Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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Jun 06, 2018 |
referred to rules delivered to senate passed assembly |
Mar 08, 2018 |
advanced to third reading cal.710 |
Mar 05, 2018 |
reported |
Feb 12, 2018 |
print number 4360a |
Feb 12, 2018 |
amend and recommit to codes |
Jan 03, 2018 |
referred to codes |
Feb 02, 2017 |
referred to codes |
Assembly Bill A4360A
2017-2018 Legislative Session
Establishes new criminal discovery rules; repealer
download bill text pdfSponsored By
LENTOL
Archive: Last Bill Status - In Senate Committee Rules Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
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- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
Bill Amendments
2017-A4360 - Details
- See Senate Version of this Bill:
- S8707
- Current Committee:
- Senate Rules
- Law Section:
- Criminal Procedure Law
- Laws Affected:
- Rpld Art 240, add Art 245 §§245.10 - 245.85, amd §§610.20, 65.20, 200.95, 255.10, 255.20, 340.30, 400.27 & 440.30, CP L; amd §§450.10, 460.80 & 480.10, Pen L
- Versions Introduced in Other Legislative Sessions:
-
2011-2012:
A6907
2013-2014: A3667
2015-2016: A2924
2019-2020: A1431, S1716
2017-A4360 - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 4360 2017-2018 Regular Sessions I N A S S E M B L Y February 2, 2017 ___________ 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 Article 240 of the criminal procedure law is REPEALED. § 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. § 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.
LBD03711-01-7 A. 4360 2 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. § 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. 4360 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. 4360 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. 4360 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; A. 4360 6 (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. 4360 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. § 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. 4360 8 ABLE SUBPOENAS OR ORDERS TO CAUSE SUCH MATERIAL OR INFORMATION TO BE MADE AVAILABLE FOR DISCLOSURE TO THE DEFENDANT. § 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. 4360 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. § 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. 4360 10 TION, EXCEPT ON STIPULATION OF THE PARTIES OR BY ORDER OF THE COURT BASED UPON A SHOWING OF GOOD CAUSE. § 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. § 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. 4360 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. 4360 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. § 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. § 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. 4360 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. § 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. § 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. § 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. § 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. § 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. 4360 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. § 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. § 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. § 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. 4360 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: § 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. 4360 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. 4360 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. 4360 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. § 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. § 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 § 6. Section 340.30 of the criminal procedure law is amended to read as follows: § 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. § 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. 