCOVERY OBLIGATION OF PROSECUTION.
1. TIMING OF PHASE ONE DISCOVERY FOR THE DEFENDANT. THE PROSECUTION
SHALL PERFORM ITS PHASE ONE DISCOVERY OBLIGATIONS UNDER THIS SECTION
WITHIN FIFTEEN CALENDAR DAYS AFTER THE DEFENDANT'S ARRAIGNMENT ON AN
INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR-
MATION, OR SIMPLIFIED INFORMATION. PORTIONS OF MATERIALS CLAIMED TO BE
NON-DISCOVERABLE MAY BE WITHHELD PENDING A DETERMINATION AND RULING OF
THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE DEFENDANT SHALL
BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A
PARTICULAR SUBDIVISION, AND THE DISCOVERABLE PORTIONS OF SUCH MATERIALS
SHALL BE DISCLOSED IF PRACTICABLE. WHEN THE DISCOVERABLE MATERIALS ARE
EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD IN THIS SUBDIVISION MAY BE
STAYED BY AN ADDITIONAL FORTY-FIVE CALENDAR DAYS WITHOUT NEED FOR A
MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.10 OF THIS ARTICLE.
2. PHASE ONE DISCOVERY FOR THE DEFENDANT. THE PROSECUTION SHALL
DISCLOSE TO THE DEFENDANT AS PART OF PHASE ONE DISCOVERY, AND PERMIT THE
DEFENDANT TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF THE FOLLOW-
ING ITEMS AND INFORMATION WHEN IT RELATES TO THE SUBJECT MATTER OF THE
CASE:
(A) ALL ELECTRONICALLY STORED POLICE REPORTS AND LAW ENFORCEMENT AGEN-
CY REPORTS THAT ARE IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSE-
CUTION, OR PERSONS UNDER THE PROSECUTION'S DIRECTION AND CONTROL.
(B) ALL WRITTEN OR RECORDED STATEMENTS, AND THE SUBSTANCE OF ALL ORAL
STATEMENTS, MADE BY THE DEFENDANT OR A CO-DEFENDANT TO A PUBLIC SERVANT
ENGAGED IN LAW ENFORCEMENT ACTIVITY OR TO A PERSON THEN ACTING UNDER HIS
OR HER DIRECTION OR IN COOPERATION WITH HIM OR HER, OTHER THAN STATE-
MENTS MADE IN THE COURSE OF THE CRIMINAL TRANSACTION.
(C) A LIST OF ALL TANGIBLE OBJECTS OBTAINED FROM, OR ALLEGEDLY
POSSESSED BY, THE DEFENDANT OR A CO-DEFENDANT. THE LIST SHALL INCLUDE A
DESIGNATION BY THE PROSECUTOR AS TO WHICH OBJECTS WERE PHYSICALLY OR
CONSTRUCTIVELY POSSESSED BY THE DEFENDANT AND WERE RECOVERED DURING A
SEARCH OR SEIZURE BY A PUBLIC SERVANT OR AN AGENT THEREOF, AND WHICH
TANGIBLE OBJECTS WERE RECOVERED BY A PUBLIC SERVANT OR AN AGENT THEREOF
S. 4089 3
AFTER ALLEGEDLY BEING ABANDONED BY THE DEFENDANT. IF THE PROSECUTION
INTENDS TO PROVE THE DEFENDANT'S POSSESSION OF ANY TANGIBLE OBJECTS BY
MEANS OF A STATUTORY PRESUMPTION OF POSSESSION, IT SHALL DESIGNATE THAT
INTENTION AS TO EACH SUCH OBJECT. IF REASONABLY PRACTICABLE, IT SHALL
ALSO DESIGNATE THE LOCATION FROM WHICH EACH TANGIBLE OBJECT WAS RECOV-
ERED.
(D) THE NAMES OF, AND ADDRESSES OR ADEQUATE ALTERNATIVE CONTACT INFOR-
MATION FOR, ALL PERSONS OTHER THAN LAW ENFORCEMENT PERSONNEL WHOM THE
PROSECUTOR KNOWS TO HAVE EVIDENCE OR INFORMATION RELEVANT TO ANY OFFENSE
CHARGED OR TO A POTENTIAL DEFENSE THERETO, INCLUDING A DESIGNATION BY
THE PROSECUTOR AS TO WHICH OF THOSE PERSONS MAY BE CALLED AS WITNESSES.
INFORMATION UNDER THIS PARAGRAPH RELATING TO ANY PERSON MAY BE WITHHELD,
AND REDACTED FROM DISCOVERY MATERIALS, AS PROVIDED IN SUBDIVISION THREE
OR FOUR OF THIS SECTION. INFORMATION UNDER THIS PARAGRAPH RELATING TO A
CONFIDENTIAL INFORMANT MAY BE WITHHELD, AND REDACTED FROM DISCOVERY
MATERIALS, WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS
ARTICLE; BUT THE DEFENDANT SHALL BE NOTIFIED IN WRITING THAT SUCH INFOR-
MATION HAS NOT BEEN DISCLOSED, UNLESS THE COURT RULES OTHERWISE FOR GOOD
CAUSE SHOWN.
(E) THE NAME, RANK, SHIELD NUMBER AND BUSINESS ADDRESS OF ALL LAW
ENFORCEMENT PERSONNEL WHOM THE PROSECUTOR KNOWS TO HAVE EVIDENCE OR
INFORMATION RELEVANT TO ANY OFFENSE CHARGED OR TO A POTENTIAL DEFENSE
THERETO. INFORMATION UNDER THIS PARAGRAPH RELATING TO UNDERCOVER PERSON-
NEL MAY BE WITHHELD, AND REDACTED FROM DISCOVERY MATERIALS, WITHOUT NEED
FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS ARTICLE; BUT THE DEFEND-
ANT SHALL BE NOTIFIED IN WRITING THAT SUCH INFORMATION HAS NOT BEEN
DISCLOSED, UNLESS THE COURT RULES OTHERWISE FOR GOOD CAUSE SHOWN.
(F) WHEN WRITTEN AND RECORDED STATEMENTS ARE IN THE POSSESSION OF THE
PROSECUTION (NOT SOLELY IN THE POSSESSION OF POLICE OR ANOTHER LAW
ENFORCEMENT AGENCY), ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED
IN ANY WRITING OR RECORDING, MADE BY PERSONS WHO HAVE EVIDENCE OR INFOR-
MATION RELEVANT TO ANY OFFENSE CHARGED OR TO A POTENTIAL DEFENSE THERE-
TO. STATEMENTS SOLELY IN THE POSSESSION OF POLICE OR ANOTHER LAW
ENFORCEMENT AGENCY AT THE TIME OF PHASE ONE DISCOVERY ARE DISCOVERABLE
UNDER PARAGRAPH (C) OF SUBDIVISION TWO OF SECTION 245.30 OF THIS ARTI-
CLE.
(G) WHEN IT IS KNOWN TO THE PROSECUTION (NOT SOLELY KNOWN TO POLICE OR
ANOTHER LAW ENFORCEMENT AGENCY), ALL EVIDENCE AND INFORMATION, WHETHER
OR NOT ADMISSIBLE OR RECORDED IN TANGIBLE FORM, THAT TENDS TO: (I)
EXCULPATE THE DEFENDANT; (II) MITIGATE THE DEFENDANT'S CULPABILITY AS TO
A CHARGED OFFENSE; (III) SUPPORT A POTENTIAL DEFENSE TO A CHARGED
OFFENSE; (IV) PROVIDE A BASIS FOR A MOTION TO SUPPRESS EVIDENCE ON
CONSTITUTIONAL GROUNDS; (V) SIGNIFICANTLY IMPUGN THE CREDIBILITY OF AN
IMPORTANT PROSECUTION WITNESS, INFORMANT OR EVIDENCE; OR (VI) MITIGATE
PUNISHMENT. FAVORABLE EVIDENCE AND INFORMATION KNOWN SOLELY TO POLICE OR
ANOTHER LAW ENFORCEMENT AGENCY AT THE TIME OF PHASE ONE DISCOVERY IS
DISCOVERABLE UNDER PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.30 OF
THIS ARTICLE.
