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

                                  3667

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 28, 2013
                               ___________

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

AN  ACT  to  amend  the  criminal  procedure  law  and the penal law, in
  relation to establishing new criminal discovery rules; and  to  repeal
  article 240 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:

  Section 1. Article 240 of the criminal procedure law is REPEALED.
  S 2. The criminal procedure law is amended by adding a new article 245
to read as follows:
                                ARTICLE 245
                                DISCOVERY
SECTION 245.10 TIMING OF DISCOVERY.
        245.20 AUTOMATIC DISCOVERY.
        245.25 MATERIAL HELD BY OTHER GOVERNMENTAL PERSONNEL.
        245.30 DISCRETIONARY DISCOVERY BY ORDER OF THE COURT.
        245.35 DEPOSITIONS.
        245.40 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
        245.45 PRESERVATION OF EVIDENCE.
        245.50 CERTIFICATES OF COMPLIANCE.
        245.55 FLOW OF INFORMATION.
        245.60 CONTINUING DUTY TO DISCLOSE.
        245.65 WORK PRODUCT.
        245.70 PROTECTIVE ORDERS.
        245.75 AMENDMENT OF DISCOVERY ORDERS.
        245.80 WAIVER OF DISCOVERY BY DEFENDANT.
        245.85 REMEDIES OR SANCTIONS FOR NONCOMPLIANCE.
        245.90 ADMISSIBILITY OF DISCOVERY.
S 245.10 TIMING OF DISCOVERY.
  1. PROSECUTION'S PERFORMANCE OF OBLIGATIONS. (A) THE PROSECUTION SHALL
PERFORM ITS INITIAL  DISCOVERY  OBLIGATIONS  UNDER  SUBDIVISION  ONE  OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04669-01-3
              

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SECTION 245.20 OF THIS ARTICLE AS SOON AS PRACTICABLE BUT NOT LATER THAN
FIFTEEN  CALENDAR  DAYS  AFTER THE DEFENDANT'S ARRAIGNMENT ON AN INDICT-
MENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFORMATION,
OR  SIMPLIFIED  INFORMATION CHARGING A MISDEMEANOR, EXCEPT THAT PORTIONS
OF MATERIALS CLAIMED TO BE NON-DISCOVERABLE MAY BE  WITHHELD  PENDING  A
DETERMINATION AND RULING OF THE COURT UNDER SECTION 245.70 OF THIS ARTI-
CLE;  BUT THE DEFENDANT MUST BE NOTIFIED IN WRITING THAT INFORMATION HAS
NOT BEEN DISCLOSED UNDER A PARTICULAR SECTION.
  (B) THE PROSECUTION SHALL PERFORM  ITS  SUPPLEMENTAL  DISCOVERY  OBLI-
GATIONS  UNDER SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE AS SOON
AS PRACTICABLE BUT NOT LATER THAN FIFTEEN CALENDAR DAYS BEFORE TRIAL.
  (C) UPON TIMELY DEFENSE REQUEST, THE PROSECUTION SHALL DISCLOSE  MATE-
RIALS  UNDER  PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS
ARTICLE TO ANY DEFENDANT WHO HAS BEEN  ARRAIGNED  IN  A  LOCAL  CRIMINAL
COURT  UPON  A  CURRENTLY  UNDISPOSED  OF  FELONY  COMPLAINT CHARGING AN
OFFENSE WHICH IS A SUBJECT  OF  A  PROSPECTIVE  OR  PENDING  GRAND  JURY
PROCEEDING,  NO  LATER  THAN FORTY-EIGHT HOURS BEFORE THE TIME SCHEDULED
FOR THE DEFENDANT TO TESTIFY AT A  GRAND  JURY  PROCEEDING  PURSUANT  TO
SUBDIVISION FIVE OF SECTION 190.50 OF THIS CHAPTER.
  2.  DISCLOSURE PRIOR TO A GUILTY PLEA DEADLINE. IF THE PROSECUTION HAS
IMPOSED A GUILTY PLEA DEADLINE, BUT DOES NOT PROVIDE THE DEFENDANT  WITH
MATERIAL  DISCLOSURE LISTED IN SUBDIVISION ONE OF SECTION 245.20 OF THIS
ARTICLE AT LEAST THIRTY CALENDAR DAYS BEFORE THE GUILTY  PLEA  DEADLINE,
THE  COURT,  UPON  MOTION OF THE DEFENDANT, SHALL CONSIDER THE IMPACT OF
THE FAILURE TO PROVIDE SUCH DISCLOSURE ON THE  DEFENDANT'S  DECISION  TO
ACCEPT  OR  REJECT A GUILTY PLEA OFFER. IF THE COURT DETERMINES THAT THE
PROSECUTOR'S FAILURE TO PROVIDE SUCH DISCLOSURE MATERIALLY AFFECTED  THE
DEFENDANT'S  DECISION  TO  REJECT A GUILTY PLEA OFFER AND THE PROSECUTOR
DECLINES TO REINSTATE THAT LAPSED GUILTY  PLEA  OFFER,  THE  PRESUMPTIVE
MINIMUM  REMEDY  OR SANCTION SHALL BE PRECLUSION FROM ADMISSION AT TRIAL
OF ANY EVIDENCE NOT DISCLOSED AT LEAST THIRTY CALENDAR DAYS  BEFORE  THE
DEADLINE.    IF  THE COURT DETERMINES, UPON MOTION OF THE DEFENDANT MADE
PRIOR TO SENTENCING, THAT THE PROSECUTOR'S FAILURE TO PROVIDE DISCLOSURE
LISTED IN PARAGRAPH (J) OF SUBDIVISION ONE OF  SECTION  245.20  OF  THIS
ARTICLE  MATERIALLY AFFECTED THE DEFENDANT'S DECISION TO ACCEPT A GUILTY
PLEA  OFFER,  THE  COURT  SHALL  VACATE  THE  GUILTY  PLEA  AND  FURTHER
PROCEEDINGS SHALL BE HAD ON THE ACCUSATORY INSTRUMENT.
  3. DEFENDANT'S PERFORMANCE OF OBLIGATIONS. THE DEFENDANT SHALL PERFORM
HIS  OR  HER  DISCOVERY  OBLIGATIONS  UNDER SUBDIVISION THREE OF SECTION
245.20 OF THIS ARTICLE NOT LATER THAN THIRTY CALENDAR DAYS  AFTER  BEING
SERVED  WITH  THE  PROSECUTION'S  CERTIFICATE  OF COMPLIANCE PURSUANT TO
SUBDIVISION ONE OF SECTION 245.50 OF THIS ARTICLE, EXCEPT THAT  PORTIONS
OF  MATERIALS  CLAIMED  TO BE NON-DISCOVERABLE MAY BE WITHHELD PENDING A
DETERMINATION AND RULING OF THE COURT UNDER SECTION 245.70 OF THIS ARTI-
CLE; BUT THE PROSECUTION MUST BE NOTIFIED IN  WRITING  THAT  INFORMATION
HAS NOT BEEN DISCLOSED UNDER A PARTICULAR SECTION.
S 245.20 AUTOMATIC DISCOVERY.
  1. INITIAL DISCOVERY FOR THE DEFENDANT. THE PROSECUTION SHALL DISCLOSE
TO THE DEFENDANT, AND PERMIT THE DEFENDANT TO DISCOVER, INSPECT, COPY OR
PHOTOGRAPH,  EACH  OF  THE FOLLOWING ITEMS AND INFORMATION WHEN IT IS IN
THE POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR  PERSONS  UNDER
THE PROSECUTION'S DIRECTION OR CONTROL:
  (A) ALL WRITTEN AND RECORDED STATEMENTS, AND THE SUBSTANCE OF ALL ORAL
STATEMENTS,  MADE BY THE DEFENDANT OR A CO-DEFENDANT WHICH RELATE TO THE
SUBJECT MATTER OF THE CASE OR ARE OTHERWISE RELEVANT;

A. 3667                             3

  (B) 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 OR IS OTHERWISE RELEVANT;
  (C)  THE  NAMES,  KNOWN  ALIASES,  ADDRESSES  AND  BIRTH  DATES OF 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;
  (D) 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;
  (E)  ALL  STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING
OR RECORDING, WHICH RELATE TO THE SUBJECT MATTER  OF  THE  CASE  OR  ARE
OTHERWISE RELEVANT AND WERE MADE BY PERSONS WHOM THE PROSECUTOR KNOWS TO
HAVE  EVIDENCE  OR  INFORMATION  RELEVANT TO ANY OFFENSE CHARGED OR TO A
POTENTIAL DEFENSE THERETO;
  (F) INTENDED EXPERT OPINION EVIDENCE,  INCLUDING  THE  NAME,  BUSINESS
ADDRESS,  CURRENT  CURRICULUM  VITAE, AND A LIST OF PUBLICATIONS OF EACH
INTENDED EXPERT WITNESS, 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 SUBDIVISION 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 SECTION 245.10  OF  THIS  ARTICLE,  THAT
PERIOD  SHALL  BE  STAYED  WITHOUT NEED FOR A MOTION PURSUANT TO SECTION
245.75 OF THIS ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON
AS PRACTICABLE AND NOT LATER THAN  SIXTY  CALENDAR  DAYS  BEFORE  TRIAL,
UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.75 OF THIS ARTICLE;
  (G) ALL POLICE REPORTS, LAW ENFORCEMENT AGENCY REPORTS, POLICE OFFICER
MEMO  BOOK  ENTRIES  AND LOG ENTRIES AND NOTES, INTENDED EXHIBITS, TAPES
AND OTHER ELECTRONIC RECORDINGS,  PHOTOGRAPHS,  DRAWINGS,  AND  TANGIBLE
OBJECTS  WHICH RELATE TO THE SUBJECT MATTER OF THE CASE OR ARE OTHERWISE
RELEVANT, INCLUDING ANY PHOTOGRAPH, PHOTOCOPY OR REPRODUCTION 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;
  (H)  ALL REPORTS, DOCUMENTS, RESULTS AND INFORMATION CONCERNING SCIEN-
TIFIC TESTS AND EXPERIMENTS AND COMPARISONS,  AND  PHYSICAL  AND  MENTAL
EXAMINATIONS  OF  ANY  PERSON, WHICH RELATE TO THE SUBJECT MATTER OF THE
CASE OR ARE OTHERWISE RELEVANT;
  (I) ALL TANGIBLE OBJECTS OBTAINED FROM OR ALLEGEDLY BELONGING  TO  THE
DEFENDANT  OR  A CO-DEFENDANT, INCLUDING A DESIGNATION BY THE PROSECUTOR
AS TO WHICH TANGIBLE OBJECTS WERE PHYSICALLY OR CONSTRUCTIVELY POSSESSED
BY THE DEFENDANT AND WERE RECOVERED DURING A  SEARCH  OR  SEIZURE  BY  A
POLICE  OFFICER  OR  OTHER PUBLIC SERVANT OR AN AGENT THEREOF, AND WHICH
TANGIBLE OBJECTS WERE RECOVERED BY A  POLICE  OFFICER  OR  OTHER  PUBLIC
SERVANT  OR  AN  AGENT  THEREOF  AFTER  ALLEGEDLY BEING ABANDONED BY THE
DEFENDANT.  IF  THE  PROSECUTION  INTENDS  TO  PROVE   THE   DEFENDANT'S
POSSESSION  OF  ANY  TANGIBLE  OBJECTS  SOLELY  BY  MEANS OF A STATUTORY
PRESUMPTION OF POSSESSION UNDER SECTION 220.25 OR 265.15  OF  THE  PENAL
LAW  OR  ANOTHER PROVISION, IT SHALL ALSO DESIGNATE THAT INTENTION AS TO
EACH SUCH  OBJECT.  IN  ADDITION  THE  PROSECUTOR  SHALL  DESIGNATE  THE
LOCATIONS FROM WHICH ALL TANGIBLE OBJECTS WERE RECOVERED;