4360 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. § 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. § 9. Section 460.80 of the penal law, as added by chapter 516 of the laws of 1986, is amended to read as follows: § 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 discov- ery of any property not otherwise disclosed which is material 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 regulat- ing 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 enforcement, including the protection of the confidentiality of informants, or any other factor or set of factors outweighs the usefulness of the discovery. § 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 A. 4360 20 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. § 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.
co-Sponsors
Al Taylor
N. Nick Perry
Felix Ortiz
Kimberly Jean-Pierre
David Weprin
Inez E. Dickens
Luis R. Sepúlveda
Ari Espinal
Ellen C. Jaffee
2017-A4360A (ACTIVE) - Details
- See Senate Version of this Bill:
- S8707
- Current Committee:
- Senate Rules
- Law Section:
- Criminal Procedure Law
- Laws Affected:
- Rpld Art 240, add Art 245 §§245.10 - 245.85, amd §§610.20, 65.20, 200.95, 255.10, 255.20, 340.30, 400.27 & 440.30, CP L; amd §§450.10, 460.80 & 480.10, Pen L
- Versions Introduced in Other Legislative Sessions:
-
2011-2012:
A6907
2013-2014: A3667
2015-2016: A2924
2019-2020: A1431, S1716
2017-A4360A (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 4360--A 2017-2018 Regular Sessions I N A S S E M B L Y February 2, 2017 ___________ Introduced by M. of A. LENTOL -- read once and referred to the Committee on Codes -- recommitted to the Committee on Codes in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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. § 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 DISCLOSURE PRIOR TO GUILTY PLEA DEADLINE. 245.30 COURT ORDERS FOR PRESERVATION, ACCESS OR DISCOVERY. 245.35 COURT ORDERED PROCEDURES TO FACILITATE COMPLIANCE. 245.40 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT. 245.45 DNA COMPARISON ORDER. 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 WAIVER OF DISCOVERY BY DEFENDANT. 245.80 REMEDIES OR SANCTIONS FOR NON-COMPLIANCE. 245.85 ADMISSIBILITY OF DISCOVERY. § 245.10 TIMING OF DISCOVERY. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03711-03-8
A. 4360--A 2 1. PROSECUTION'S PERFORMANCE OF OBLIGATIONS. (A) THE PROSECUTION SHALL PERFORM ITS INITIAL DISCOVERY OBLIGATIONS UNDER SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE AS SOON AS PRACTICABLE BUT NOT LATER THAN 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 245.70 OF THIS ARTICLE; BUT THE DEFENDANT SHALL BE NOTIFIED IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A PARTICULAR SUBDIVISION OF SUCH SECTION, AND THE DISCOVERABLE PORTIONS OF SUCH MATERIALS SHALL BE DISCLOSED IF PRACTICABLE. WHEN THE DISCOVERABLE MATERIALS ARE EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD IN THIS PARA- GRAPH MAY BE STAYED BY UP TO AN ADDITIONAL THIRTY CALENDAR DAYS WITHOUT NEED FOR A MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.70 OF THIS ARTICLE. (B) THE PROSECUTION SHALL PERFORM ITS SUPPLEMENTAL DISCOVERY OBLI- GATIONS UNDER SUBDIVISION THREE 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 PART. 2. DEFENDANT'S PERFORMANCE OF OBLIGATIONS. THE DEFENDANT SHALL PERFORM HIS OR HER DISCOVERY OBLIGATIONS UNDER SUBDIVISION FOUR 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. § 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 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 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. (B) 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 SECTION 245.10 OF THIS