(H) WHETHER A SEARCH WARRANT HAS BEEN EXECUTED AND ALL DOCUMENTS
RELATING THERETO, INCLUDING BUT NOT LIMITED TO THE WARRANT, THE WARRANT
APPLICATION, SUPPORTING AFFIDAVITS, A POLICE INVENTORY OF ALL PROPERTY
SEIZED UNDER THE WARRANT, AND A TRANSCRIPT OF ALL TESTIMONY OR OTHER
ORAL COMMUNICATIONS OFFERED IN SUPPORT OF THE WARRANT APPLICATION.
(I) THE APPROXIMATE DATE, TIME AND PLACE OF THE OFFENSE OR OFFENSES
CHARGED AND OF THE DEFENDANT'S ARREST.
S. 4089 4
3. PROSECUTOR'S OPTION TO RESTRICT DISCLOSURE OF CONTACT INFORMATION
BY ARRANGING WITNESS INTERVIEW. WITHIN THE PROSECUTOR'S DISCRETION, THE
ADDRESS, TELEPHONE NUMBER OR SIMILAR CONTACT INFORMATION FOR ANY PERSON
WHOSE NAME IS DISCLOSED PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF
THIS SECTION MAY BE WITHHELD, AND REDACTED FROM OTHER DISCOVERY MATERI-
ALS, WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS ARTI-
CLE, IF THE PROSECUTOR MAKES THE PERSON AVAILABLE TO COUNSEL FOR THE
DEFENDANT FOR AN IN PERSON INTERVIEW WITHIN THE TIME PERIOD SPECIFIED IN
SUBDIVISION ONE OF THIS SECTION. THIS SUBDIVISION DOES NOT CREATE ANY
RIGHT FOR THE DEFENDANT PERSONALLY TO ATTEND OR TO PARTICIPATE IN SUCH
AN INTERVIEW.
4. PROSECUTOR'S OPTION TO RESTRICT DISCLOSURE OF CONTACT INFORMATION
IN VIOLENT FELONY CASES. (A) WHERE THE DEFENDANT IS CHARGED WITH A
VIOLENT FELONY OFFENSE, WITHIN THE PROSECUTOR'S DISCRETION THE ADDRESS,
TELEPHONE NUMBER OR SIMILAR CONTACT INFORMATION FOR ANY PERSON WHOSE
NAME IS DISCLOSED PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF THIS
SECTION MAY BE WITHHELD, AND REDACTED FROM OTHER DISCOVERY MATERIALS,
WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS ARTICLE;
EXCEPT THAT A LIST OF THE ADDRESSES OR ADEQUATE ALTERNATIVE CONTACT
INFORMATION FOR PERSONS WHOSE INFORMATION HAS BEEN WITHHELD OR REDACTED
SHALL BE SEPARATELY PROVIDED TO COUNSEL FOR THE DEFENDANT IN A DOCUMENT
CLEARLY MARKED AS CONFIDENTIAL, UNLESS A PROTECTIVE ORDER PURSUANT TO
SECTION 245.10 OF THIS ARTICLE IS ISSUED BY THE COURT FOR GOOD CAUSE
SHOWN. IN ADDITION DISCOVERY OF THIS INFORMATION MAY BE CONDITIONED ON
THE DEFENDANT'S PERSONAL CONSENT, GIVEN IN OPEN COURT IN THE PRESENCE OF
THE COURT AT ARRAIGNMENT OR AT ANOTHER TIME, TO THE USE OF THE CONFIDEN-
TIALITY PROCEDURE SET FORTH IN THIS SUBDIVISION. THE COURT SHALL
SPECIFICALLY CAUTION THE DEFENDANT, IN THE COLLOQUY ABOUT USE OF THIS
PROCEDURE, CONCERNING THE OFFENSES OF TAMPERING WITH A WITNESS AND
INTIMIDATING A VICTIM OR WITNESS IN ARTICLE TWO HUNDRED FIFTEEN OF THE
PENAL LAW. NOTHING IN THIS SUBDIVISION PRECLUDES THE COURT FROM ISSUING
A DIFFERENT PROTECTIVE ORDER PURSUANT TO SECTION 245.10 OF THIS ARTICLE
FOR GOOD CAUSE SHOWN.
(B) WHEN THE CONFIDENTIALITY PROCEDURE SET FORTH IN THIS SUBDIVISION
IS USED, THE FOLLOWING REQUIREMENTS APPLY:
(I) EXCEPT AS PROVIDED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH, COUNSEL
FOR THE DEFENDANT MAY NOT DISCLOSE OR PERMIT TO BE DISCLOSED TO A
DEFENDANT OR TO ANYONE ELSE THE LIST DESCRIBED IN THIS SUBDIVISION OR
ITS CONTENTS, UNLESS SPECIFICALLY PERMITTED TO DO SO BY THE COURT FOR
GOOD CAUSE SHOWN OR UNLESS THE PROSECUTOR GIVES WRITTEN CONSENT. THE
COURT MAY ALLOW A PARTY SEEKING OR OPPOSING SUCH PERMISSION, OR ANOTHER
AFFECTED PERSON, TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN CAMERA. ANY
SUCH PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY SHALL BE SEALED AND SHALL
CONSTITUTE A PART OF THE RECORD ON APPEAL.
(II) NOTWITHSTANDING SUBPARAGRAPH (I) OF THIS PARAGRAPH, COUNSEL FOR
THE DEFENDANT MAY DISCLOSE OR PERMIT TO BE DISCLOSED THE LISTED CONTACT
INFORMATION FOR A POTENTIAL WITNESS TO PERSONS EMPLOYED BY THE ATTORNEY
OR TO PERSONS APPOINTED BY THE COURT TO ASSIST IN THE PREPARATION OF A
DEFENDANT'S CASE IF THAT DISCLOSURE IS REQUIRED FOR THAT PREPARATION.
PERSONS PROVIDED THIS INFORMATION BY THE ATTORNEY SHALL BE INFORMED BY
THE ATTORNEY THAT FURTHER DISSEMINATION OF THE INFORMATION, EXCEPT AS
PROVIDED BY THIS SUBDIVISION, IS PROHIBITED. WITHIN THE PROSECUTOR'S
DISCRETION, DISCOVERY OF THE LISTED CONTACT INFORMATION MAY BE CONDI-
TIONED ON SERVICE OF A WRITTEN STATEMENT BY COUNSEL FOR THE DEFENDANT OF
THE NAMES OF ANY EMPLOYEES WHO MAY BE PROVIDED INFORMATION PURSUANT TO
S. 4089 5
THIS SUBSECTION, AND DESCRIBING ANY KNOWN PRIOR CONNECTIONS BETWEEN
THOSE EMPLOYEES AND ALL DEFENDANTS IN THE CASE.
(III) IF THE DEFENDANT IS ACTING AS HIS OR HER OWN ATTORNEY, THE COURT
SHALL ENDEAVOR TO PROTECT THE LISTED CONTACT INFORMATION FOR A POTENTIAL
WITNESS BY PROVIDING FOR CONTACT ONLY THROUGH PERSONS APPOINTED BY THE
COURT TO ASSIST IN THE PREPARATION OF THE DEFENDANT'S CASE OR BY IMPOS-
ING OTHER REASONABLE RESTRICTIONS, ABSENT A SHOWING OF GOOD CAUSE.
S 245.30 PHASE TWO DISCOVERY OBLIGATION OF PROSECUTION.
1. TIMING OF PHASE TWO DISCOVERY FOR THE DEFENDANT. THE PROSECUTION
SHALL PERFORM ITS PHASE TWO DISCOVERY OBLIGATIONS UNDER THIS SECTION
WITHIN NINETY CALENDAR DAYS AFTER THE DEFENDANT'S ARRAIGNMENT ON AN
INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR-
MATION, OR SIMPLIFIED INFORMATION. PORTIONS OF MATERIALS CLAIMED TO BE
NON-DISCOVERABLE MAY BE WITHHELD PENDING A DETERMINATION AND RULING OF
THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE DEFENDANT SHALL
BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A
PARTICULAR SUBDIVISION, AND THE DISCOVERABLE PORTIONS OF SUCH MATERIALS
SHALL BE DISCLOSED IF PRACTICABLE. WHEN THE DISCOVERABLE MATERIALS ARE
EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD IN THIS SUBDIVISION MAY BE
STAYED BY AN ADDITIONAL THIRTY CALENDAR DAYS WITHOUT NEED FOR A MOTION
PURSUANT TO SUBDIVISION TWO OF SECTION 245.10 OF THIS ARTICLE.