A. 3667                             4

  (J) ALL EVIDENCE AND INFORMATION WHICH TENDS TO NEGATE THE DEFENDANT'S
GUILT  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  SUPPORT  A  MOTION  TO  SUPPRESS  EVIDENCE  ON  CONSTITUTIONAL
GROUNDS, OR WHICH WOULD TEND TO REDUCE THE PUNISHMENT OF THE DEFENDANT.
  (I)  SUCH  EVIDENCE  OR INFORMATION INCLUDES BUT IS NOT LIMITED TO: AN
OVERT OR TACIT LENIENCY OFFER  OR  DEAL  WITH  A  POTENTIAL  PROSECUTION
WITNESS  OR  AN  INFORMANT;  A  POTENTIAL  PROSECUTION  WITNESS'S  OR AN
INFORMANT'S PRIOR  INCONSISTENT  STATEMENTS;  INFORMATION  INDICATING  A
POTENTIAL  PROSECUTION WITNESS'S OR AN INFORMANT'S POSSIBLE BIAS, INTER-
EST, HOSTILITY, OR REASONS  TO  FABRICATE;  INFORMATION  THAT  TENDS  TO
UNDERCUT  THE  BELIEVABILITY  OF A POTENTIAL PROSECUTION WITNESS'S OR AN
INFORMANT'S FACTUAL ACCOUNT; PRIOR CONDUCT, MISCONDUCT AND CRIMINAL ACTS
THAT TEND TO UNDERCUT THE CREDIBILITY OF A POTENTIAL PROSECUTION WITNESS
OR AN INFORMANT; AND INFORMATION THAT TENDS TO UNDERCUT THE PROOF OF  AN
ELEMENT  OF  A  CHARGED  OFFENSE OR THAT OTHERWISE TENDS TO INDICATE THE
DEFENDANT MAY NOT BE GUILTY.
  (II) DISCLOSURE IS REQUIRED EVEN IF THE PROSECUTION DOUBTS THE BELIEV-
ABILITY OR USEFULNESS TO THE DEFENDANT OF THE EVIDENCE  OR  INFORMATION,
OR  BELIEVES IT CAN BE RECONCILED WITH THE PROSECUTION'S OTHER EVIDENCE;
OR IF IT HAS BOTH AN INCULPATORY AND AN EXCULPATORY  EFFECT;  OR  IF  IT
RELATES  TO  A  POTENTIAL  DEFENSE  DIFFERENT  FROM  THAT WHICH HAS BEEN
ANNOUNCED OR IS BEING PURSUED; OR IF IT HAS  NOT  BEEN  MEMORIALIZED  OR
RECORDED IN TANGIBLE FORM; OR IF IT IS NOT ADMISSIBLE AS EVIDENCE IN ITS
PRESENT  FORM; OR IF IT IS KNOWN TO THE DEFENDANT; OR IF IT RELATES TO A
PERSON WHOM THE PROSECUTION DOES NOT INTEND TO CALL  AT  TRIAL  BUT  WHO
POSSESSES EXCULPATORY INFORMATION;
  (K)  A  SUMMARY OF ALL CORPOREAL OR NON-CORPOREAL OR VOICE IDENTIFICA-
TION PROCEDURES, INCLUDING NOT ONLY PROCEDURES IN  WHICH  AN  EYEWITNESS
IDENTIFIED  THE DEFENDANT BUT ALSO PROCEDURES IN WHICH AN EYEWITNESS DID
NOT IDENTIFY THE DEFENDANT WHEN THE OPPORTUNITY FOR SUCH  IDENTIFICATION
EXISTED. THE SUMMARY SHALL INCLUDE:
  (I) THE DATE, TIME, LOCATION, TYPE, AND RESULT OF EACH PROCEDURE;
  (II)  THE  NAMES  OF ALL PERSONS PRESENT AT EACH PROCEDURE IF KNOWN TO
LAW ENFORCEMENT;
  (III) THE NAME AND ADDRESS OF EACH EYEWITNESS AT EACH PROCEDURE;
  (IV) THE NUMBER AND SOURCE OF ALL PHOTOGRAPHS OR  LINEUP  PARTICIPANTS
USED IN EACH PROCEDURE;
  (V)  A  COPY  OF ALL PHOTOGRAPHS, PHOTOGRAPHIC ARRAYS, AND PHOTOGRAPHS
TAKEN OF ALL LINEUPS VIEWED BY AN EYEWITNESS;
  (VI) THE DESCRIPTIONS  OF  SUSPECTS  ENTERED  INTO  AN  ELECTRONIC  OR
COMPUTER  PHOTOGRAPHIC  IDENTIFICATION SYSTEM, AND A SAVED COLLECTION OF
THE PHOTOGRAPHIC IMAGES GENERATED BY EACH DESCRIPTION AND VIEWED BY EACH
EYEWITNESS;
  (VII) WHETHER THE PROCEDURE WAS SIMULTANEOUS OR SEQUENTIAL;
  (VIII) ALL STATEMENTS MADE IN THE PRESENCE OF OR  BY  EACH  EYEWITNESS
THAT ARE RELEVANT TO THE ISSUE OF IDENTITY OR TO THE FAIRNESS OR ACCURA-
CY OF THE PROCEDURE, INCLUDING THE WORDS USED BY AN EYEWITNESS IN MAKING
ANY  IDENTIFICATION  AND  ANY  WORDS  DESCRIBING HIS OR HER CERTAINTY OR
UNCERTAINTY IN AN IDENTIFICATION AT THE TIME IT WAS MADE;
  (IX) ALL STATEMENTS MADE BY EACH EYEWITNESS REGARDING THE ROLE IN  THE
CHARGED  OFFENSE  OF  A  PERSON  IDENTIFIED  AND  ANY OTHER RELATIONSHIP
BETWEEN THEM;
  (X) WHETHER THE EYEWITNESS SELECTED A DIFFERENT PERSON AS  THE  PERPE-
TRATOR  OR  INDICATED  A  BELIEF  THAT  HE OR SHE COULD NOT IDENTIFY THE
PERPETRATOR;