ARTICLE, SUCH TIME PERIOD MAY BE STAYED BY UP TO AN ADDITIONAL THIRTY CALENDAR DAYS WITHOUT NEED FOR A MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.70 OF THIS ARTICLE; A. 4360--A 3 EXCEPT THAT SUCH 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 245.70 OF THIS ARTICLE. WHEN THE COURT IS REQUIRED TO REVIEW GRAND JURY TRANSCRIPTS, THE PROSECUTION SHALL DISCLOSE SUCH TRANSCRIPTS TO THE COURT EXPEDITIOUSLY UPON RECEIPT BY THE PROSECUTOR, NOTWITHSTANDING THE OTHERWISE-APPLICABLE TIME PERIODS FOR DISCLOSURE IN THIS ARTICLE. (C) 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 SUBDIVISION RELATING TO A CONFIDENTIAL INFORMANT MAY BE WITHHELD, AND REDACTED FROM DISCOVERY MATERIALS, WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.70 OF THIS ARTICLE; BUT THE DEFENDANT SHALL BE NOTIFIED IN WRITING THAT SUCH INFORMATION HAS NOT BEEN DISCLOSED, UNLESS THE COURT RULES OTHERWISE FOR GOOD CAUSE SHOWN. (D) THE NAME AND WORK AFFILIATION 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, INCLUDING A DESIGNATION BY THE PROSECUTOR AS TO WHICH OF THOSE PERSONS MAY BE CALLED AS WITNESSES. INFORMATION UNDER THIS SUBDIVISION RELATING TO UNDERCOVER PERSONNEL MAY BE WITHHELD, AND REDACTED FROM DISCOVERY MATERIALS, WITH- OUT NEED FOR A MOTION PURSUANT TO SECTION 245.70 OF THIS ARTICLE; BUT THE DEFENDANT SHALL BE NOTIFIED IN WRITING THAT SUCH INFORMATION HAS NOT BEEN DISCLOSED, UNLESS THE COURT RULES OTHERWISE FOR GOOD CAUSE SHOWN. (E) 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 ALL POLICE REPORTS AND LAW ENFORCEMENT AGENCY REPORTS. THIS PROVISION ALSO INCLUDES STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING OR RECORDING, BY PERSONS TO BE CALLED AS WITNESSES AT PRE-TRIAL HEARINGS. (F) 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 DILI- GENCE 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 SUBDIVISION TWO OF SECTION 245.70 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 245.70 OF THIS ARTICLE. WHEN THE PROSECUTION'S EXPERT WITNESS IS BEING CALLED IN RESPONSE TO DISCLOSURE OF AN EXPERT WITNESS BY THE DEFENDANT, THE COURT SHALL ALTER A SCHEDULED TRIAL DATE, IF NECESSARY, TO ALLOW THE PROSECUTION THIRTY CALENDAR DAYS TO MAKE THE DISCLOSURE AND THE DEFENDANT THIRTY CALENDAR DAYS TO PREPARE AND RESPOND TO THE NEW MATERIALS. (G) ALL TAPES OR OTHER ELECTRONIC RECORDINGS WHICH THE PROSECUTION INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING. A. 4360--A 4 (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, DOCUMENTS, DATA, CALCULATIONS OR WRITINGS, INCLUDING BUT NOT LIMITED TO PRELIMINARY TESTS OR SCREENING RESULTS AND BENCH NOTES, CONCERNING PHYSICAL OR MENTAL EXAMINATIONS, OR SCIENTIFIC TESTS OR EXPERIMENTS OR COMPARISONS, AND ANALYSES PERFORMED ELECTRONICALLY, 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 PROSE- CUTION INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING. (K) ALL EVIDENCE AND INFORMATION, INCLUDING THAT WHICH IS KNOWN TO POLICE OR OTHER LAW ENFORCEMENT AGENCIES ACTING ON THE GOVERNMENT'S BEHALF IN THE CASE, THAT TENDS TO: (I) NEGATE THE DEFENDANT'S GUILT AS TO A CHARGED OFFENSE; (II) REDUCE THE DEGREE OF OR MITIGATE THE DEFEND- ANT'S CULPABILITY AS TO A CHARGED OFFENSE; (III) SUPPORT A POTENTIAL DEFENSE TO A CHARGED OFFENSE; (IV) IMPEACH THE CREDIBILITY OF A TESTI- FYING PROSECUTION WITNESS; (V) UNDERMINE EVIDENCE OF THE DEFENDANT'S IDENTITY AS A PERPETRATOR OF A CHARGED OFFENSE; (VI) PROVIDE A BASIS FOR A MOTION TO SUPPRESS EVIDENCE; OR (VII) MITIGATE PUNISHMENT. INFORMA- TION UNDER THIS SUBDIVISION SHALL BE DISCLOSED WHETHER OR NOT SUCH INFORMATION IS RECORDED IN TANGIBLE FORM AND IRRESPECTIVE OF WHETHER THE PROSECUTOR CREDITS THE INFORMATION. THE PROSECUTOR SHALL DISCLOSE THE INFORMATION EXPEDITIOUSLY UPON ITS RECEIPT AND SHALL NOT DELAY DISCLO- SURE IF IT IS OBTAINED EARLIER THAN THE TIME PERIOD FOR DISCLOSURE IN SUBDIVISION ONE OF