2. PHASE TWO DISCOVERY FOR THE DEFENDANT. THE PROSECUTION SHALL
DISCLOSE TO THE DEFENDANT AS PART OF PHASE TWO DISCOVERY, AND PERMIT THE
DEFENDANT TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF THE FOLLOW-
ING ITEMS AND INFORMATION WHEN IT RELATES TO THE SUBJECT MATTER OF THE
CASE AND IS IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR
PERSONS UNDER THE PROSECUTION'S DIRECTION OR CONTROL:
(A) ALL TRANSCRIPTS OF THE TESTIMONY OF A PERSON WHO HAS TESTIFIED
BEFORE A GRAND JURY, INCLUDING BUT NOT LIMITED TO THE DEFENDANT OR A
CO-DEFENDANT. IF IN THE EXERCISE OF REASONABLE DILIGENCE, AND DUE TO THE
LIMITED AVAILABILITY OF TRANSCRIPTION RESOURCES, A TRANSCRIPT IS
UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVI-
SION ONE OF THIS SECTION, THAT PERIOD MAY BE STAYED BY AN ADDITIONAL
FORTY-FIVE CALENDAR DAYS WITHOUT NEED FOR A MOTION PURSUANT TO SECTION
245.10 OF THIS ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON
AS PRACTICABLE AND NOT LATER THAN THIRTY CALENDAR DAYS BEFORE A SCHED-
ULED TRIAL DATE, UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10
OF THIS ARTICLE.
(B) ALL POLICE REPORTS AND LAW ENFORCEMENT AGENCY REPORTS, INCLUDING
THOSE NOT ELECTRONICALLY STORED. REPORTS PREVIOUSLY DISCLOSED PURSUANT
TO PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE
NEED NOT BE DISCLOSED AGAIN.
(C) ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING
OR RECORDING, MADE BY PERSONS WHO HAVE EVIDENCE OR INFORMATION RELEVANT
TO ANY OFFENSE CHARGED OR TO A POTENTIAL DEFENSE THERETO, INCLUDING
THOSE THAT WERE SOLELY IN THE POSSESSION OF POLICE OR ANOTHER LAW
ENFORCEMENT AGENCY AT THE TIME OF PHASE ONE DISCOVERY. STATEMENTS PREVI-
OUSLY DISCLOSED PURSUANT TO PARAGRAPH (F) OF SUBDIVISION TWO OF SECTION
245.20 OF THIS ARTICLE NEED NOT BE DISCLOSED AGAIN.
(D) ALL EVIDENCE AND INFORMATION, INCLUDING THAT WHICH WAS SOLELY
KNOWN TO POLICE OR OTHER LAW ENFORCEMENT AGENCIES AT THE TIME OF PHASE
ONE DISCOVERY, AND WHETHER OR NOT IT IS ADMISSIBLE OR RECORDED IN TANGI-
BLE FORM, THAT TENDS TO (I) EXCULPATE THE DEFENDANT; (II) MITIGATE THE
DEFENDANT'S CULPABILITY AS TO A CHARGED OFFENSE; (III) SUPPORT A POTEN-
TIAL DEFENSE TO A CHARGED OFFENSE; (IV) PROVIDE A BASIS FOR A MOTION TO
SUPPRESS EVIDENCE ON CONSTITUTIONAL GROUNDS; (V) IMPUGN THE CREDIBILITY
S. 4089 6
OF A PROSECUTION WITNESS, INFORMANT OR EVIDENCE; OR (VI) MITIGATE
PUNISHMENT. EVIDENCE OR INFORMATION PREVIOUSLY DISCLOSED PURSUANT TO
PARAGRAPH (G) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE NEED
NOT BE DISCLOSED AGAIN.
(E) A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE TO PERSONS
WHO MAY BE CALLED AS WITNESSES, AS WELL AS REQUESTS FOR CONSIDERATION BY
PERSONS WHO MAY BE CALLED AS WITNESSES, AND COPIES OF ALL DOCUMENTS
RELEVANT TO A PROMISE, REWARD OR INDUCEMENT.
(F) ALL TANGIBLE PROPERTY THAT THE PROSECUTION INTENDS TO INTRODUCE IN
ITS CASE-IN-CHIEF AT TRIAL OR A PRE-TRIAL HEARING. DISCOVERY OF ITEMS
UNDER THIS PARAGRAPH MAY BE CONDITIONED ON SERVICE OF A DEMAND TO
PRODUCE MADE BY THE DEFENDANT, IF IN PHASE ONE DISCOVERY THE PROSECUTION
TIMELY SERVED NOTICE ON THE DEFENDANT THAT A DEMAND TO PRODUCE ITEMS
UNDER THIS PARAGRAPH WOULD HAVE TO BE SERVED ON THE PROSECUTION WITHIN
THIRTY DAYS OF THAT NOTICE.
(G) ALL TAPES OR OTHER ELECTRONIC RECORDINGS WHICH THE PROSECUTION
INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING.
(H) ALL PHOTOGRAPHS AND DRAWINGS MADE OR COMPLETED BY A PUBLIC SERVANT
ENGAGED IN LAW ENFORCEMENT ACTIVITY, OR WHICH WERE MADE BY A PERSON WHOM
THE PROSECUTOR INTENDS TO CALL AS A WITNESS AT TRIAL OR A PRE-TRIAL
HEARING, OR WHICH THE PROSECUTION INTENDS TO INTRODUCE AT TRIAL OR A
PRE-TRIAL HEARING.
(I) ALL PHOTOGRAPHS, PHOTOCOPIES AND REPRODUCTIONS MADE BY OR AT THE
DIRECTION OF LAW ENFORCEMENT PERSONNEL OF ANY PROPERTY PRIOR TO ITS
RELEASE PURSUANT TO SECTION 450.10 OF THE PENAL LAW.
(J) ALL REPORTS AND DOCUMENTS CONCERNING PHYSICAL OR MENTAL EXAMINA-
TIONS, OR SCIENTIFIC TESTS OR EXPERIMENTS OR COMPARISONS, RELATING TO
THE CRIMINAL ACTION OR PROCEEDING WHICH WERE MADE BY OR AT THE REQUEST
OR DIRECTION OF A PUBLIC SERVANT ENGAGED IN LAW ENFORCEMENT ACTIVITY, OR
WHICH WERE MADE BY A PERSON WHOM THE PROSECUTOR INTENDS TO CALL AS A
WITNESS AT TRIAL OR A PRE-TRIAL HEARING, OR WHICH THE PROSECUTION
INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING.
(K) EXPERT OPINION EVIDENCE, INCLUDING THE NAME, BUSINESS ADDRESS,
CURRENT CURRICULUM VITAE, AND A LIST OF PUBLICATIONS OF EACH EXPERT
WITNESS WHOM THE PROSECUTOR INTENDS TO CALL AS A WITNESS AT TRIAL OR A
PRE-TRIAL HEARING, AND ALL REPORTS PREPARED BY THE EXPERT THAT PERTAIN
TO THE CASE, OR IF NO REPORT IS PREPARED, A WRITTEN STATEMENT OF THE
FACTS AND OPINIONS TO WHICH THE EXPERT IS EXPECTED TO TESTIFY AND A
SUMMARY OF THE GROUNDS FOR EACH OPINION. THIS PARAGRAPH DOES NOT ALTER
OR IN ANY WAY AFFECT THE PROCEDURES, OBLIGATIONS OR RIGHTS SET FORTH IN
SECTION 250.10 OF THIS TITLE. IF IN THE EXERCISE OF REASONABLE DILIGENCE
THIS INFORMATION IS UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD
SPECIFIED IN SUBDIVISION ONE OF THIS SECTION, THAT PERIOD SHALL BE
STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS
ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE
AND NOT LATER THAN SIXTY CALENDAR DAYS BEFORE A SCHEDULED TRIAL DATE,
UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10 OF THIS ARTICLE.