A. 3667                             5

  (XI) WHETHER BEFORE THE PROCEDURE THE EYEWITNESS WAS  INSTRUCTED  THAT
THE PERPETRATOR MIGHT OR MIGHT NOT BE PRESENT;
  (XII)  WHETHER  THE  ADMINISTRATOR OF EACH PROCEDURE KNEW WHICH PERSON
WAS THE SUSPECT, AND WHETHER, BEFORE THE PROCEDURE, THE  EYEWITNESS  WAS
INSTRUCTED  THAT  THE  ADMINISTRATOR  DID  NOT KNOW WHICH PERSON WAS THE
SUSPECT; AND
  (XIII) IF THE PROSECUTION POSSESSES  INFORMATION  THAT  AN  EYEWITNESS
MADE  A CORPOREAL OR NON-CORPOREAL OR VOICE OBSERVATION OF THE DEFENDANT
ON ANY OTHER OCCASION AFTER THE TIME OF THE CHARGED OFFENSE  BUT  BEFORE
TRIAL,  REGARDLESS OF THE INVOLVEMENT OR LACK OF INVOLVEMENT OF A POLICE
OFFICER OR OTHER PUBLIC SERVANT  IN  THAT  OBSERVATION,  IT  SHALL  ALSO
DISCLOSE THAT INFORMATION;
  (L) 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 AND INDUCEMENT;
  (M) WHETHER THE PROSECUTION HAS ANY EVIDENCE OR INFORMATION  THAT  HAS
BEEN PROVIDED BY A CONFIDENTIAL INFORMANT OR A JAILHOUSE INFORMANT WHICH
RELATES TO THE SUBJECT MATTER OF THE CASE OR IS OTHERWISE RELEVANT;
  (N)  WHETHER  A  SEARCH  WARRANT  HAS  BEEN EXECUTED AND ALL DOCUMENTS
RELATING THERETO, INCLUDING BUT NOT LIMITED TO THE WARRANT, THE  WARRANT
APPLICATION,  ALL SUPPORTING AFFIDAVITS, A POLICE INVENTORY OF ALL PROP-
ERTY SEIZED UNDER THE WARRANT, AND A  TRANSCRIPT  OF  ALL  TESTIMONY  OR
OTHER ORAL COMMUNICATIONS OFFERED IN SUPPORT OF THE WARRANT APPLICATION;
  (O)  WHETHER THERE HAS BEEN ANY ELECTRONIC SURVEILLANCE, INCLUDING BUT
NOT LIMITED TO WIRETAPPING OR VIDEO  SURVEILLANCE,  OF  A  RESIDENCE  OR
BUSINESS  OR TELEPHONE OR COMPUTER OR OTHER ELECTRONIC OR DIGITAL DEVICE
OF THE DEFENDANT, OR OF CONVERSATIONS TO WHICH THE DEFENDANT OR A CO-DE-
FENDANT  WAS  A  PARTY,  AND  ALL  RECORDINGS,  TRANSCRIPTS,  DOCUMENTS,
WARRANTS AND WARRANT APPLICATION MATERIALS RELATING THERETO;
  (P)  THE  APPROXIMATE  DATE, TIME AND PLACE OF THE OFFENSE OR OFFENSES
CHARGED AND OF THE DEFENDANT'S SEIZURE AND ARREST;
  (Q) WHETHER A CHARGED OFFENSE WAS SEEN BY A POLICE  OFFICER  OR  OTHER
PUBLIC SERVANT FROM A POLICE OBSERVATION POST AND, IF SO, WHETHER VISUAL
MAGNIFICATION  OR  ENHANCEMENT EQUIPMENT WAS USED. THE PROSECUTION SHALL
PROVIDE COUNSEL FOR THE DEFENDANT WITH INFORMATION SUFFICIENT TO  UNDER-
TAKE  A  REASONABLE INVESTIGATION OF THE LOCATION OF THE POLICE OBSERVA-
TION POST ON CONDITION THAT SUCH INFORMATION SHALL BE AVAILABLE ONLY  TO
COUNSEL FOR THE DEFENDANT AND DEFENSE PERSONNEL AND NOT TO THE DEFENDANT
IF  THE  OBSERVATION POST IS STILL USED; EXCEPT THAT A DIFFERENT PROTEC-
TIVE ORDER PURSUANT TO SECTION 245.70 OF THIS ARTICLE MAY BE  ISSUED  BY
THE COURT FOR GOOD CAUSE SHOWN;
  (R)  ALL  INFORMATION OR MATERIAL REQUIRED TO BE GATHERED OR MEMORIAL-
IZED PURSUANT TO SUBDIVISIONS ONE AND TWO  OF  SECTION  245.45  OF  THIS
ARTICLE;
  (S) ANY DOCUMENTATION THAT THE PROSECUTOR HAS OBTAINED THAT RELATES TO
THE SUBJECT MATTER OF THE CASE OR IS OTHERWISE RELEVANT, CONCERNING:
  (I) CELLULAR TELEPHONE ACCOUNT INFORMATION AND RECORDS, CELLULAR TELE-
PHONE  CALL  DATA  AND RECORDS, CELLULAR TELEPHONE TEXT MESSAGE DATA AND
RECORDS, RECORDINGS OF CELLULAR TELEPHONE MESSAGES, RECORDS OF  CELLULAR
TELEPHONE  TEXT MESSAGES, RECORDS OF CELLULAR TELEPHONE PHOTOGRAPHS, AND
CELLULAR TELEPHONE TOWER DATA AND RECORDS;
  (II) EMAIL ACCOUNT INFORMATION  AND  RECORDS,  AND  RECORDS  OF  EMAIL
MESSAGES AND INSTANT MESSAGES;
  (III) INTERNET SERVICE PROVIDER ACCOUNT INFORMATION AND RECORDS;

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  (IV)  INTERNET  SOCIAL  NETWORK ACCOUNT INFORMATION, RECORDS AND POST-
INGS;
  (V) RECORDS OF INTERNET INSTANT MESSAGES, WEB PAGES AND WEB POSTINGS;
  (VI)  ACCOUNT  INFORMATION,  RECORDS  AND DATA FROM A PERSONAL DIGITAL
ASSISTANT DEVICE OR OTHER ELECTRONIC OR DIGITAL DEVICE USED FOR COMMUNI-
CATION OR FOR RECORDING OR STORING INFORMATION;
  (VII) DATA, RECORDS AND DOCUMENTS OBTAINED FROM A COMPUTER HARD DRIVE;
  (VIII) ACCOUNT INFORMATION, RECORDS AND DATA FROM AN  ELECTRONIC  TOLL
OR MASS TRANSIT SYSTEM FEE PAYMENT DEVICE; AND
  (IX) SIMILAR DOCUMENTATION THAT RELATES TO OTHER ELECTRONIC OR DIGITAL
COMMUNICATION, RECORDING, OR STORAGE DEVICES;
  (T) ANY DOCUMENTATION THAT THE PROSECUTOR HAS OBTAINED REGARDING PRIOR
AND  PENDING  ACCUSATORY INSTRUMENTS, CONVICTIONS, DISPOSITIONS, AND THE
PROBATIONARY STATUS OF ALL DEFENDANTS AND ALL  WITNESSES  DESIGNATED  AS
POTENTIAL PROSECUTION WITNESSES PURSUANT TO PARAGRAPH (C) OF THIS SUBDI-
VISION. IF COUNSEL FOR THE DEFENDANT LACKS ACCESS TO A DATABASE BY WHICH
TO  OBTAIN  THE  COMPLETE  CRIMINAL  RECORD  OF  ALL  DEFENDANTS AND ALL
WITNESSES DESIGNATED AS POTENTIAL PROSECUTION WITNESSES, THE  PROSECUTOR
ALSO  SHALL  EITHER (I) PROVIDE COUNSEL FOR THE DEFENDANT WITH ACCESS TO
SUCH A DATABASE, OR (II) PROVIDE THE DEFENDANT WITH THAT INFORMATION;
  (U) 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 INFORMATION
CHARGING A MISDEMEANOR, THE MOST  RECENT  RECORD  OF  INSPECTION,  CALI-
BRATION  AND  REPAIR OF MACHINES AND INSTRUMENTS UTILIZED TO PERFORM ANY
SCIENTIFIC TESTS AND EXPERIMENTS AND THE CERTIFICATION  CERTIFICATE,  IF
ANY,  HELD  BY  THE OPERATOR OF THE MACHINE OR INSTRUMENT, AND ALL OTHER
DISCLOSURES REQUIRED UNDER THIS ARTICLE; AND
  (V) IN ANY PROSECUTION ALLEGING  A  VIOLATION  OF  SECTION  156.05  OR
156.10  OF  THE  PENAL  LAW,  THE TIME, PLACE AND MANNER OF NOTICE GIVEN
PURSUANT TO SUBDIVISION EIGHT OF SECTION 156.00 OF THE PENAL LAW.
  2. SUPPLEMENTAL DISCOVERY FOR THE  DEFENDANT.  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, INFORMATION, OR SIMPLIFIED INFORMATION  CHARG-
ING  A  MISDEMEANOR,  WHICH  THE PROSECUTION INTENDS TO USE AT TRIAL FOR
PURPOSES OF IMPEACHING THE CREDIBILITY OF THE DEFENDANT OR  AS  SUBSTAN-
TIVE PROOF OF ANY MATERIAL ISSUE IN THE CASE.
  3.  RECIPROCAL DISCOVERY FOR THE PROSECUTION. (A) THE DEFENDANT SHALL,
SUBJECT TO CONSTITUTIONAL LIMITATIONS, DISCLOSE TO THE PROSECUTION,  AND
PERMIT  THE  PROSECUTION  TO  DISCOVER, INSPECT, COPY OR PHOTOGRAPH, ANY
MATERIAL AND RELEVANT EVIDENCE WITHIN THE DEFENDANT'S OR COUNSEL FOR THE
DEFENDANT'S POSSESSION OR CONTROL THAT IS DISCOVERABLE UNDER  PARAGRAPHS
(F),  (G),  (H)  AND  (L)  OF SUBDIVISION ONE OF THIS SECTION, WHICH THE
DEFENDANT INTENDS TO OFFER AT  TRIAL,  AND  THE  NAMES,  KNOWN  ALIASES,
ADDRESSES,  BIRTH  DATES,  AND  ALL  STATEMENTS,  WRITTEN OR RECORDED OR
SUMMARIZED IN ANY WRITING OR RECORDING, OF THOSE PERSONS OTHER THAN  THE
DEFENDANT WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL.
  (B)  DISCLOSURE  OF  THE NAME, KNOWN ALIASES, ADDRESS, BIRTH DATE, AND
ALL STATEMENTS, WRITTEN OR RECORDED OR  SUMMARIZED  IN  ANY  WRITING  OR
RECORDING,  OF  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 SUCH PROSECUTION WITNESS HAS TESTIFIED AT TRIAL.
  (C) IF IN  THE  EXERCISE  OF  REASONABLE  DILIGENCE  THE  RECIPROCALLY
DISCOVERABLE  INFORMATION UNDER PARAGRAPH (F) OF SUBDIVISION ONE OF THIS
SECTION IS UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME  PERIOD  SPECIFIED

