S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  1642

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  M.  of A. LENTOL, GANTT -- read once and referred to the
  Committee on Codes

AN ACT to amend the criminal procedure law,  in  relation  to  discovery
  requirements  and  procedures and to repeal certain provisions of such
  law relating thereto

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Article 240 of the criminal procedure law is REPEALED and a
new article 240 is added to read as follows:
                               ARTICLE 240
             AUTOMATIC DISCOVERY PROCEDURE AND REQUIREMENTS
SECTION 240.10 AUTOMATIC DISCOVERY.
        240.20 RECIPROCAL DISCOVERY.
        240.30 DEPOSITIONS.
        240.35 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
        240.40 PRESERVATION OF EVIDENCE.
        240.43 DISCRETIONARY DISCOVERY BY ORDER OF THE COURT.
        240.44 CERTIFICATES OF COMPLIANCE.
        240.45 CONTINUING DUTY TO DISCLOSE.
        240.50 PROTECTIVE ORDERS.
        240.60 REMEDIES  AND SANCTIONS FOR NONCOMPLIANCE WITH THIS ARTI-
                CLE.
        240.70 LOST OR DESTROYED MATERIALS.
S 240.10 AUTOMATIC DISCOVERY.
  THE PROSECUTION IS HEREBY  REQUIRED  TO  PROVIDE  DISCOVERY  MATERIALS
WITHOUT  A  MOTION  BY DEFENSE BEFORE OR AT ARRAIGNMENT. THE PROSECUTION
SHALL DISCLOSE TO THE DEFENDANT, AND PERMIT THE DEFENDANT  TO  DISCOVER,
INSPECT,   COPY  OR  PHOTOGRAPH,  ALL  ITEMS  AND  INFORMATION  WHEN  IN
POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR PERSONS  UNDER  THE
PROSECUTION'S DIRECTION OR CONTROL INCLUDING BUT NOT LIMITED TO:
  1.  WITNESS  CONTACT  INFORMATION  AND ALL WRITTEN AND RECORDED STATE-
MENTS, AND THE SUBSTANCE OF ALL ORAL STATEMENTS. THE  PROBATION  DEPART-
MENT   IS  REQUIRED  TO  PROVIDE  THE  PARTIES  WITH  A  RECORD  OF  ALL
              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04801-01-3