(L) (I) IF COUNSEL FOR THE DEFENDANT HAS ACCESS TO A DATABASE BY WHICH
TO OBTAIN THE COMPLETE CRIMINAL HISTORY OF ALL DEFENDANTS AND ALL
PERSONS DESIGNATED AS POTENTIAL PROSECUTION WITNESSES PURSUANT TO PARA-
GRAPH (D) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE, THE
PROSECUTOR SHALL EITHER DISCLOSE A LIST OF THE BIRTH DATES AND KNOWN
ALIASES OF THOSE PERSONS, OR PROVIDE THE DEFENDANT WITH THE CRIMINAL
HISTORY INFORMATION. (II) IF COUNSEL FOR THE DEFENDANT LACKS ACCESS TO A
DATABASE BY WHICH TO OBTAIN THE COMPLETE CRIMINAL HISTORY OF ALL DEFEND-
ANTS AND ALL PERSONS DESIGNATED AS POTENTIAL PROSECUTION WITNESSES
S. 4089 7
PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS
ARTICLE, THE PROSECUTOR SHALL EITHER PROVIDE COUNSEL FOR THE DEFENDANT
WITH ACCESS TO SUCH A DATABASE AND DISCLOSE A LIST OF THE BIRTH DATES
AND KNOWN ALIASES OF THOSE PERSONS, OR PROVIDE THE DEFENDANT WITH THE
CRIMINAL HISTORY INFORMATION.
(M) WHEN IT IS KNOWN TO THE PROSECUTION, THE EXISTENCE OF ANY PENDING
CRIMINAL ACTION AGAINST ALL PERSONS DESIGNATED AS POTENTIAL PROSECUTION
WITNESSES PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.20
OF THIS ARTICLE.
(N) IN ANY PROSECUTION ALLEGING A VIOLATION OF THE VEHICLE AND TRAFFIC
LAW, WHERE THE DEFENDANT IS CHARGED BY INDICTMENT, SUPERIOR COURT INFOR-
MATION, PROSECUTOR'S INFORMATION, INFORMATION, OR SIMPLIFIED INFORMA-
TION, THE MOST RECENT RECORD OF INSPECTION, CALIBRATION AND REPAIR OF
MACHINES AND INSTRUMENTS UTILIZED TO PERFORM ANY SCIENTIFIC TESTS AND
EXPERIMENTS AND THE CERTIFICATION CERTIFICATE, IF ANY, HELD BY THE OPER-
ATOR OF THE MACHINE OR INSTRUMENT, AND ALL OTHER DISCLOSURES REQUIRED
UNDER THIS ARTICLE.
(O) IN ANY PROSECUTION ALLEGING A VIOLATION OF SECTION 156.05 OR
156.10 OF THE PENAL LAW, THE TIME, PLACE AND MANNER SUCH VIOLATION
OCCURRED.
S 245.40 RECIPROCAL DISCOVERY OBLIGATION OF THE DEFENDANT.
1. TIMING OF RECIPROCAL DISCOVERY FOR THE PROSECUTION. THE DEFENDANT
SHALL PERFORM HIS OR HER RECIPROCAL DISCOVERY OBLIGATIONS UNDER THIS
SECTION WITHIN THIRTY CALENDAR DAYS AFTER BEING SERVED WITH THE PROSE-
CUTION'S CERTIFICATE OF COMPLIANCE PURSUANT TO SUBDIVISION ONE OF
SECTION 245.65 OF THIS ARTICLE. PORTIONS OF MATERIALS CLAIMED TO BE
NON-DISCOVERABLE MAY BE WITHHELD PENDING A DETERMINATION AND RULING OF
THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE PROSECUTION
SHALL BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED
UNDER THIS SECTION, AND THE DISCOVERABLE PORTIONS OF SUCH MATERIALS
SHALL BE DISCLOSED IF PRACTICABLE.
2. RECIPROCAL DISCOVERY FOR THE PROSECUTION. THE DEFENDANT SHALL,
SUBJECT TO CONSTITUTIONAL LIMITATIONS, DISCLOSE TO THE PROSECUTION, AND
PERMIT THE PROSECUTION TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF
THE FOLLOWING ITEMS AND INFORMATION WHEN IT IS WITHIN THE DEFENDANT'S OR
COUNSEL FOR THE DEFENDANT'S POSSESSION OR CONTROL:
(A) THE NAMES, KNOWN ALIASES, ADDRESSES AND BIRTH DATES OF ALL PERSONS
OTHER THAN THE DEFENDANT WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES
AT TRIAL OR A PRE-TRIAL HEARING. DISCLOSURE OF THIS INFORMATION FOR A
PERSON WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS FOR THE SOLE
PURPOSE OF IMPEACHING A PROSECUTION WITNESS IS NOT REQUIRED UNTIL AFTER
THE PROSECUTION WITNESS HAS TESTIFIED.
(B) ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING
OR RECORDING, MADE BY ALL PERSONS OTHER THAN THE DEFENDANT WHOM THE
DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL OR A PRE-TRIAL HEARING;
EXCEPT THAT DISCLOSURE OF SUCH STATEMENTS MADE BY A PERSON WHOM THE
DEFENDANT INTENDS TO CALL AS A WITNESS FOR THE SOLE PURPOSE OF IMPEACH-
ING A PROSECUTION WITNESS IS NOT REQUIRED UNTIL AFTER THE PROSECUTION
WITNESS HAS TESTIFIED.
(C) A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE TO PERSONS
WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL OR A PRE-TRIAL
HEARING, AS WELL AS REQUESTS FOR CONSIDERATION BY SUCH PERSONS, AND
COPIES OF ALL DOCUMENTS RELEVANT TO A PROMISE, REWARD OR INDUCEMENT.
(D) ALL TANGIBLE PROPERTY THAT THE DEFENDANT INTENDS TO INTRODUCE IN
THE DEFENDANT'S CASE-IN-CHIEF AT TRIAL OR A PRE-TRIAL HEARING.
S. 4089 8
(E) ALL TAPES OR OTHER ELECTRONIC RECORDINGS WHICH THE DEFENDANT
INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING.
(F) ALL PHOTOGRAPHS AND DRAWINGS WHICH THE DEFENDANT INTENDS TO INTRO-
DUCE AT TRIAL OR A PRE-TRIAL HEARING.
(G) ALL REPORTS AND DOCUMENTS CONCERNING PHYSICAL OR MENTAL EXAMINA-
TIONS, OR SCIENTIFIC TESTS OR EXPERIMENTS OR COMPARISONS, WHICH THE
DEFENDANT INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING, OR WHICH
WERE MADE BY A PERSON WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS AT
TRIAL OR A PRE-TRIAL HEARING.
(H) INTENDED EXPERT OPINION EVIDENCE, INCLUDING THE NAME, BUSINESS
ADDRESS, CURRENT CURRICULUM VITAE, AND A LIST OF PUBLICATIONS OF EACH
EXPERT WITNESS WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS AT TRIAL
OR A PRE-TRIAL HEARING, AND ALL REPORTS PREPARED BY THE EXPERT THAT
PERTAIN TO THE CASE, OR IF NO REPORT IS PREPARED, A WRITTEN STATEMENT OF
THE FACTS AND OPINIONS TO WHICH THE EXPERT IS EXPECTED TO TESTIFY AND A
SUMMARY OF THE GROUNDS FOR EACH OPINION. THIS PARAGRAPH DOES NOT ALTER
OR IN ANY WAY AFFECT THE PROCEDURES, OBLIGATIONS OR RIGHTS SET FORTH IN
SECTION 250.10 OF THIS TITLE. IF IN THE EXERCISE OF REASONABLE DILIGENCE
THIS INFORMATION IS UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD
SPECIFIED IN SUBDIVISION ONE OF THIS SECTION, THAT PERIOD SHALL BE
STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS
ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE
AND NOT LATER THAN THIRTY CALENDAR DAYS BEFORE A SCHEDULED TRIAL DATE,
UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10 OF THIS ARTICLE.
S 245.45 DISCLOSURE OF PRIOR MISCONDUCT OR CRIMINAL ACTS.