A. 3667                             7

IN  SUBDIVISION  THREE  OF  SECTION  245.10 OF THIS ARTICLE, THAT PERIOD
SHALL BE STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.75  OF
THIS  ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON AS PRAC-
TICABLE  AND NOT LATER THAN THIRTY CALENDAR DAYS BEFORE TRIAL, UNLESS AN
ORDER IS OBTAINED PURSUANT TO SECTION 245.75 OF THIS ARTICLE.
  4. STAY OF AUTOMATIC DISCOVERY; REMEDIES AND  SANCTIONS.  SUBDIVISIONS
ONE  AND  THREE  OF SECTION 245.10 OF THIS ARTICLE AND SUBDIVISIONS ONE,
TWO AND THREE OF THIS SECTION SHALL HAVE THE FORCE AND EFFECT OF A COURT
ORDER, AND FAILURE TO PROVIDE DISCOVERY PURSUANT TO THEM MAY  RESULT  IN
APPLICATION  OF  ANY  REMEDIES OR SANCTIONS PERMITTED FOR NON-COMPLIANCE
WITH A COURT ORDER UNDER SECTION 245.85 OF THIS ARTICLE. HOWEVER, IF  IN
THE JUDGMENT OF EITHER PARTY GOOD CAUSE EXISTS FOR DECLINING TO MAKE ANY
OF  THE  DISCLOSURES SET FORTH ABOVE, IT MAY MOVE FOR A PROTECTIVE ORDER
PURSUANT TO SECTION 245.70 OF THIS ARTICLE AND PRODUCTION  OF  THE  ITEM
SHALL  BE STAYED PENDING A RULING BY THE COURT. THE OPPOSING PARTY SHALL
BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED  UNDER  A
PARTICULAR  SECTION.  WHEN  SOME  PARTS  OF  MATERIAL OR INFORMATION ARE
DISCOVERABLE BUT IN THE JUDGMENT  OF  A  PARTY  GOOD  CAUSE  EXISTS  FOR
DECLINING  TO  DISCLOSE  OTHER  PARTS,  THE  DISCOVERABLE PARTS SHALL BE
DISCLOSED AND THE DISCLOSING PARTY SHALL GIVE  NOTICE  IN  WRITING  THAT
NONDISCOVERABLE PARTS HAVE BEEN WITHHELD.
  5.  NOTICE  AND PRESERVATION OF EVIDENCE. (A) UPON RECEIPT OF INFORMA-
TION THAT ANY ITEM DESCRIBED IN SUBDIVISION ONE OF THIS SECTION  EXISTS,
EXCEPT  THAT  IT IS NOT WITHIN THE POSSESSION, CUSTODY OR CONTROL OF THE
PROSECUTION OR PERSONS UNDER THE PROSECUTION'S DIRECTION OR CONTROL, THE
PROSECUTION SHALL EXPEDITIOUSLY NOTIFY THE DEFENDANT OF THE EXISTENCE OF
THE ITEM AND OF ALL INFORMATION KNOWN TO THE PROSECUTOR  CONCERNING  THE
ITEM'S LOCATION AND THE IDENTITY OF ANY PERSONS POSSESSING IT.
  (B)  AT  ANY  TIME,  A  PARTY MAY MOVE FOR AN 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.
IN  ADDITION,  AT  ANY  TIME, THE DEFENDANT MAY MOVE FOR AN ORDER TO ANY
INDIVIDUAL, AGENCY OR OTHER ENTITY IN POSSESSION, CUSTODY OR CONTROL  OF
A  CRIME  SCENE  THAT  RELATES  TO  THE SUBJECT MATTER OF THE CASE OR IS
OTHERWISE RELEVANT, REQUIRING THAT COUNSEL FOR THE DEFENDANT BE  GRANTED
PROMPT  AND  REASONABLE  ACCESS  TO  INSPECT, PHOTOGRAPH OR MEASURE THAT
CRIME SCENE, AND THAT THE CONDITION OF THE CRIME SCENE REMAIN  UNCHANGED
IN  THE  INTERIM.  THE COURT SHALL HEAR AND RULE UPON SUCH MOTIONS EXPE-
DITIOUSLY. THE COURT MAY MODIFY OR VACATE SUCH  ORDERS  UPON  A  SHOWING
THAT  PRESERVATION  OF  PARTICULAR  EVIDENCE,  OR  GRANTING  ACCESS TO A
PARTICULAR CRIME SCENE, WILL CREATE SIGNIFICANT HARDSHIP,  ON  CONDITION
THAT  THE PROBATIVE VALUE OF THAT EVIDENCE OR THAT LOCATION IS PRESERVED
BY A SPECIFIED ALTERNATIVE MEANS.
S 245.25 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 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 USE DUE DILIGENCE AND MAKE GOOD FAITH EFFORTS TO  CAUSE
SUCH  MATERIAL OR INFORMATION TO BE MADE AVAILABLE TO THE DEFENDANT, AND
IF THE PROSECUTOR'S EFFORTS ARE UNSUCCESSFUL AND SUCH MATERIAL OR INFOR-
MATION OR OTHER GOVERNMENTAL PERSONNEL ARE SUBJECT TO  THE  JURISDICTION
OF THE COURT, THE COURT, UPON MOTION OF THE DEFENDANT, SHALL ISSUE SUIT-

A. 3667                             8

ABLE  SUBPOENAS  OR  ORDERS  TO CAUSE SUCH MATERIAL OR INFORMATION TO BE
MADE AVAILABLE FOR DISCLOSURE TO THE DEFENDANT.
S 245.30 DISCRETIONARY DISCOVERY BY ORDER OF THE COURT.
  1.  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 MATERIAL OR INFORMATION WHICH POTENTIALLY RELATES TO
THE SUBJECT MATTER OF THE CASE OR IS OTHERWISE RELEVANT. A MOTION  UNDER
THIS  SECTION  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 UNREASON-
ABLE OR OPPRESSIVE.  THE COURT MAY PERMIT A PARTY SEEKING OR OPPOSING  A
DISCRETIONARY ORDER OF DISCOVERY UNDER THIS SECTION, 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.
  2.  UPON  MOTION  OF  A DEFENDANT AGAINST WHOM AN INDICTMENT, SUPERIOR
COURT INFORMATION, PROSECUTOR'S INFORMATION, INFORMATION, OR  SIMPLIFIED
INFORMATION  CHARGING  A MISDEMEANOR IS PENDING, THE COURT IN WHICH SUCH
ACCUSATORY INSTRUMENT IS PENDING:
  (A) MUST ORDER DISCOVERY AS TO ANY MATERIAL NOT DISCLOSED PURSUANT  TO
SECTION  245.20  OF  THIS  ARTICLE,  IF  IT  FINDS THAT THE PROSECUTOR'S
REFUSAL TO DISCLOSE SUCH MATERIAL IS NOT JUSTIFIED;
  (B) MUST, UNLESS IT IS SATISFIED THAT THE PEOPLE HAVE SHOWN GOOD CAUSE
WHY SUCH AN ORDER SHOULD NOT BE ISSUED, ORDER  DISCOVERY  OR  ANY  OTHER
ORDER  AUTHORIZED  BY  SECTION 245.85 OF THIS ARTICLE AS TO ANY MATERIAL
NOT DISCLOSED PURSUANT TO SECTION 245.20 OF THIS ARTICLE;
  (C) MAY ORDER DISCOVERY WITH RESPECT TO ANY OTHER PROPERTY, WHICH  THE
PEOPLE INTEND TO INTRODUCE AT THE TRIAL, UPON A SHOWING BY THE DEFENDANT
THAT DISCOVERY WITH RESPECT TO SUCH PROPERTY IS MATERIAL TO THE PREPARA-
TION OF HIS OR HER DEFENSE, AND THAT THE REQUEST IS REASONABLE;
  (D)  WHERE  PROPERTY  IN  THE PEOPLE'S POSSESSION, CUSTODY, OR CONTROL
THAT CONSISTS OF A DEOXYRIBONUCLEIC ACID ("DNA") PROFILE  OBTAINED  FROM
PROBATIVE  BIOLOGICAL  MATERIAL GATHERED IN CONNECTION WITH THE INVESTI-
GATION OR PROSECUTION OF THE DEFENDANT  AND  THE  DEFENDANT  ESTABLISHES
THAT SUCH PROFILE COMPLIES WITH FEDERAL BUREAU OF INVESTIGATION OR STATE
REQUIREMENTS,  WHICHEVER  ARE  APPLICABLE  AND  AS SUCH REQUIREMENTS ARE
APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING A KEYBOARD SEARCH OR SIMILAR
COMPARISON, AND THAT THE DATA MEETS STATE DNA INDEX SYSTEM  OR  NATIONAL
DNA  INDEX  SYSTEM CRITERIA AS SUCH CRITERIA ARE APPLIED TO LAW ENFORCE-
MENT AGENCIES SEEKING SUCH A KEYBOARD SEARCH OR SIMILAR COMPARISON,  THE
COURT  MAY  ORDER  AN  ENTITY  THAT HAS ACCESS TO THE COMBINED DNA INDEX
SYSTEM OR ITS SUCCESSOR SYSTEM TO COMPARE SUCH DNA PROFILE  AGAINST  DNA
DATABANKS  BY  KEYBOARD  SEARCHES,  OR  A  SIMILAR  METHOD THAT DOES NOT
INVOLVE UPLOADING, UPON NOTICE TO BOTH PARTIES AND THE  ENTITY  REQUIRED
TO  PERFORM  THE  SEARCH,  UPON  A  SHOWING BY THE DEFENDANT THAT SUCH A
COMPARISON IS MATERIAL TO THE PRESENTATION OF HIS  OR  HER  DEFENSE  AND
THAT  THE  REQUEST  IS  REASONABLE.  FOR  PURPOSES  OF THIS PARAGRAPH, A
"KEYBOARD SEARCH" SHALL MEAN A SEARCH OF A DNA PROFILE AGAINST THE DATA-
BANK IN WHICH THE PROFILE THAT IS SEARCHED IS NOT UPLOADED TO  OR  MAIN-
TAINED IN THE DATABANK; AND
  (E)  MAY  ORDER THE DIVISION OF CRIMINAL JUSTICE SERVICES TO COMPARE A
FINGERPRINT OBTAINED IN CONNECTION WITH THE INVESTIGATION OR PROSECUTION
OF THE DEFENDANT AGAINST THE STATEWIDE AUTOMATED FINGERPRINT IDENTIFICA-