SECTION 245.10 OF THIS ARTICLE. (L) A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE TO, OR IN FAVOR OF, 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. (M) 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 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 SUCH INTENTION AS TO EACH SUCH OBJECT. IF REASONABLY PRACTICABLE, THE PROSE- CUTION SHALL ALSO DESIGNATE THE LOCATION FROM WHICH EACH TANGIBLE OBJECT WAS RECOVERED. THERE IS ALSO A RIGHT TO INSPECT OR COPY OR PHOTOGRAPH THE LISTED TANGIBLE OBJECTS. (N) 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. (O) ALL TANGIBLE PROPERTY THAT THE PROSECUTION INTENDS TO INTRODUCE IN ITS CASE-IN-CHIEF AT TRIAL OR A PRE-TRIAL HEARING. IF IN THE EXERCISE OF A. 4360--A 5 REASONABLE DILIGENCE THE PROSECUTOR HAS NOT FORMED AN INTENTION WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 245.10 OF THIS ARTICLE THAT AN ITEM UNDER THIS SUBDIVISION WILL BE INTRODUCED AT TRIAL OR A PRE-TRIAL HEARING, SUCH TIME PERIOD SHALL BE STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.70 OF THIS ARTI- CLE; BUT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE AND SUBJECT TO THE CONTINUING DUTY TO DISCLOSE IN SECTION 245.60 OF THIS ARTICLE. (P) THE RESULTS OF COMPLETE CRIMINAL HISTORY RECORD CHECKS FOR ALL DEFENDANTS AND ALL PERSONS DESIGNATED AS POTENTIAL PROSECUTION WITNESSES PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION, OTHER THAN THOSE WITNESSES WHO ARE EXPERTS. (Q) 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 (C) OF THIS SUBDIVISION. (R) THE APPROXIMATE DATE, TIME AND PLACE OF THE OFFENSE OR OFFENSES CHARGED AND OF THE DEFENDANT'S SEIZURE AND ARREST. (S) 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. (T) 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. 2. DISCOVERY BY THE PROSECUTION. THE PROSECUTOR SHALL MAKE A DILI- GENT, GOOD FAITH EFFORT TO ASCERTAIN THE EXISTENCE OF MATERIAL OR INFOR- MATION DISCOVERABLE UNDER SUBDIVISION ONE OF THIS SECTION AND TO CAUSE SUCH MATERIAL OR INFORMATION TO BE MADE AVAILABLE FOR DISCOVERY WHERE IT EXISTS BUT IS NOT WITHIN THE PROSECUTOR'S POSSESSION, CUSTODY OR CONTROL; PROVIDED THAT THE PROSECUTOR SHALL NOT BE REQUIRED TO OBTAIN BY SUBPOENA DUCES TECUM MATERIAL OR INFORMATION WHICH THE DEFENDANT MAY THEREBY OBTAIN. THIS PROVISION SHALL NOT REQUIRE THE PROSECUTOR TO ASCERTAIN THE EXISTENCE OF WITNESSES NOT KNOWN TO POLICE OR ANOTHER LAW ENFORCEMENT AGENCY, OR THE WRITTEN OR RECORDED STATEMENTS THEREOF, UNDER PARAGRAPH (C) OR (E) OF SUBDIVISION ONE OF THIS SECTION. 3. 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, 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. IN ADDITION THE PROSECUTION SHALL DESIGNATE WHETHER IT INTENDS TO USE EACH LISTED ACT FOR IMPEACHMENT AND/OR AS SUBSTANTIVE PROOF. 4. 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), (J), (1) AND (O) OF SUBDIVISION ONE OF THIS SECTION, WHICH THE DEFENDANT INTENDS TO OFFER AT TRIAL OR A PRE-TRIAL HEARING, AND THE NAMES, ADDRESSES, BIRTH DATES, AND ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING OR RECORDING, OF THOSE PERSONS A. 4360--A 6 OTHER THAN THE DEFENDANT WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL OR A PRE-TRIAL HEARING. (B) DISCLOSURE OF THE NAME, 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 THE PROSECUTION WITNESS HAS TESTIFIED AT TRIAL. (C) IF IN THE EXERCISE OF REASONABLE DILIGENCE THE RECIPROCALLY DISCOVERABLE INFORMATION UNDER PARAGRAPH (F) OR (O) OF SUBDIVISION ONE OF THIS SECTION IS UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION TWO OF SECTION 245.10 OF THIS ARTICLE, SUCH TIME PERIOD SHALL BE STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SUBDI- VISION TWO OF SECTION 245.70 OF THIS ARTICLE; BUT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE AND SUBJECT TO THE CONTINUING DUTY TO DISCLOSE IN SECTION 245.60 OF THIS ARTICLE. 