1. USE AT TRIAL. NOT LATER THAN FIFTEEN CALENDAR DAYS BEFORE A SCHED-
ULED TRIAL DATE, THE PROSECUTION SHALL DISCLOSE TO THE DEFENDANT A LIST
OF ALL MISCONDUCT AND CRIMINAL ACTS OF THE DEFENDANT NOT CHARGED IN THE
INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR-
MATION, OR SIMPLIFIED INFORMATION, WHICH THE PROSECUTION INTENDS TO USE
AT TRIAL FOR PURPOSES OF:
(A) IMPEACHING THE CREDIBILITY OF THE DEFENDANT; OR
(B) AS SUBSTANTIVE PROOF OF ANY MATERIAL ISSUE IN THE CASE.
2. NOTIFICATION FOR WHAT PURPOSE. IN ADDITION, THE PROSECUTOR SHALL
DESIGNATE WHETHER HE OR SHE INTENDS TO USE EACH LISTED ACT FOR IMPEACH-
MENT AND/OR AS SUBSTANTIVE PROOF.
S 245.50 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
1. AVAILABILITY. AFTER THE FILING OF AN ACCUSATORY INSTRUMENT, AND
SUBJECT TO CONSTITUTIONAL LIMITATIONS, THE COURT MAY, UPON MOTION OF THE
PROSECUTION SHOWING PROBABLE CAUSE TO BELIEVE THE DEFENDANT HAS COMMIT-
TED THE CRIME, A CLEAR INDICATION THAT RELEVANT MATERIAL EVIDENCE WILL
BE FOUND, AND THAT THE METHOD USED TO SECURE IT IS SAFE AND RELIABLE,
REQUIRE A DEFENDANT TO PROVIDE NON-TESTIMONIAL EVIDENCE, INCLUDING TO:
(A) APPEAR IN A LINEUP;
(B) SPEAK FOR IDENTIFICATION BY A WITNESS OR POTENTIAL WITNESS;
(C) BE FINGERPRINTED;
(D) POSE FOR PHOTOGRAPHS NOT INVOLVING REENACTMENT OF AN EVENT;
(E) PERMIT THE TAKING OF SAMPLES OF THE DEFENDANT'S BLOOD, HAIR, AND
OTHER MATERIALS OF THE DEFENDANT'S BODY THAT INVOLVES NO UNREASONABLE
INTRUSION THEREOF;
(F) PROVIDE SPECIMENS OF THE DEFENDANT'S HANDWRITING; AND
(G) SUBMIT TO A REASONABLE PHYSICAL OR MEDICAL INSPECTION OF THE
DEFENDANT'S BODY.
2. LIMITATIONS. THIS SECTION SHALL NOT BE CONSTRUED TO ALTER OR IN ANY
WAY AFFECT THE ISSUANCE OF A SIMILAR COURT ORDER, AS MAY BE AUTHORIZED
BY LAW, BEFORE THE FILING OF AN ACCUSATORY INSTRUMENT, CONSISTENT WITH
S. 4089 9
SUCH RIGHTS AS THE DEFENDANT MAY DERIVE FROM THE STATE CONSTITUTION OR
THE UNITED STATES CONSTITUTION. THIS SECTION SHALL NOT BE CONSTRUED TO
ALTER OR IN ANY WAY AFFECT THE ADMINISTRATION OF A CHEMICAL TEST WHERE
OTHERWISE AUTHORIZED. AN ORDER PURSUANT TO THIS SECTION MAY BE DENIED,
LIMITED OR CONDITIONED AS PROVIDED IN SECTION 245.10 OF THIS ARTICLE.
S 245.55 COURT ORDERS FOR PRESERVATION, ACCESS OR DISCOVERY.
1. ORDER TO PRESERVE EVIDENCE. AT ANY TIME, A PARTY MAY MOVE FOR A
COURT ORDER TO ANY INDIVIDUAL, AGENCY OR OTHER ENTITY IN POSSESSION,
CUSTODY OR CONTROL OF ITEMS WHICH RELATE TO THE SUBJECT MATTER OF THE
CASE OR ARE OTHERWISE RELEVANT, REQUIRING THAT SUCH ITEMS BE PRESERVED
FOR A SPECIFIED PERIOD OF TIME. THE COURT SHALL HEAR AND RULE UPON SUCH
MOTIONS EXPEDITIOUSLY. THE COURT MAY MODIFY OR VACATE SUCH AN ORDER UPON
A SHOWING THAT PRESERVATION OF PARTICULAR EVIDENCE WILL CREATE SIGNIF-
ICANT HARDSHIP, ON CONDITION THAT THE PROBATIVE VALUE OF THAT EVIDENCE
IS PRESERVED BY A SPECIFIED ALTERNATIVE MEANS.
2. ORDER TO GRANT ACCESS TO PREMISES. AT ANY TIME, THE DEFENDANT MAY
MOVE FOR A COURT ORDER TO ANY INDIVIDUAL, AGENCY OR OTHER ENTITY IN
POSSESSION, CUSTODY OR CONTROL OF A CRIME SCENE OR OTHER PREMISES THAT
RELATES TO THE SUBJECT MATTER OF THE CASE OR IS OTHERWISE RELEVANT,
REQUIRING THAT COUNSEL FOR THE DEFENDANT BE GRANTED PROMPT AND REASON-
ABLE ACCESS TO INSPECT, PHOTOGRAPH OR MEASURE THAT CRIME SCENE OR THOSE
PREMISES, AND THAT THE CONDITION OF THE CRIME SCENE OR PREMISES REMAIN
UNCHANGED IN THE INTERIM. THE COURT SHALL HEAR AND RULE UPON SUCH
MOTIONS EXPEDITIOUSLY. THE COURT MAY MODIFY OR VACATE SUCH AN ORDER UPON
A SHOWING THAT GRANTING ACCESS TO A PARTICULAR CRIME SCENE OR PREMISES
WILL CREATE SIGNIFICANT HARDSHIP, ON CONDITION THAT THE PROBATIVE VALUE
OF THAT LOCATION IS PRESERVED BY A SPECIFIED ALTERNATIVE MEANS.
3. DISCRETIONARY DISCOVERY BY ORDER OF THE COURT. THE COURT IN ITS
DISCRETION MAY, UPON A SHOWING BY THE DEFENDANT THAT THE REQUEST IS
REASONABLE AND THAT THE DEFENDANT IS UNABLE WITHOUT UNDUE HARDSHIP TO
OBTAIN THE SUBSTANTIAL EQUIVALENT BY OTHER MEANS, ORDER THE PROSECUTION,
OR ANY INDIVIDUAL, AGENCY OR OTHER ENTITY SUBJECT TO THE JURISDICTION OF
THE COURT, TO MAKE AVAILABLE FOR DISCLOSURE TO THE DEFENDANT ANY MATERI-
AL OR INFORMATION WHICH POTENTIALLY RELATES TO THE SUBJECT MATTER OF THE
CASE OR IS OTHERWISE RELEVANT. A MOTION UNDER THIS SUBDIVISION MUST BE
ON NOTICE TO ANY PERSON OR ENTITY AFFECTED BY THE ORDER. THE COURT MAY,
UPON REQUEST OF ANY PERSON OR ENTITY AFFECTED BY THE ORDER, VACATE OR
MODIFY THE ORDER IF COMPLIANCE WOULD BE UNREASONABLE OR OPPRESSIVE. THE
COURT MAY PERMIT A PARTY SEEKING OR OPPOSING A DISCRETIONARY ORDER OF
DISCOVERY UNDER THIS SUBDIVISION, OR ANOTHER AFFECTED PERSON OR ENTITY,
TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN CAMERA. ANY SUCH PAPERS AND A
TRANSCRIPT OF SUCH TESTIMONY SHALL BE SEALED AND SHALL CONSTITUTE A PART
OF THE RECORD ON APPEAL.
S 245.60 MATERIAL HELD BY OTHER GOVERNMENTAL PERSONNEL.