A. 3667                             9

TION SYSTEM, OR ITS SUCCESSOR SYSTEM, AND THE NATIONAL INTEGRATED  AUTO-
MATED  FINGERPRINT  IDENTIFICATION SYSTEM, OR ITS SUCCESSOR SYSTEM, UPON
THE COURT'S DETERMINATION THAT SUCH FINGERPRINT  COMPLIES  WITH  FEDERAL
BUREAU  OF INVESTIGATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE
AND AS SUCH REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING
SUCH A COMPARISON AND UPON A SHOWING BY THE DEFENDANT THAT SUCH  COMPAR-
ISON  IS MATERIAL TO THE PREPARATION OF HIS OR HER DEFENSE, AND THAT THE
REQUEST IS REASONABLE.
  UPON GRANTING THE MOTION PURSUANT TO PARAGRAPH (C)  OF  THIS  SUBDIVI-
SION,  THE  COURT  SHALL,  UPON  MOTION OF THE PEOPLE SHOWING SUCH TO BE
MATERIAL TO THE PREPARATION OF  THEIR  CASE  AND  THAT  THE  REQUEST  IS
REASONABLE,  CONDITION  ITS  ORDER  OF  DISCOVERY  BY  FURTHER DIRECTING
DISCOVERY BY THE PEOPLE OF PROPERTY, OF THE SAME KIND  OR  CHARACTER  AS
THAT  AUTHORIZED  TO  BE  INSPECTED  BY  THE  DEFENDANT, WHICH HE OR SHE
INTENDS TO INTRODUCE AT THE TRIAL.
S 245.35 DEPOSITIONS.
  1. AVAILABILITY; USE. AT 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 DEPO-
SITION IF THE PARTY SHOWS THAT THE PERSON'S TESTIMONY IS MATERIAL TO THE
CASE OR NECESSARY ADEQUATELY TO PREPARE A DEFENSE, AND THAT  THE  PERSON
WILL  NOT  COOPERATE IN GRANTING A PERSONAL INTERVIEW. A PERSON'S STATE-
MENTS IN A DEPOSITION UNDER THIS  SECTION  MAY  BE  USED  IN  SUBSEQUENT
PROCEEDINGS IN THE SAME MANNER AS OTHER OUT-OF-COURT STATEMENTS.
  2. MOTION FOR TAKING DEPOSITION; NOTICE; SERVICE. A MOTION FOR DEPOSI-
TION  SHALL SPECIFY THE TIME AND PLACE FOR TAKING THE DEPOSITION AND THE
NAME AND ADDRESS OF EACH PERSON TO BE EXAMINED, TOGETHER WITH DESIGNATED
PAPERS, DOCUMENTS, TAPES OR OTHER ELECTRONIC RECORDINGS, PHOTOGRAPHS  OR
OTHER  TANGIBLE OBJECTS, NOT PRIVILEGED, TO BE PRODUCED AT THE SAME TIME
AND PLACE.  THE COURT MAY CHANGE SUCH TERMS AND SPECIFY  ANY  ADDITIONAL
CONDITIONS  GOVERNING  THE  CONDUCT  OF THE PROCEEDING. THE MOVING PARTY
SHALL PROVIDE NOTICE OF THE DEPOSITION IN THE  MANNER  PROVIDED  FOR  IN
CIVIL  ACTIONS  AND  SERVE  A SUBPOENA UPON THE DEPONENT, SPECIFYING THE
TERMS AND CONDITIONS SET FORTH IN THE COURT'S ORDER GRANTING THE DEPOSI-
TION, AND GIVE REASONABLE NOTICE OF THE DEPOSITION IN WRITING  TO  EVERY
OTHER PARTY.
  3.  MANNER  OF TAKING. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION OR
BY ORDER OF THE COURT, DEPOSITIONS SHALL BE TAKEN IN THE MANNER PROVIDED
IN CIVIL ACTIONS. WITH THE CONSENT OF THE PARTIES, THE COURT  MAY  ORDER
THAT  A  DEPOSITION  BE  TAKEN  ON WRITTEN INTERROGATORIES IN THE MANNER
PROVIDED IN CIVIL ACTIONS. ANY STATEMENTS, WRITTEN OR RECORDED OR SUMMA-
RIZED IN ANY WRITING OR RECORDING, OF THE WITNESS  BEING  DEPOSED  WHICH
ARE  IN  THE  POSSESSION,  CUSTODY OR CONTROL OF ANY PARTY SHALL BE MADE
AVAILABLE FOR EXAMINATION AND USE AT THE TAKING OF THE DEPOSITION TO ANY
PARTY.  THE DEPOSITION SHALL BE RECORDED  BY  AN  ELECTRONIC  RECORDING,
WHICH  MUST INCLUDE NOT ONLY AUDIO BUT ALSO VISUAL RECORDING, UNLESS THE
COURT ORDERS OTHERWISE, OR  THE  PARTIES  STIPULATE  THAT  IT  SHALL  BE
RECORDED  IN ANOTHER MANNER. IF A DEPOSITION IS RECORDED BY OTHER THAN A
CERTIFIED COURT REPORTER, THE PARTY TAKING THE DEPOSITION SHALL  PROVIDE
EVERY  OTHER  PARTY WITH A COPY OF THE RECORDING WITHIN FIFTEEN CALENDAR
DAYS AFTER THE TAKING OF THE DEPOSITION OR NOT LESS  THAN  TEN  CALENDAR
DAYS  BEFORE  TRIAL, WHICHEVER IS EARLIER. THE PARTIES MAY STIPULATE, OR
THE COURT MAY ORDER,  THAT  A  DEPOSITION  BE  TAKEN  BY  TELEPHONE  AND
RECORDED.  ALL  PARTIES  AND COUNSEL SHALL HAVE A RIGHT TO BE PRESENT AT
THE DEPOSITION. A DEFENDANT SHALL NOT BE PHYSICALLY PRESENT AT A DEPOSI-

A. 3667                            10

TION, EXCEPT ON STIPULATION OF THE PARTIES OR  BY  ORDER  OF  THE  COURT
BASED UPON A SHOWING OF GOOD CAUSE.
S 245.40 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
SUCH RIGHTS AS THE DEFENDANT MAY DERIVE FROM THE NEW  YORK  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  245.70  OF  THIS
ARTICLE.
S 245.45 PRESERVATION OF EVIDENCE.
  1.  APPARENTLY  MATERIAL WITNESS OR PHYSICAL EVIDENCE. (A) WHEN POLICE
OFFICERS OR OTHER LAW ENFORCEMENT PERSONNEL PARTICIPATE IN THE  INVESTI-
GATION OF AN APPARENT CRIMINAL INCIDENT, AND PROVIDED THAT IT IS PRACTI-
CABLE  UNDER  THE  CIRCUMSTANCES,  THEY  SHALL  REQUEST  AND MEMORIALIZE
CONTACT INFORMATION FOR AN APPARENTLY MATERIAL WITNESS OF WHOM THEY  ARE
AWARE, AND THEY SHALL GATHER OR MEMORIALIZE APPARENTLY MATERIAL PHYSICAL
EVIDENCE  OF  WHICH  THEY  ARE  AWARE,  WHENEVER THE WITNESS OR PHYSICAL
EVIDENCE APPEARS TO BE OF SUCH A NATURE AND POTENTIAL SIGNIFICANCE  THAT
AN ACCUSED MAY BE UNABLE TO OBTAIN OTHER EVIDENCE, POSSESSING A COMPARA-
BLE POTENTIAL TO MITIGATE OR NEGATE HIS OR HER GUILT WERE IT FOUND TO BE
EXCULPATORY,  BY  OTHER  REASONABLY AVAILABLE MEANS UNLESS THESE ACTIONS
ARE TAKEN TO PRESERVE THE AVAILABILITY OF THE WITNESS  OR  THE  PHYSICAL
EVIDENCE.  THIS SUBDIVISION DOES NOT, HOWEVER, REQUIRE THAT POLICE OFFI-
CERS  OR  OTHER  LAW  ENFORCEMENT  PERSONNEL  TAKE AND PRESERVE A SECOND
SAMPLE OF THE DEFENDANT'S BREATH FOR LATER TESTING BY THE  DEFENDANT  IN
CASES ARISING UNDER THE VEHICLE AND TRAFFIC LAW.
  (B)  IF  THE  PROSECUTION  IS  UNABLE TO DISCLOSE SUCH MATERIAL TO THE
DEFENDANT PURSUANT TO PARAGRAPH (R) OF SUBDIVISION ONE OF SECTION 245.20
OF THIS ARTICLE DUE TO A FAILURE  TO  COMPLY  WITH  THIS  OBLIGATION  BY
POLICE  OFFICERS  OR BY OTHER LAW ENFORCEMENT PERSONNEL, THE COURT, UPON
MOTION OF THE DEFENDANT SHOWING THAT THE WITNESS OR  EVIDENCE  HAS  BEEN
IRRETRIEVABLY  LOST AND THAT THE DEFENDANT CANNOT OBTAIN OTHER EVIDENCE,
POSSESSING A COMPARABLE POTENTIAL TO MITIGATE OR NEGATE HIS OR HER GUILT
WERE IT FOUND TO BE EXCULPATORY, BY OTHER  REASONABLY  AVAILABLE  MEANS,
SHALL  IMPOSE  AN  APPROPRIATE  REMEDY  OR  SANCTION PURSUANT TO SECTION
245.85 OF THIS ARTICLE.