A. 1642                             2

CONVICTIONS, COMPLAINTS, AND INDICTMENTS AGAINST ALL OF THE  PROSPECTIVE
PROSECUTION  WITNESSES AND ALL DEFENDANTS WITHIN FIVE DAYS OF THE PROSE-
CUTION'S DISCLOSURE  OF  ITS  WITNESSES'  NAMES  AND  ADDRESSES  TO  THE
DEFENSE.
  2.  ALL  TRANSCRIPTS  OF  THE  TESTIMONY OF A PERSON WHO HAS TESTIFIED
BEFORE ANY GRAND JURY WHEN THE TESTIMONY RELATES TO THE  SUBJECT  MATTER
OF THE CASE.
  3.  IDENTIFICATION  INFORMATION  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.
  4. STATEMENTS OF IDENTIFICATION PROCEDURES.
  5. ALL TANGIBLE OBJECTS AND EXHIBITS.
  6. ALL DEFENDANTS' STATEMENTS.
  7.  ALL  EXCULPATORY  FACTS  IN  POSSESSION  OF  THE PROSECUTION OR OF
PERSONS UNDER THE PROSECUTION'S DIRECTION OR WHO INVESTIGATED THE  CASE;
NOT LIMITED TO "MATERIALLY EXCULPATORY" EVIDENCE.
  8.  ALL  STATEMENTS  WRITTEN  OR  RECORDED WHICH RELATE TO THE SUBJECT
MATTER.
  9. INTENDED EXPERT OPINION INCLUDING ALL CONTACT INFORMATION, PUBLICA-
TIONS OF INTENDED WITNESS, AND  REPORTS  PREPARED  BY  THE  EXPERT  THAT
PERTAIN TO THE CASE.
  10.  SUMMARY OF ALL CORPOREAL OR NON-CORPOREAL OR VOICE IDENTIFICATION
PROCEDURES.
  11. SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE  TO  PERSONS
WHO MAY BE CALLED AS WITNESSES.
  12.  WHETHER  THE PROSECUTION HAS ANY EVIDENCE OR INFORMATION THAT MAY
HAVE BEEN PROVIDED BY A CONFIDENTIAL OR JAILHOUSE INFORMANT.
  13. WHETHER A SEARCH WARRANT HAS BEEN  EXECUTED  AND  ALL  INFORMATION
RELATING THERETO.
  14. WHETHER THERE HAS BEEN ANY ELECTRONIC SURVEILLANCE.
S 240.20 RECIPROCAL DISCOVERY.
  THE  DEFENSE,  SUBJECT  TO  CONSTITUTIONAL LIMITATIONS, HAS RECIPROCAL
DISCOVERY OBLIGATIONS AFTER IT RECEIVES THE PROSECUTOR'S DISCOVERY PACK-
AGE. THE DEFENSE MUST DISCLOSE ALL RELEVANT MATERIAL EVIDENCE WITHIN THE
DEFENDANT'S POSSESSION INCLUDING THE NAMES, ADDRESSES,  DATES  OF  BIRTH
AND STATEMENTS BY INDIVIDUALS WHOM THE DEFENSE INTENDS TO CALL AT TRIAL,
INTENDED  EXPERT OPINION EVIDENCE, PHOTOGRAPHS, TANGIBLE OBJECTS, EXHIB-
ITS, SCIENTIFIC TEST REPORTS; AND INFORMATION REGARDING ANY  INDUCEMENTS
OR PROMISES TO ANY WITNESS.
S 240.30 DEPOSITIONS.
  ANY  TIME  AFTER  THE FILING OF AN ACCUSATORY INSTRUMENT, THE COURT IN
ITS DISCRETION MAY, UPON MOTION OF ANY PARTY, ORDER THE  EXAMINATION  OF
ANY  PERSON EXCEPT THE DEFENDANT UPON ORAL DEPOSITION IF THE PARTY SHOWS
THAT THE PERSON'S TESTIMONY IS MATERIAL TO  THE  CASE  OR  NECESSARY  TO
ADEQUATELY PREPARE A DEFENSE.
S 240.35 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
  AFTER THE FILING OF AN ACCUSATORY INSTRUMENT, AND SUBJECT TO CONSTITU-
TIONAL  LIMITATIONS, THE COURT MAY, UPON MOTION BY THE PROSECUTION SHOW-
ING PROBABLE CAUSE TO BELIEVE THE DEFENDANT HAS COMMITTED 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 APPEAR IN A LINEUP AND
OTHER EVIDENCE.
S 240.40 PRESERVATION OF EVIDENCE.
  EVIDENTIARY MATERIALS ARE REQUIRED TO BE MAINTAINED IN THEIR  ORIGINAL
CONDITION AND SHALL INCLUDE BUT NOT BE LIMITED TO:

A. 1642                             3

  1.  VIDEOTAPE OF INTERVIEWS AT THE POLICE STATION OR OTHER FACILITIES:
NO ORAL, WRITTEN OR SIGN LANGUAGE STATEMENT OF A SUSPECT MADE DURING  AN
INTERVIEW  SHALL  BE  ADMISSIBLE  AS  SUBSTANTIVE  EVIDENCE AGAINST THAT
PERSON IN ANY CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING,  WHICH
MUST  BE FOCUSED UPON BOTH THE QUESTIONER AND THE SUSPECT THROUGHOUT AND
MUST INCLUDE NOT ONLY AUDIO BUT ALSO VISUAL RECORDING, IS  MADE  OF  THE
COMPLETE INTERVIEW.
  2.  TELEPHONE  CALLS  AND  POLICE RADIO TRANSMISSIONS: WHEN ELECTRONIC
RECORDINGS OF 911 TELEPHONE CALLS OR POLICE RADIO TRANSMISSIONS ARE MADE
IN CONNECTION WITH AN  INVESTIGATION,  THE  ARRESTING  OFFICER  OR  LEAD
DETECTIVE  MUST  EXPEDITIOUSLY  NOTIFY THE PROSECUTION IN WRITING OF THE
EXISTENCE OF ALL RECORDINGS.
  3. MATERIAL POSSESSED BY OTHER GOVERNMENT PERSONNEL OR THIRD  PARTIES:
THE  PROSECUTION  IS REQUIRED TO NOTIFY THE DEFENSE WHENEVER IT RECEIVES
INFORMATION ABOUT THE EXISTENCE OF ANY OTHERWISE DISCOVERABLE ITEM  THAT
IS NOT WITHIN THE POSSESSION, CUSTODY OR CONTROL OF LAW ENFORCEMENT, AND
THE  PARTIES  CAN  MOVE  FOR A COURT ORDER REQUIRING THE PRESERVATION OF
SUCH ITEMS BY A THIRD PARTY.
S 240.43 DISCRETIONARY DISCOVERY BY ORDER OF THE COURT.
  UPON THE REQUEST BY THE DEFENDANT, TO THE COURT, IF THE  DEFENDANT  IS
UNABLE  WITHOUT  UNDUE  HARDSHIP TO OBTAIN THE SUBSTANTIAL EQUIVALENT BY
OTHER MEANS, THE COURT MAY ORDER THE  PROSECUTION,  OR  ANY  INDIVIDUAL,
AGENCY OR OTHER ENTITY TO MAKE AVAILABLE FOR DISCLOSURE TO THE DEFENDANT
ANY  MATERIAL  OF  INFORMATION  WHICH POTENTIALLY RELATES TO THE SUBJECT
MATTER OF THE CASE OR IS OTHERWISE RELEVANT.
S 240.44 CERTIFICATES OF COMPLIANCE.
  THE PROSECUTION AND DEFENSE MUST CERTIFY IN  WRITING  THAT  THEY  HAVE
EXERCISED  DUE  DILIGENCE  IN COMPLYING WITH THEIR DISCOVERY OBLIGATIONS
AND THIS CERTIFICATION MUST IDENTIFY EACH ITEM THAT WAS PROVIDED.
S 240.45 CONTINUING DUTY TO DISCLOSE.
  IF THE PROSECUTION OR THE DEFENDANT SUBSEQUENTLY LEARNS OF  ADDITIONAL
MATERIAL  OR INFORMATION WHICH IT WOULD HAVE A DUTY TO DISCLOSE PURSUANT
TO ANY PROVISIONS OF THIS ARTICLE, IT SHALL IMMEDIATELY NOTIFY THE OTHER
PARTY AND DISCLOSE THE ADDITIONAL MATERIAL OR INFORMATION AS REQUIRED BY
THIS CHAPTER.
S 240.50 PROTECTIVE ORDERS.
  THE  COURT  MAY  ORDER  THAT  DISCOVERY  OR  INSPECTION   BE   DENIED,
RESTRICTED,  CONDITIONED  OR  DEFERRED,  OR  MAY  GRANT DISCOVERY TO THE
DEFENDANT ON THE CONDITION THAT THE MATERIAL BE AVAILABLE ONLY TO  COUN-
SEL FOR THE DEFENDANT.
S 240.60 REMEDIES AND SANCTIONS FOR NONCOMPLIANCE WITH THIS ARTICLE.
  A RANGE OF LEGAL REMEDIES ARE AVAILABLE FOR FAILING TO COMPLY WITH ANY
DISCOVERY ORDER ISSUED OR IMPOSED. THIS INCLUDES BUT SHALL NOT BE LIMIT-
ED  TO  THE  ABILITY  OF THE COURT TO MAKE A FURTHER ORDER OF DISCOVERY,
GRANT A CONTINUANCE, ORDER THAT THE HEARING BE REOPENED,  ORDER  THAT  A
WITNESS  BE  CALLED  OR  RECALLED, ORDER A MISTRIAL OR DISMISSAL OF SOME
CHARGES.
S 240.70 LOST OR DESTROYED MATERIALS.
  WHEN MATERIAL OR INFORMATION IS DISCOVERABLE, BUT CANNOT BE  DISCLOSED
BECAUSE  IT HAS BEEN LOST OR DESTROYED, THE COURT SHALL IMPOSE AN APPRO-
PRIATE REMEDY OR SANCTION WHICH IS PROPORTIONATE TO THE  POTENTIAL  WAYS
IN  WHICH  THE LOST OR DESTROYED MATERIAL COULD HAVE BEEN HELPFUL TO THE
PARTY ENTITLED TO DISCLOSURE.
  S 2. This act shall take effect on the sixtieth  day  after  it  shall
have  become  a law and shall apply to all arraignments commencing on or
after such effective date.