UPON THE DEFENDANT'S REQUEST AND DESIGNATION OF MATERIAL OR INFORMA-
TION WHICH WOULD BE DISCOVERABLE UNDER SECTION 245.20 OR 245.30 OF THIS
ARTICLE IF IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR
PERSONS UNDER THE PROSECUTION'S DIRECTION OR CONTROL, BUT WHICH IS, IN
FACT, IN THE POSSESSION, CUSTODY OR CONTROL OF OTHER GOVERNMENTAL
PERSONNEL, THE PROSECUTOR SHALL MAKE A DILIGENT, GOOD FAITH EFFORT TO
ASCERTAIN THE EXISTENCE OF SUCH MATERIAL OR INFORMATION AND TO CAUSE IT
TO BE MADE AVAILABLE FOR DISCOVERY. IF THE PROSECUTOR'S EFFORT IS UNSUC-
CESSFUL AND SUCH MATERIAL OR INFORMATION OR OTHER GOVERNMENTAL PERSONNEL
ARE SUBJECT TO THE JURISDICTION OF THE COURT, THE COURT, UPON MOTION OF
THE DEFENDANT, SHALL ISSUE SUITABLE SUBPOENAS OR ORDERS TO CAUSE SUCH
MATERIAL OR INFORMATION TO BE MADE AVAILABLE FOR DISCOVERY.
S. 4089 10
S 245.65 CERTIFICATES OF COMPLIANCE.
1. BY THE PROSECUTION. WHEN THE PROSECUTION HAS PROVIDED THE DISCOVERY
REQUIRED BY SECTIONS 245.20 AND 245.30 OF THIS ARTICLE, EXCEPT FOR ANY
ITEMS OR INFORMATION THAT ARE THE SUBJECT OF AN ORDER PURSUANT TO
SECTION 245.10 OF THIS ARTICLE, IT SHALL SERVE UPON THE DEFENDANT AND
FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE. THE CERTIFICATE SHALL
STATE THAT, AFTER EXERCISING DUE DILIGENCE AND MAKING REASONABLE
INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL AND INFORMATION SUBJECT
TO DISCOVERY, THE PROSECUTOR HAS DISCLOSED AND MADE AVAILABLE ALL KNOWN
MATERIAL AND INFORMATION SUBJECT TO DISCOVERY. IT SHALL ALSO IDENTIFY
THE ITEMS PROVIDED. IF ADDITIONAL DISCOVERY IS SUBSEQUENTLY PROVIDED
PRIOR TO TRIAL PURSUANT TO SECTION 245.80 OF THIS ARTICLE, A SUPPLE-
MENTAL CERTIFICATE SHALL BE SERVED UPON THE DEFENDANT AND FILED WITH THE
COURT IDENTIFYING THE ADDITIONAL MATERIAL AND INFORMATION PROVIDED. NO
ADVERSE CONSEQUENCE TO THE PROSECUTION OR THE PROSECUTOR SHALL RESULT
FROM THE FILING OF A CERTIFICATE OF COMPLIANCE IN GOOD FAITH; BUT THE
COURT MAY GRANT A REMEDY FOR A DISCOVERY VIOLATION AS PROVIDED IN
SECTION 245.90 OF THIS ARTICLE.
2. BY THE DEFENDANT. WHEN THE DEFENDANT HAS PROVIDED ALL DISCOVERY
REQUIRED BY SECTION 245.40 OF THIS ARTICLE, EXCEPT FOR ANY ITEMS OR
INFORMATION THAT ARE THE SUBJECT OF AN ORDER PURSUANT TO SECTION 245.10
OF THIS ARTICLE, COUNSEL FOR THE DEFENDANT SHALL SERVE UPON THE PROSE-
CUTION AND FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE. THE CERTIF-
ICATE SHALL STATE THAT, AFTER EXERCISING DUE DILIGENCE AND MAKING
REASONABLE INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL AND INFORMA-
TION SUBJECT TO DISCOVERY, COUNSEL FOR THE DEFENDANT HAS DISCLOSED AND
MADE AVAILABLE ALL KNOWN MATERIAL AND INFORMATION SUBJECT TO DISCOVERY.
IT SHALL ALSO IDENTIFY THE ITEMS PROVIDED. IF ADDITIONAL DISCOVERY IS
SUBSEQUENTLY PROVIDED PRIOR TO TRIAL PURSUANT TO SECTION 245.80 OF THIS
ARTICLE, A SUPPLEMENTAL CERTIFICATE SHALL BE SERVED UPON THE PROSECUTION
AND FILED WITH THE COURT IDENTIFYING THE ADDITIONAL MATERIAL AND INFOR-
MATION PROVIDED. NO ADVERSE CONSEQUENCE TO THE DEFENDANT OR COUNSEL FOR
THE DEFENDANT SHALL RESULT FROM THE FILING OF A CERTIFICATE OF COMPLI-
ANCE IN GOOD FAITH; BUT THE COURT MAY GRANT A REMEDY FOR A DISCOVERY
VIOLATION AS PROVIDED IN SECTION 245.90 OF THIS ARTICLE.
S 245.70 COURT ORDERED PROCEDURES TO FACILITATE COMPLIANCE.
TO FACILITATE COMPLIANCE WITH THIS ARTICLE, AND TO REDUCE OR STREAM-
LINE LITIGATION OF ANY DISPUTES ABOUT DISCOVERY, THE COURT IN ITS
DISCRETION MAY ISSUE AN ORDER:
1. REQUIRING THAT THE PROSECUTOR AND COUNSEL FOR THE DEFENDANT DILI-
GENTLY CONFER TO ATTEMPT TO REACH AN ACCOMMODATION AS TO ANY DISPUTE
CONCERNING DISCOVERY PRIOR TO SEEKING A RULING FROM THE COURT;
2. REQUIRING A DISCOVERY COMPLIANCE CONFERENCE AT A SPECIFIED TIME
PRIOR TO TRIAL BETWEEN THE PROSECUTOR, COUNSEL FOR ALL DEFENDANTS, AND
THE COURT OR ITS STAFF;
3. REQUIRING THE PROSECUTION TO FILE AN ADDITIONAL CERTIFICATE OF
COMPLIANCE THAT STATES THAT THE PROSECUTOR AND/OR AN APPROPRIATE NAMED
AGENT HAS MADE REASONABLE INQUIRIES OF ALL POLICE OFFICERS AND OTHER
PERSONS WHO HAVE PARTICIPATED IN INVESTIGATING OR EVALUATING THE CASE
ABOUT THE EXISTENCE OF ANY FAVORABLE EVIDENCE OR INFORMATION WITHIN
PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.30 OF THIS ARTICLE,
INCLUDING SUCH EVIDENCE OR INFORMATION THAT WAS NOT REDUCED TO WRITING
OR OTHERWISE MEMORIALIZED OR PRESERVED AS EVIDENCE, AND HAS DISCLOSED
ANY SUCH INFORMATION TO THE DEFENDANT; AND/OR
4. REQUIRING OTHER MEASURES OR PROCEEDINGS DESIGNED TO CARRY INTO
EFFECT THE GOALS OF THIS ARTICLE.
S. 4089 11
S 245.75 FLOW OF INFORMATION WITH POLICE.
1. PROVISION OF LAW ENFORCEMENT AGENCY FILES. UPON REQUEST BY THE
PROSECUTION, A NEW YORK STATE LAW ENFORCEMENT AGENCY SHALL MAKE AVAIL-
ABLE TO THE PROSECUTION A COMPLETE COPY OF ITS COMPLETE FILES RELATED TO
THE INVESTIGATION OF THE CASE OR THE PROSECUTION OF THE DEFENDANT FOR
COMPLIANCE WITH THIS ARTICLE, UNLESS EXCEPTIONAL CIRCUMSTANCES AS FOUND
BY SENIOR LAW ENFORCEMENT PERSONNEL JUSTIFY WITHHOLDING OF ANY MATERI-
ALS; BUT THE PROSECUTION SHALL BE NOTIFIED IN WRITING THAT INFORMATION
HAS NOT BEEN PROVIDED, UNLESS EXCEPTIONAL CIRCUMSTANCES REQUIRE OTHER-
WISE.
2. SUFFICIENT COMMUNICATION FOR COMPLIANCE. THE PROSECUTOR SHALL
ENDEAVOR TO ENSURE THAT A FLOW OF INFORMATION IS MAINTAINED BETWEEN THE
POLICE AND OTHER INVESTIGATIVE PERSONNEL AND HIS OR HER OFFICE SUFFI-
CIENT TO PLACE WITHIN HIS OR HER POSSESSION OR CONTROL ALL MATERIAL AND
INFORMATION PERTINENT TO THE DEFENDANT AND THE OFFENSE OR OFFENSES
CHARGED, INCLUDING ANY EVIDENCE OR INFORMATION WHICH TENDS TO EXCULPATE
THE DEFENDANT OR TO MITIGATE THE DEFENDANT'S CULPABILITY AS TO A CHARGED
OFFENSE, OR WHICH TENDS TO SUPPORT A POTENTIAL DEFENSE THERETO, OR WHICH
TENDS TO PROVIDE A BASIS FOR A MOTION TO SUPPRESS EVIDENCE ON CONSTITU-
TIONAL GROUNDS, OR WHICH TENDS TO IMPUGN THE CREDIBILITY OF A PROSE-
CUTION WITNESS, INFORMANT OR EVIDENCE, OR WHICH WOULD TEND TO MITIGATE
THE PUNISHMENT OF THE DEFENDANT.