A. 3667                            11

  2. VIDEOTAPE OF INTERVIEW AT  POLICE  STATION  OR  OTHER  FACILITY  OF
DETENTION. (A) NO ORAL, WRITTEN, OR SIGN LANGUAGE STATEMENT OF A SUSPECT
MADE  DURING  AN  INTERVIEW  AT  A  POLICE  STATION OR OTHER FACILITY OF
DETENTION 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. INTERVIEWING WITHIN THE MEANING OF THIS  SUBDIVISION
DOES  NOT  INCLUDE  ROUTINE  PEDIGREE INQUIRY OR STATEMENTS MADE IN OPEN
COURT OR BEFORE A GRAND JURY. BRIEF PERIODS OF RECESS DURING  WHICH  ALL
INTERVIEWING  CEASES  DO NOT CONSTITUTE AN IMPERMISSIBLE INTERRUPTION OF
THE COMPLETE INTERVIEW, BUT THE STARTING TIME OF SUCH A RECESS  AND  THE
RESUMPTION  TIME OF THE INTERVIEW SHALL BE MEMORIALIZED. THE INTERVIEWER
NEED NOT INFORM THE SUSPECT THAT AN ELECTRONIC RECORDING IS BEING  MADE.
A  SUSPECT'S  REFUSAL TO PARTICIPATE IN AN INTERVIEW BECAUSE IT IS ELEC-
TRONICALLY RECORDED, IF THAT REFUSAL ITSELF IS  ELECTRONICALLY  RECORDED
AS  PROVIDED  HEREIN,  SHALL RENDER THIS SUBDIVISION INAPPLICABLE TO ALL
STATEMENTS MADE AFTER THE REFUSAL IF THE COURT FINDS BEYOND A REASONABLE
DOUBT THAT IT WAS VOLUNTARY AND UNEQUIVOCAL. LAW  ENFORCEMENT  PERSONNEL
SHALL  NOT  EXPRESSLY  OR  IMPLICITLY ENCOURAGE THE SUSPECT TO GIVE SUCH
CONDITIONAL CONSENT TO AN INTERVIEW IN LIEU  OF  A  COMPLETELY  RECORDED
INTERVIEW.
  (B)  IF  THE COURT FINDS, BY A PREPONDERANCE OF THE EVIDENCE, THAT THE
DEFENDANT WAS SUBJECTED TO EARLIER INTERVIEWING AT A POLICE  STATION  OR
OTHER  FACILITY OF DETENTION IN VIOLATION OF THIS SUBDIVISION, THEN UPON
DEFENSE REQUEST WHEN STATEMENTS MADE IN COMPLIANCE WITH THIS SUBDIVISION
ARE ADMITTED AT TRIAL AS EVIDENCE AGAINST THE DEFENDANT, THE COURT SHALL
GIVE THE FOLLOWING INSTRUCTION TO THE JURY AT THE TIME OF  THEIR  ADMIS-
SION AND AGAIN IN ITS FINAL INSTRUCTIONS ON THE LAW: "NEW YORK STATE LAW
REQUIRES  THAT  ALL INTERVIEWS OF A SUSPECT AT A POLICE STATION OR OTHER
FACILITY OF DETENTION MUST BE RECORDED  BY  VIDEOTAPE  OR  OTHER  VISUAL
RECORDING,  BECAUSE  THIS  ENHANCES THE RELIABILITY OF THE PROCESS UNDER
WHICH THE STATEMENTS ARE OBTAINED AND ALLOWS THE  JURY  TO  MORE  FAIRLY
ASSESS  THE  STATEMENTS.  A  JUDGE  HAS  FOUND IN THIS CASE THAT EARLIER
INTERVIEWING OCCURRED  AT  THE  POLICE  STATION  OR  OTHER  FACILITY  OF
DETENTION  THAT WAS NOT RECORDED. BECAUSE OF THIS FAILURE TO COMPLY WITH
THE RULE THAT ALL SUCH INTERVIEWS MUST BE RECORDED,  THE  STATEMENTS  BY
THE  DEFENDANT  THAT  YOU HAVE SEEN SHOULD BE WEIGHED WITH GREAT CAUTION
AND CARE."
  (C) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SUBDIVISION, AN  ORAL,
WRITTEN,  OR  SIGN  LANGUAGE  STATEMENT  OF THE DEFENDANT MADE DURING AN
INTERVIEW AT A POLICE STATION OR OTHER FACILITY OF DETENTION IS ADMISSI-
BLE AS EVIDENCE AGAINST THE DEFENDANT IN A CRIMINAL PROCEEDING  IN  THIS
STATE  IF THE STATEMENT WAS OBTAINED IN ANOTHER STATE IN COMPLIANCE WITH
THE LAWS OF THAT STATE, OR BY A FEDERAL LAW ENFORCEMENT OFFICER IN  THIS
STATE OR ANOTHER STATE IN COMPLIANCE WITH THE LAWS OF THE UNITED STATES.
  3.  911  TELEPHONE  CALL  AND  POLICE  RADIO  TRANSMISSION  ELECTRONIC
RECORDINGS. (A) WHENEVER AN ELECTRONIC RECORDING OF A 911 TELEPHONE CALL
OR A POLICE RADIO TRANSMISSION WAS MADE IN CONNECTION WITH THE  INVESTI-
GATION  OF  AN APPARENT CRIMINAL INCIDENT, THE ARRESTING OFFICER OR LEAD
DETECTIVE SHALL EXPEDITIOUSLY NOTIFY THE PROSECUTION IN WRITING UPON THE
FILING OF AN ACCUSATORY INSTRUMENT OF THE EXISTENCE OF  ALL  SUCH  KNOWN
RECORDINGS. THE PROSECUTION SHALL EXPEDITIOUSLY TAKE WHATEVER REASONABLE
STEPS  ARE  NECESSARY  TO ENSURE THAT ALL KNOWN ELECTRONIC RECORDINGS OF
911 TELEPHONE CALLS AND POLICE RADIO TRANSMISSIONS  MADE  IN  CONNECTION
WITH  THE  CASE  ARE PRESERVED THROUGHOUT THE PENDENCY OF THE CASE. UPON

A. 3667                            12

THE DEFENDANT'S TIMELY REQUEST AND DESIGNATION OF A SPECIFIC  ELECTRONIC
RECORDING  OF  A  911  TELEPHONE  CALL, THE PROSECUTION SHALL ALSO EXPE-
DITIOUSLY TAKE WHATEVER REASONABLE STEPS ARE NECESSARY TO ENSURE THAT IT
IS PRESERVED THROUGHOUT THE PENDENCY OF THE CASE.
  (B)  IF THE PROSECUTION FAILS TO DISCLOSE SUCH AN ELECTRONIC RECORDING
TO THE DEFENDANT PURSUANT TO PARAGRAPH (G) OF SUBDIVISION ONE OF SECTION
245.20 OF THIS ARTICLE DUE TO A FAILURE TO COMPLY WITH  THIS  OBLIGATION
BY  POLICE  OFFICERS  OR OTHER LAW ENFORCEMENT OR PROSECUTION PERSONNEL,
THE COURT UPON MOTION OF THE DEFENDANT SHALL IMPOSE AN APPROPRIATE REME-
DY OR SANCTION PURSUANT TO SECTION 245.85 OF THE ARTICLE.
S 245.50 CERTIFICATES OF COMPLIANCE.
  1. BY THE PROSECUTION. WHEN THE PROSECUTION HAS PROVIDED ALL DISCOVERY
REQUIRED BY SUBDIVISION ONE OF SECTION 245.20  OF  THIS  ARTICLE  OR  BY
COURT ORDER, IT SHALL FILE WITH THE COURT AND SERVE UPON THE DEFENDANT A
CERTIFICATE OF COMPLIANCE. THE CERTIFICATE SHALL STATE THAT, TO THE BEST
OF  THE PROSECUTOR'S KNOWLEDGE AND AFTER MAKING REASONABLE INQUIRIES AND
EXERCISING DUE DILIGENCE, HE OR SHE HAS DISCLOSED AND MADE AVAILABLE ALL
MATERIAL AND INFORMATION SUBJECT TO DISCOVERY, AND SHALL  IDENTIFY  EACH
ITEM  PROVIDED.  IN  ADDITION,  THE CERTIFICATE SHALL STATE THAT, TO THE
BEST OF THE PROSECUTOR'S KNOWLEDGE AND AFTER MAKING REASONABLE INQUIRIES
AND EXERCISING DUE DILIGENCE:
  (A) HE OR SHE HAS COMPLIED WITH THESE OBLIGATIONS WITH RESPECT TO  ALL
MATERIAL  AND  INFORMATION IN THE CUSTODY OR CONTROL OF ALL POLICE OFFI-
CERS AND OTHER PERSONS WHO HAVE PARTICIPATED IN INVESTIGATING OR  EVALU-
ATING THE CASE; AND
  (B) HE OR SHE 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 EVIDENCE OR INFORMATION WITHIN PARAGRAPH
(J) OF SUBDIVISION ONE OF SECTION 245.20 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 INFOR-
MATION  TO  THE  DEFENDANT.  IF  ADDITIONAL  DISCOVERY  IS  SUBSEQUENTLY
PROVIDED PURSUANT TO SECTION 245.60  OF  THIS  ARTICLE,  A  SUPPLEMENTAL
CERTIFICATE  SHALL BE FILED WITH THE COURT AND SERVED UPON THE DEFENDANT
IDENTIFYING THE ADDITIONAL MATERIAL AND INFORMATION PROVIDED.
  2. BY THE DEFENDANT. WHEN THE DEFENDANT  HAS  PROVIDED  ALL  DISCOVERY
REQUIRED  BY  SUBDIVISION  THREE OF SECTION 245.20 OF THIS ARTICLE OR BY
COURT ORDER, COUNSEL FOR THE DEFENDANT SHALL FILE  WITH  THE  COURT  AND
SERVE  UPON THE PROSECUTION A CERTIFICATE OF COMPLIANCE. THE CERTIFICATE
SHALL STATE THAT, TO THE BEST OF COUNSEL FOR THE  DEFENDANT'S  KNOWLEDGE
AND  AFTER  MAKING REASONABLE INQUIRIES AND EXERCISING DUE DILIGENCE, HE
OR SHE HAS DISCLOSED AND MADE AVAILABLE  ALL  MATERIAL  AND  INFORMATION
SUBJECT  TO  DISCOVERY,  AND SHALL IDENTIFY EACH ITEM PROVIDED. IF ADDI-
TIONAL DISCOVERY IS SUBSEQUENTLY PROVIDED PURSUANT TO SECTION 245.60  OF
THIS  ARTICLE,  A SUPPLEMENTAL CERTIFICATE SHALL BE FILED WITH THE COURT
AND SERVED UPON THE PROSECUTION IDENTIFYING THE ADDITIONAL MATERIAL  AND
INFORMATION PROVIDED.
S 245.55 FLOW OF INFORMATION.
  1.  SUFFICIENT  COMMUNICATION  FOR  COMPLIANCE.  THE  PROSECUTOR SHALL
ENSURE THAT A FLOW OF INFORMATION IS MAINTAINED BETWEEN THE  POLICE  AND
OTHER  INVESTIGATIVE PERSONNEL AND HIS OR HER OFFICE SUFFICIENT TO PLACE
WITHIN HIS OR HER POSSESSION OR CONTROL  ALL  MATERIAL  AND  INFORMATION
PERTINENT  TO THE DEFENDANT AND THE OFFENSE OR OFFENSES CHARGED, INCLUD-
ING ANY EVIDENCE OR INFORMATION WHICH TENDS TO  NEGATE  THE  DEFENDANT'S
GUILT  OR  TO  MITIGATE  THE  DEFENDANT'S  CULPABILITY  AS  TO A CHARGED
OFFENSE, OR WHICH TENDS TO SUPPORT A POTENTIAL DEFENSE THERETO, OR WHICH