S 245.80 CONTINUING DUTY TO DISCLOSE.
IF EITHER THE PROSECUTION OR THE DEFENDANT SUBSEQUENTLY LEARNS OF
ADDITIONAL MATERIAL OR INFORMATION WHICH IT WOULD HAVE BEEN UNDER A DUTY
TO DISCLOSE PURSUANT TO ANY PROVISIONS OF THIS ARTICLE AT THE TIME OF A
PREVIOUS DISCOVERY OBLIGATION OR DISCOVERY ORDER, IT SHALL EXPEDITIOUSLY
NOTIFY THE OTHER PARTY AND DISCLOSE THE ADDITIONAL MATERIAL OR INFORMA-
TION AS REQUIRED FOR INITIAL DISCOVERY UNDER THIS ARTICLE. THIS
PROVISION ALSO REQUIRES EXPEDITIOUS DISCLOSURE BY THE PROSECUTION OF
MATERIAL OR INFORMATION THAT BECAME RELEVANT TO THE CASE OR DISCOVERABLE
BASED UPON RECIPROCAL DISCOVERY RECEIVED FROM THE DEFENDANT PURSUANT TO
SECTION 245.40 OF THIS ARTICLE.
S 245.85 WORK PRODUCT.
THIS ARTICLE DOES NOT AUTHORIZE DISCOVERY BY A PARTY OF THOSE PORTIONS
OF RECORDS, REPORTS, CORRESPONDENCE, MEMORANDA, OR INTERNAL DOCUMENTS OF
THE ADVERSE PARTY WHICH ARE ONLY THE LEGAL RESEARCH, OPINIONS, THEORIES
OR CONCLUSIONS OF THE ADVERSE PARTY OR ITS ATTORNEY OR THE ATTORNEY'S
AGENTS, OR OF STATEMENTS OF A DEFENDANT, WRITTEN OR RECORDED OR SUMMA-
RIZED IN ANY WRITING OR RECORDING, MADE TO THE ATTORNEY FOR THE DEFEND-
ANT OR THE ATTORNEY'S AGENTS.
S 245.90 AVAILABILITY OF REMEDIES FOR VIOLATIONS.
1. NEED FOR REMEDY. (A) WHEN MATERIAL OR INFORMATION IS DISCOVERABLE
UNDER THIS ARTICLE BUT IS DISCLOSED BELATEDLY, THE COURT SHALL IMPOSE AN
APPROPRIATE REMEDY IF THE PARTY ENTITLED TO DISCLOSURE SHOWS THAT IT WAS
SIGNIFICANTLY PREJUDICED. IF THE UNTIMELY DISCLOSURE OCCURRED BECAUSE
THE PARTY RESPONSIBLE FAILED TO MAKE REASONABLY DILIGENT EFFORTS TO
COMPLY WITH THIS ARTICLE, THE COURT HAS DISCRETION TO IMPOSE AN APPRO-
PRIATE REMEDY IF THE PARTY ENTITLED TO DISCLOSURE SHOWS SOME PREJUDICE.
IN EITHER SITUATION THE PARTY ENTITLED TO DISCLOSURE SHALL BE GIVEN
REASONABLE TIME TO PREPARE AND RESPOND TO THE NEW MATERIAL.
(B) WHEN MATERIAL OR INFORMATION IS DISCOVERABLE UNDER THIS ARTICLE
BUT CANNOT BE DISCLOSED BECAUSE IT HAS BEEN LOST OR DESTROYED, THE COURT
SHALL IMPOSE AN APPROPRIATE REMEDY IF THE PARTY ENTITLED TO DISCLOSURE
SHOWS THAT THE LOST OR DESTROYED MATERIAL MAY HAVE CONTAINED SOME INFOR-
MATION RELEVANT TO A CONTESTED ISSUE. THE APPROPRIATE REMEDY IS THAT
S. 4089 12
WHICH IS PROPORTIONATE TO THE POTENTIAL WAYS IN WHICH THE LOST OR
DESTROYED MATERIAL REASONABLY COULD HAVE BEEN HELPFUL TO THE PARTY ENTI-
TLED TO DISCLOSURE.
2. AVAILABLE REMEDIES. FOR FAILURE TO COMPLY WITH ANY DISCOVERY ORDER
IMPOSED OR ISSUED PURSUANT TO THIS ARTICLE, THE COURT MAY MAKE A FURTHER
ORDER FOR DISCOVERY, GRANT A CONTINUANCE, ORDER THAT A HEARING BE
REOPENED, ORDER THAT A WITNESS BE CALLED OR RECALLED, INSTRUCT THE JURY
THAT IT MAY DRAW AN ADVERSE INFERENCE REGARDING THE NONCOMPLIANCE,
PRECLUDE OR STRIKE A WITNESS'S TESTIMONY OR A PORTION OF A WITNESS'S
TESTIMONY, ADMIT OR EXCLUDE EVIDENCE, ORDER A MISTRIAL, ORDER THE
DISMISSAL OF ALL OR SOME OF THE CHARGES, OR MAKE SUCH OTHER ORDER AS IT
DEEMS JUST UNDER THE CIRCUMSTANCES; EXCEPT THAT ANY SANCTION AGAINST THE
DEFENDANT SHALL COMPORT WITH THE DEFENDANT'S CONSTITUTIONAL RIGHT TO
PRESENT A DEFENSE, AND PRECLUDING A DEFENSE WITNESS FROM TESTIFYING
SHALL BE PERMISSIBLE ONLY UPON A FINDING THAT THE DEFENDANT'S FAILURE TO
COMPLY WITH THE DISCOVERY OBLIGATION OR ORDER WAS WILLFUL AND MOTIVATED
BY A DESIRE TO OBTAIN A TACTICAL ADVANTAGE.
3. CONSEQUENCES OF NONDISCLOSURE OF STATEMENT OF TESTIFYING PROSE-
CUTION WITNESS. THE FAILURE OF THE PROSECUTOR OR ANY AGENT OF THE PROSE-
CUTOR TO DISCLOSE ANY WRITTEN OR RECORDED STATEMENT MADE BY A PROSE-
CUTION WITNESS WHICH RELATES TO THE SUBJECT MATTER OF THE WITNESS'S
TESTIMONY SHALL NOT CONSTITUTE GROUNDS FOR ANY COURT TO ORDER A NEW
PRE-TRIAL HEARING OR SET ASIDE A CONVICTION, OR REVERSE, MODIFY OR
VACATE A JUDGMENT OF CONVICTION, IN THE ABSENCE OF A SHOWING BY THE
DEFENDANT THAT THERE IS A REASONABLE POSSIBILITY THAT THE NON-DISCLOSURE
MATERIALLY CONTRIBUTED TO THE RESULT OF THE TRIAL OR OTHER PROCEEDING;
PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION SHALL AFFECT OR LIMIT
ANY RIGHT THE DEFENDANT MAY HAVE TO A REOPENED PRE-TRIAL HEARING WHEN
SUCH STATEMENTS WERE DISCLOSED BEFORE THE CLOSE OF EVIDENCE AT TRIAL.
S 245.95 ADMISSIBILITY OF DISCOVERY.
THE FACT THAT A PARTY HAS INDICATED DURING THE DISCOVERY PROCESS AN
INTENTION TO OFFER SPECIFIED EVIDENCE OR TO CALL A SPECIFIED WITNESS IS
NOT ADMISSIBLE IN EVIDENCE OR GROUNDS FOR ADVERSE COMMENT AT A HEARING
OR A TRIAL.