A. 3667                            13

TENDS TO PROVIDE A BASIS FOR A MOTION TO SUPPRESS EVIDENCE ON  CONSTITU-
TIONAL  GROUNDS,  OR  WHICH  WOULD  TEND TO REDUCE THE PUNISHMENT OF THE
DEFENDANT.
  2.  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.
S 245.60 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
SUBDIVISION THREE OF SECTION 245.20 OF THIS ARTICLE.
S 245.65 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 245.70 PROTECTIVE ORDERS.
  UPON A SHOWING OF GOOD CAUSE, THE COURT MAY AT  ANY  TIME  ORDER  THAT
DISCOVERY,  DISCLOSURE  OR INSPECTION BE DENIED, RESTRICTED, CONDITIONED
OR DEFERRED, OR MAKE SUCH OTHER ORDER AS IS APPROPRIATE. THE COURT  MAY,
FOR  GOOD  CAUSE  SHOWN, GRANT DISCOVERY OR DISCLOSURE TO A DEFENDANT ON
THE CONDITION THAT THE MATERIAL  OR  INFORMATION  TO  BE  DISCOVERED  OR
DISCLOSED BE AVAILABLE ONLY TO COUNSEL FOR THE DEFENDANT. THIS PROVISION
DOES  NOT ALTER THE ALLOCATION OF THE BURDEN OF PROOF WITH REGARD TO THE
MATTER AT ISSUE, INCLUDING PRIVILEGE. THE COURT MAY PERMIT A PARTY SEEK-
ING 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.
S 245.75 AMENDMENT OF DISCOVERY ORDERS.
  UPON MOTION OF EITHER PARTY MADE SUBSEQUENT TO AN ORDER OF  THE  COURT
ISSUED PURSUANT TO THIS ARTICLE, THE COURT MAY ALTER OR AMEND THE PREVI-
OUS  ORDER  OR ORDERS AS THE INTERESTS OF JUSTICE MAY REQUIRE. THE COURT
MAY, FOR GOOD CAUSE SHOWN, AFFIRM A PRIOR ORDER ISSUED OR IMPOSED PURSU-
ANT TO THIS ARTICLE GRANTING DISCOVERY TO A  DEFENDANT  UPON  THE  ADDI-
TIONAL  CONDITION  THAT  THE MATERIAL OR INFORMATION TO BE DISCOVERED OR
DISCLOSED BE AVAILABLE ONLY TO COUNSEL FOR THE DEFENDANT. THE COURT  MAY
ALTER  THE  TIMES  FOR  COMPLIANCE  WITH  ANY  DISCOVERY ORDER ISSUED OR
IMPOSED PURSUANT TO THIS ARTICLE UPON A SHOWING OF GOOD CAUSE.
S 245.80 WAIVER OF DISCOVERY BY DEFENDANT.
  A DEFENDANT WHO DOES NOT SEEK DISCOVERY  FROM  THE  PROSECUTION  UNDER
THIS  ARTICLE  SHALL  SO  NOTIFY  THE  PROSECUTION  AND THE COURT AT THE
DEFENDANT'S ARRAIGNMENT ON AN INDICTMENT,  SUPERIOR  COURT  INFORMATION,
PROSECUTOR'S  INFORMATION, INFORMATION, OR SIMPLIFIED INFORMATION CHARG-
ING A MISDEMEANOR, OR  EXPEDITIOUSLY  THEREAFTER  BUT  BEFORE  RECEIVING

A. 3667                            14

DISCOVERY  FROM  THE  PROSECUTION PURSUANT TO SUBDIVISION ONE OF SECTION
245.20 OF THIS ARTICLE, AND THE DEFENDANT NEED NOT PROVIDE DISCOVERY  TO
THE  PROSECUTION  PURSUANT  TO  SUBDIVISION  THREE OF SECTION 245.20 AND
SECTION  245.60 OF THIS ARTICLE. A WAIVER SHALL BE IN WRITING AND SIGNED
BY THE DEFENDANT OR COUNSEL FOR THE DEFENDANT. SUCH A  WAIVER  DOES  NOT
ALTER  OR  IN  ANY  WAY AFFECT THE PROCEDURES, OBLIGATIONS OR RIGHTS SET
FORTH IN SECTIONS 250.10, 250.20 AND 250.30 OF THIS TITLE, OR  OTHERWISE
ESTABLISHED OR REQUIRED BY LAW.
S 245.85 REMEDIES OR SANCTIONS FOR NONCOMPLIANCE.
  1.  AVAILABLE  REMEDIES  OR  SANCTIONS. FOR FAILURE TO COMPLY WITH ANY
DISCOVERY ORDER ISSUED OR IMPOSED 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 THE SANCTION  OF  PRECLUDING  A  DEFENSE
WITNESS  FROM  TESTIFYING  SHALL BE PERMISSIBLE ONLY UPON A FINDING THAT
THE DEFENDANT'S FAILURE TO COMPLY WITH THE DISCOVERY ORDER  WAS  WILLFUL
AND MOTIVATED BY A DESIRE TO OBTAIN A TACTICAL ADVANTAGE.
  2.  NEED  FOR  REMEDY OR SANCTION. (A) WHEN MATERIAL OR INFORMATION IS
DISCOVERABLE UNDER THIS ARTICLE, BUT IT CANNOT BE DISCLOSED  BECAUSE  IT
HAS BEEN LOST OR DESTROYED, THE COURT SHALL IMPOSE AN APPROPRIATE REMEDY
OR  SANCTION  WHENEVER  THE  PARTY ENTITLED TO DISCLOSURE SHOWS THAT THE
LOST OR DESTROYED MATERIAL MAY HAVE CONTAINED SOME INFORMATION  RELEVANT
TO  A CONTESTED ISSUE.  THE APPROPRIATE REMEDY OR SANCTION IS THAT WHICH
IS PROPORTIONATE TO THE POTENTIAL WAYS IN WHICH THE  LOST  OR  DESTROYED
MATERIAL  REASONABLY  COULD  HAVE  BEEN HELPFUL TO THE PARTY ENTITLED TO
DISCLOSURE.
  (B) WHEN MATERIAL OR INFORMATION IS DISCOVERABLE UNDER  THIS  ARTICLE,
BUT  IT  IS  DISCLOSED  BELATEDLY, THE COURT SHALL IMPOSE AN APPROPRIATE
REMEDY OR SANCTION WHENEVER THE PARTY ENTITLED TO DISCLOSURE SHOWS  THAT
IT WAS SIGNIFICANTLY PREJUDICED.
  3.  SANCTION  FOR NONDISCLOSURE OF STATEMENT OF TESTIFYING PROSECUTION
WITNESS. THE FAILURE OF THE PROSECUTOR OR ANY AGENT OF THE PROSECUTOR TO
DISCLOSE ANY WRITTEN OR RECORDED STATEMENT MADE BY A PROSECUTION 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 245.90 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. Section 65.20 of the criminal procedure law, as added by chapter
505 of the laws of 1985, subdivision 2 as added, the  opening  paragraph
of  subdivision  10 as amended and subdivisions 3, 4, 5, 6, 7, 8, 9, 10,

A. 3667                            15

11, 12 and 13 as renumbered by chapter 548 of the laws of 2007, subdivi-
sion 7 and paragraph (k) of subdivision 10 as amended by chapter 320  of
the laws of 2006 and subdivisions 11 and 12 as amended by chapter 455 of
the laws of 1991, is amended to read as follows:
S 65.20 Closed-circuit television; procedure for application and grounds
            for determination.
  1.  Prior  to  the commencement of a criminal proceeding; other than a
grand jury proceeding, either party may apply to the court for an  order
declaring that a child witness is vulnerable.
  2.  A  child  witness should be declared vulnerable when the court, in
accordance with the provisions of this section, determines by clear  and
convincing  evidence  that the child witness would suffer serious mental
or emotional harm that would substantially  impair  the  child  witness'
ability  to communicate with the finder of fact without the use of live,
two-way closed-circuit television.
  3. A motion pursuant to subdivision one of this section must  be  made
in writing at least eight days before the commencement of trial or other
criminal  proceeding  upon reasonable notice to the other party and with
an opportunity to be heard.
  4. The motion papers must state the basis  for  the  motion  and  must
contain sworn allegations of fact which, if true, would support a deter-
mination by the court that the child witness is vulnerable. Such allega-
tions  may  be based upon the personal knowledge of the deponent or upon
information and belief, provided that, in the latter event, the  sources
of such information and the grounds for such belief are stated.
  5. The answering papers may admit or deny any of the alleged facts and
may,  in  addition,  contain  sworn  allegations of fact relevant to the
motion, including the rights of the defendant, the need to  protect  the
child  witness  and  the  integrity of the truth-finding function of the
trier of fact.
  6. Unless all material facts alleged in support  of  the  motion  made
pursuant  to  subdivision  one  of  this section are conceded, the court
shall, in addition to examining the papers and  hearing  oral  argument,
conduct  an  appropriate  hearing  for the purpose of making findings of
fact essential to the determination of the motion. Except as provided in
subdivision [six] SEVEN of this section, it may  subpoena  or  call  and
examine witnesses, who must either testify under oath or be permitted to
give  unsworn testimony pursuant to subdivision two of section 60.20 and
must authorize the attorneys for the parties to do the same.
  7. Notwithstanding any other provision of law, the child  witness  who
is  alleged  to  be  vulnerable  may not be compelled to testify at such
hearing or to submit to any psychological  or  psychiatric  examination.
The failure of the child witness to testify at such hearing shall not be
a  ground  for denying a motion made pursuant to subdivision one of this
section. Prior statements made by the  child  witness  relating  to  any
allegations  of  conduct  constituting an offense defined in article one
hundred thirty of the penal law or incest as defined in section  255.25,
255.26  or  255.27  of such law or to any allegation of words or conduct
constituting an attempt to prevent, impede or deter  the  child  witness
from  cooperating  in  the  investigation  or prosecution of the offense
shall be admissible at such hearing, provided, however, that a  declara-
tion  that  a  child  witness is vulnerable may not be based solely upon
such prior statements.
  8. (a) Notwithstanding any of the provisions of article forty-five  of
the  civil practice law and rules, any physician, psychologist, nurse or
social worker who has treated a child witness may testify at  a  hearing

A. 3667                            16

conducted  pursuant  to  subdivision five of this section concerning the
treatment of such child witness as such treatment relates to  the  issue
presented  at the hearing, provided that any otherwise applicable statu-
tory  privileges concerning communications between the child witness and
such physician, psychologist, nurse or social worker in connection  with
such  treatment  shall  not  be  deemed  waived by such testimony alone,
except to the limited extent of permitting the court alone to examine in
camera reports, records or documents, if any, prepared  by  such  physi-
cian, psychologist, nurse or social worker. If upon such examination the
court  determines that such reports, records or documents, or any one or
portion thereof, contain information material and relevant to the  issue
of  whether  the  child witness is a vulnerable child witness, the court
shall disclose such information to both the attorney for  the  defendant
and the district attorney.
  (b)  At  any time after a motion has been made pursuant to subdivision
one of this section, upon the demand of the other party the moving party
must furnish the demanding party with a copy of  any  and  all  of  such
records,  reports  or  other  documents  in the possession of such other
party and must, in addition, supply the court with a copy  of  all  such
reports, records or other documents which are the subject of the demand.
At any time after a demand has been made pursuant to this paragraph, the
moving  party  may demand that property of the same kind or character in
possession of the party that originally made such demand be furnished to
the moving party and, if so furnished, be supplied, in addition, to  the
court.
  9.  (a) Prior to the commencement of the hearing conducted pursuant to
subdivision [five] SIX of this section,  the  district  attorney  shall,
subject  to  a protective order, comply with the provisions of PARAGRAPH
(C) OF subdivision one of section [240.45] 245.20  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] THREE of section [240.45] 245.20 of  this  chapter  as
they  concern  all  the  witnesses the defendant intends to call at such
hearing.
  10. The court may consider, in determining whether there  are  factors
which  would  cause  the  child  witness  to  suffer  serious  mental or
emotional harm, a finding that any one or more of the following  circum-
stances have been established by clear and convincing evidence:
  (a) The manner of the commission of the offense of which the defendant
is  accused was particularly heinous or was characterized by aggravating
circumstances.
  (b) The child witness is particularly young or otherwise  particularly
subject  to psychological harm on account of a physical or mental condi-
tion which existed before the alleged commission of the offense.
  (c) At the time of the alleged offense, the defendant occupied a posi-
tion of authority with respect to the child witness.
  (d) The offense or offenses charged were part of an ongoing course  of
conduct  committed  by  the  defendant against the child witness over an
extended period of time.
  (e) A deadly weapon or dangerous instrument was allegedly used  during
the commission of the crime.
  (f) The defendant has inflicted serious physical injury upon the child
witness.

A. 3667                            17

  (g)  A  threat,  express or implied, of physical violence to the child
witness or a third person if the child witness were to report the  inci-
dent  to  any  person  or communicate information to or cooperate with a
court, grand jury, prosecutor, police officer or peace officer  concern-
ing the incident has been made by or on behalf of the defendant.
  (h)  A threat, express or implied, of the incarceration of a parent or
guardian of the child witness, the removal of the child witness from the
family or the dissolution of the family of  the  child  witness  if  the
child  witness  were to report the incident to any person or communicate
information to or cooperate with a court, grand jury, prosecutor, police
officer or peace officer concerning the incident has been made by or  on
behalf of the defendant.
  (i)  A  witness  other than the child witness has received a threat of
physical violence directed at such witness or to a third person by or on
behalf of the defendant.
  (j) The defendant, at the time of the inquiry, (i) is  living  in  the
same  household  with  the  child  witness, (ii) has ready access to the
child witness or (iii) is providing substantial  financial  support  for
the child witness.
  (k)  The  child  witness  has previously been the victim of an offense
defined in article one hundred thirty of the  penal  law  or  incest  as
defined in section 255.25, 255.26 or 255.27 of such law.
  (l)  According to expert testimony, the child witness would be partic-
ularly [suceptible] SUSCEPTIBLE to psychological  harm  if  required  to
testify in open court or in the physical presence of the defendant.
  11.  Irrespective of whether a motion was made pursuant to subdivision
one of this section, the court, at the request of either party or on its
own motion, may decide that a child witness may be vulnerable  based  on
its own observations that a child witness who has been called to testify
at  a  criminal  proceeding is suffering severe mental or emotional harm
and therefore is physically or mentally unable to testify or to continue
to testify in open court or in the physical presence  of  the  defendant
and that the use of live, two-way closed-circuit television is necessary
to enable the child witness to testify. If the court so decides, it must
conduct  the  same  hearing  that subdivision [five] SIX of this section
requires when a motion is made  pursuant  to  subdivision  one  of  this
section,  and  it  must  make  findings of fact pursuant to subdivisions
[nine] TEN and [eleven] TWELVE of this section, before determining  that
the child witness is vulnerable.
  12. In deciding whether a child witness is vulnerable, the court shall
make  findings of fact which reflect the causal relationship between the
existence of any one or more of the factors  set  forth  in  subdivision
[nine]  TEN  of  this  section or other relevant factors which the court
finds are established and the determination that the  child  witness  is
vulnerable.  If the court is satisfied that the child witness is vulner-
able and that, under the facts and circumstances of the particular case,
the  defendant's  constitutional  rights  to  an  impartial  jury  or of
confrontation will not be impaired, it may enter an order  granting  the
application for the use of live, two-way closed-circuit television.
  13. When the court has determined that a child witness is a vulnerable
child  witness,  it  shall make a specific finding as to whether placing
the defendant and the child witness in the same room during the testimo-
ny of the child witness will contribute to the likelihood that the child
witness will suffer severe mental or emotional harm. If the court  finds
that placing the defendant and the child witness in the same room during
the  testimony  of  the  child witness will contribute to the likelihood

A. 3667                            18

that the child witness will suffer severe mental or emotional harm,  the
order  entered  pursuant  to subdivision [eleven] TWELVE of this section
shall direct that the defendant  remain  in  the  courtroom  during  the
testimony of the vulnerable child witness.
  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
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  authorized  by  [subdivision  one  of
section 240.70] SECTIONS 245.75 AND/OR 245.85 OF THIS PART.
  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 of section [240.45] 245.20 OF
THIS PART and make available for inspection, photographing,  copying  or
testing  the  property  specified in subdivision one of section [240.20;
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 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] 245.20 OF THIS PART.
  (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] 245.70, 245.75 AND/OR 245.85 OF THIS PART shall apply.

A. 3667                            19

  (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.
  (d)  If  the court finds that a party has failed to comply with any of
the provisions of this section, the court may [enter] EMPLOY any of  the
[orders]  REMEDIES  OR SANCTIONS specified in subdivision one of section
[240.70] 245.85 OF THIS PART.
  S 8. Section 440.30 of the criminal procedure law is amended by adding
a new subdivision 1-b to read as follows:
  1-B. IN RESPONSE TO A MOTION UNDER THIS SECTION, THE COURT  MAY  ORDER
THE  DIVISION  OF  CRIMINAL  JUSTICE  SERVICES  TO COMPARE A FINGERPRINT
OBTAINED IN CONNECTION WITH THE  INVESTIGATION  OR  PROSECUTION  OF  THE
DEFENDANT  AGAINST  THE  STATEWIDE  AUTOMATED FINGERPRINT IDENTIFICATION
SYSTEM, OR ITS SUCCESSOR SYSTEM, AND THE NATIONAL  INTEGRATED  AUTOMATED
FINGERPRINT  IDENTIFICATION  SYSTEM,  OR  ITS SUCCESSOR SYSTEM, UPON THE
COURT'S DETERMINATION THAT (A) SUCH FINGERPRINT  COMPLIES  WITH  FEDERAL
BUREAU  OF INVESTIGATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE
AND AS SUCH REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING
SUCH A COMPARISON AND (B) IF SUCH COMPARISON HAD BEEN CONDUCTED, AND  IF
THE  RESULTS HAD BEEN ADMITTED IN THE TRIAL RESULTING IN THE JUDGMENT, A
REASONABLE PROBABILITY EXISTS THAT THE  VERDICT  WOULD  HAVE  BEEN  MORE
FAVORABLE  TO THE DEFENDANT, OR IN A CASE INVOLVING A PLEA OF GUILTY, IF
THE RESULTS HAD BEEN AVAILABLE TO THE DEFENDANT PRIOR  TO  THE  PLEA,  A
REASONABLE  PROBABILITY  EXISTS  THAT  THE  CONVICTION  WOULD  NOT  HAVE
RESULTED.
  S 9. Section 460.80 of the penal law, as added by chapter 516  of  the
laws of 1986, is amended to read as follows:
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  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

A. 3667                            20

to  the  criminal charges. Upon application of the prosecutor, the court
may issue a protective order pursuant to section [240.40] 245.70 of  the
criminal  procedure  law  with respect to any information required to be
disclosed pursuant to this subdivision.
  S  11.  This act shall take effect on the ninetieth day after it shall
have become a law; provided, however, the amendments to 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 there-
with.