S 3. Subdivision 9 of section 65.20 of the criminal procedure law, as
added by chapter 505 of the laws of 1985 and as renumbered by chapter
548 of the laws of 2007, is amended to read as follows:
9. (a) Prior to the commencement of the hearing conducted pursuant to
subdivision five of this section, the district attorney shall, subject
to a protective order, comply with the provisions of subdivision [one]
TWO of section [240.45] 245.30 of this chapter as they concern any
witness whom the district attorney intends to call at the hearing and
the child witness.
(b) Before a defendant calls a witness at such hearing, he or she
must, subject to a protective order, comply with the provisions of
subdivision two of section [240.45] 245.30 of this chapter as they
concern all the witnesses the defendant intends to call at such hearing.
S 4. Subdivision 5 of section 200.95 of the criminal procedure law, as
added by chapter 558 of the laws of 1982, is amended to read as follows:
5. Court ordered bill of particulars. Where a prosecutor has timely
served a written refusal pursuant to subdivision four of this section
and upon motion, made in writing, of a defendant, who has made a request
for a bill of particulars and whose request has not been complied with
in whole or in part, the court must, to the extent a protective order is
not warranted, order the prosecutor to comply with the request if it is
satisfied that the items of factual information requested are authorized
S. 4089 13
to be included in a bill of particulars, and that such information is
necessary to enable the defendant adequately to prepare or conduct his
defense and, if the request was untimely, a finding of good cause for
the delay. Where a prosecutor has not timely served a written refusal
pursuant to subdivision four of this section the court must, unless it
is satisfied that the people have shown good cause why such an order
should not be issued, issue an order requiring the prosecutor to comply
or providing for any other [order] REMEDY authorized by [subdivision one
of] section [240.70] 245.90 OF THIS TITLE.
S 5. Paragraph (c) of subdivision 1 of section 255.10 of the criminal
procedure law, as added by chapter 763 of the laws of 1974, is amended
to read as follows:
(c) granting discovery pursuant to article [240] 245; or
S 6. Section 340.30 of the criminal procedure law is amended to read
as follows:
S 340.30 Pre-trial discovery and notices of defenses.
The provisions of article two hundred [forty] FORTY-FIVE, concerning
pre-trial discovery by a defendant under indictment in a superior court,
and article two hundred fifty, concerning pre-trial notice to the people
by a defendant under indictment in a superior court who intends to
advance a trial defense of mental disease or defect or of alibi, apply
to a prosecution of an information in a local criminal court.
S 7. Subdivision 14 of section 400.27 of the criminal procedure law,
as added by chapter 1 of the laws of 1995, is amended to read as
follows:
14. (a) At a reasonable time prior to the sentencing proceeding or a
mental retardation hearing:
(i) the prosecutor shall, unless previously disclosed and subject to a
protective order, make available to the defendant the statements and
information specified in subdivision [one] TWO of section [240.45]
245.20 AND SUBDIVISION TWO OF SECTION 245.30 and make available for
inspection, photographing, copying or testing the property specified in
[subdivision one of section 240.20] SUCH SECTIONS; and
(ii) the defendant shall, unless previously disclosed and subject to a
protective order, make available to the prosecution the statements and
information specified in subdivision two of section [240.45] 245.40 and
make available for inspection, photographing, copying or testing,
subject to constitutional limitations, the reports, documents and other
property specified in [subdivision one of section 240.30] SUCH SECTION.
(b) Where a party refuses to make disclosure pursuant to this section,
the provisions of [section 240.35, subdivision one of section 240.40 and
section 240.50] SECTIONS 245.55, 245.70 AND 245.90 shall apply.
(c) If, after complying with the provisions of this section or an
order pursuant thereto, a party finds either before or during a sentenc-
ing proceeding or mental retardation hearing, additional material
subject to discovery or covered by court order, the party shall promptly
make disclosure or apply for a protective order PURSUANT TO SECTION
245.10.
(d) If the court finds that a party has failed to comply with any of
the provisions of this section, the court may enter any of the [orders]
REMEDIES specified in subdivision one of section [240.70] 245.90.
S 8. The opening paragraph of paragraph (b) of subdivision 1 of
section 440.30 of the criminal procedure law, as added by chapter 19 of
the laws of 2012, is amended to read as follows:
In conjunction with the filing or consideration of a motion to vacate
a judgment pursuant to section 440.10 of this article by a defendant
S. 4089 14
convicted after a trial, in cases where the court has ordered an eviden-
tiary hearing upon such motion, the court may order that the people
produce or make available for inspection property, [as defined in subdi-
vision three of section 240.10 of this part,] in its possession, custo-
dy, or control that was secured in connection with the investigation or
prosecution of the defendant upon credible allegations by the defendant
and a finding by the court that such property, if obtained, would be
probative to the determination of defendant's actual innocence, and that
the request is reasonable. The court shall deny or limit such a request
upon a finding that such a request, if granted, would threaten the
integrity or chain of custody of property or the integrity of the proc-
esses or functions of a laboratory conducting DNA testing, pose a risk
of harm, intimidation, embarrassment, reprisal, or other substantially
negative consequences to any person, undermine the proper functions of
law enforcement including the confidentiality of informants, or on the
basis of any other factor identified by the court in the interests of
justice or public safety. The court shall further ensure that any prop-
erty produced pursuant to this paragraph is subject to a protective
order, where appropriate. The court shall deny any request made pursuant
to this paragraph where:
S 9. Subdivision 10 of section 450.10 of the penal law, as added by
chapter 795 of the laws of 1984, is amended to read as follows:
10. Where there has been a failure to comply with the provisions of
this section, and where the district attorney does not demonstrate to
the satisfaction of the court that such failure has not caused the
defendant prejudice, the court shall instruct the jury that it may
consider such failure in determining the weight to be given such
evidence and may also impose any other [sanction] REMEDIES set forth in
[subdivision one of] section [240.70] 245.90 of the criminal procedure
law; provided, however, that unless the defendant has convinced the
court that such failure has caused him undue prejudice, the court shall
not preclude the district attorney from introducing into evidence the
property, photographs, photocopies, or other reproductions of the prop-
erty or, where appropriate, testimony concerning its value and condi-
tion, where such evidence is otherwise properly authenticated and admis-
sible under the rules of evidence. Failure to comply with any one or
more of the provisions of this section shall not for that reason alone
be grounds for dismissal of the accusatory instrument.
S 10. Subdivision 5 of section 480.10 of the penal law, as added by
chapter 655 of the laws of 1990, is amended to read as follows:
5. In addition to information required to be disclosed pursuant to
article two hundred [forty] FORTY-FIVE of the criminal procedure law,
when forfeiture is sought pursuant to this article, and following the
defendant's arraignment on the special forfeiture information, the court
shall order discovery of any information not otherwise disclosed which
is material and reasonably necessary for preparation by the defendant
with respect to a forfeiture proceeding brought pursuant to this arti-
cle. Such material shall include those portions of the grand jury
minutes and such other information which pertain solely to the special
forfeiture information and shall not include information which pertains
to the criminal charges. Upon application of the prosecutor, the court
may issue a protective order pursuant to section [240.40] 245.10 of the
criminal procedure law with respect to any information required to be
disclosed pursuant to this subdivision.
S 11. Section 460.80 of the penal law, as added by chapter 516 of the
laws of 1986, is amended to read as follows:
S. 4089 15
S 460.80 Court ordered disclosure.
Notwithstanding the provisions of article two hundred [forty]
FORTY-FIVE of the criminal procedure law, when forfeiture is sought
pursuant to section 460.30 of this [chapter] ARTICLE, the court may
order discovery of any property not otherwise disclosed which is materi-
al and reasonably necessary for preparation by the defendant with
respect to the forfeiture proceeding pursuant to such section. The court
may issue a protective order denying, limiting, conditioning, delaying
or regulating such discovery where a danger to the integrity of physical
evidence or a substantial risk of physical harm, intimidation, economic
reprisal, bribery or unjustified annoyance or embarrassment to any
person or an adverse effect upon the legitimate needs of law enforce-
ment, including the protection of the confidentiality of informants, or
any other factor or set of factors outweighs the usefulness of the
discovery.
S 12. This act shall take effect on the one hundred eightieth day
after it shall have become a law; provided that the amendments to subdi-
vision 9 of section 65.20 of the criminal procedure law made by section
three of this act shall not affect the repeal of such section and shall
be deemed repealed therewith.