5. STAY OF AUTOMATIC DISCOVERY; REMEDIES AND SANCTIONS. SECTION 245.10 AND SUBDIVISIONS ONE, TWO, THREE AND FOUR OF THIS SECTION SHALL HAVE THE FORCE AND EFFECT OF A COURT ORDER, AND FAILURE TO PROVIDE DISCOVERY PURSUANT TO SUCH SECTION OR SUBDIVISION MAY RESULT IN APPLICATION OF ANY REMEDIES OR SANCTIONS PERMITTED FOR NON-COMPLIANCE WITH A COURT ORDER UNDER SECTION 245.80 OF THIS ARTICLE. HOWEVER, IF IN THE JUDGMENT OF EITHER PARTY GOOD CAUSE EXISTS FOR DECLINING TO MAKE ANY OF THE DISCLO- SURES SET FORTH ABOVE, SUCH PARTY MAY MOVE FOR A PROTECTIVE ORDER PURSU- ANT 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 NON-DISCOVERABLE PARTS HAVE BEEN WITHHELD. 6. REDACTIONS PERMITTED. EITHER PARTY MAY REDACT SOCIAL SECURITY NUMBERS AND TAX NUMBERS FROM DISCLOSURES UNDER THIS ARTICLE. § 245.25 DISCLOSURE PRIOR TO GUILTY PLEA DEADLINE. 1. PRE-INDICTMENT GUILTY PLEAS. UPON A FELONY COMPLAINT, WHERE THE PROSECUTION HAS MADE A PRE-INDICTMENT GUILTY PLEA OFFER REQUIRING A PLEA TO A CRIME, THE DEFENDANT SHALL HAVE THE RIGHT UPON TIMELY REQUEST AND REASONABLE NOTICE TO THE PROSECUTION TO INSPECT ANY AVAILABLE POLICE OR OTHER LAW ENFORCEMENT AGENCY REPORT OF A FACTUAL NATURE REGARDING THE ARREST OR INVESTIGATION OF THE CHARGES, AND/OR ANY DESIGNATED AND AVAIL- ABLE ITEMS OR INFORMATION THAT COULD BE OF MATERIAL IMPORTANCE TO THE DECISION ON THE GUILTY PLEA OFFER AND WOULD BE DISCOVERABLE PRIOR TO TRIAL UNDER SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE. THE PROS- ECUTION SHALL DISCLOSE THE REQUESTED AND DESIGNATED ITEMS OR INFORMA- TION, AS WELL AS ANY KNOWN INFORMATION THAT TENDS TO BE EXCULPATORY OR TO SUPPORT A DEFENSE TO A CHARGED OFFENSE, NOT LESS THAN THREE CALENDAR DAYS PRIOR TO THE EXPIRATION DATE OF ANY GUILTY PLEA OFFER BY THE PROSE- CUTION OR ANY DEADLINE IMPOSED BY THE COURT FOR ACCEPTANCE OF A NEGOTI- ATED GUILTY PLEA OFFER. IF THE PROSECUTION DOES NOT COMPLY WITH A PROP- ER REQUEST MADE PURSUANT TO THIS SUBDIVISION, THE COURT MAY TAKE APPROPRIATE ACTION AS NECESSARY TO ADDRESS THE NON-COMPLIANCE, INCLUDING ALLOWING A GUILTY PLEA TO THE ORIGINAL GUILTY PLEA OFFER NOTWITHSTANDING OTHER PROVISIONS OF THIS CHAPTER. THE INSPECTION RIGHTS UNDER THIS SUBDIVISION DO NOT APPLY TO ITEMS OR INFORMATION THAT ARE THE SUBJECT OF A PROTECTIVE ORDER UNDER SECTION 245.70 OF THIS ARTICLE; BUT IF SUCH INFORMATION TENDS TO BE EXCULPATORY, THE COURT SHALL RECONSIDER THE A. 4360--A 7 PROTECTIVE ORDER. THE COURT MAY DENY AN INSPECTION RIGHT UNDER THIS SUBDIVISION WHEN A REASONABLE PERSON IN THE DEFENDANT'S POSITION WOULD NOT CONSIDER THE REQUESTED AND DESIGNATED ITEM OR INFORMATION TO BE OF MATERIAL IMPORTANCE TO THE DECISION ON THE GUILTY PLEA OFFER. A DEFEND- ANT MAY WAIVE HIS OR HER RIGHTS UNDER THIS SUBDIVISION; BUT A GUILTY PLEA OFFER MAY NOT BE CONDITIONED ON SUCH WAIVER. 2. OTHER GUILTY PLEAS. UPON AN INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFORMATION, SIMPLIFIED INFORMATION, OR MISDEMEANOR COMPLAINT, WHERE THE PROSECUTION HAS MADE A GUILTY PLEA OFFER REQUIRING A PLEA TO A CRIME, THE DEFENDANT SHALL HAVE THE RIGHT UPON TIMELY REQUEST AND REASONABLE NOTICE TO THE PROSECUTION TO INSPECT ANY AVAILABLE POLICE OR OTHER LAW ENFORCEMENT AGENCY REPORT OF A FACTUAL NATURE REGARDING THE ARREST OR INVESTIGATION OF THE CHARGES, AND/OR ANY DESIGNATED AND AVAILABLE ITEMS OR INFORMATION THAT COULD BE OF MATERIAL IMPORTANCE TO THE DECISION ON THE GUILTY PLEA OFFER AND WOULD BE DISCOV- ERABLE PRIOR TO TRIAL UNDER SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE. THE PROSECUTION SHALL DISCLOSE THE REQUESTED AND DESIGNATED ITEMS OR INFORMATION, AS WELL AS ANY KNOWN INFORMATION THAT TENDS TO BE EXCULPATORY OR TO SUPPORT A DEFENSE TO A CHARGED OFFENSE, NOT LESS THAN SEVEN CALENDAR DAYS PRIOR TO THE EXPIRATION DATE OF ANY GUILTY PLEA OFFER BY THE PROSECUTION OR ANY DEADLINE IMPOSED BY THE COURT FOR A GUILTY PLEA. IF THE PROSECUTION DOES NOT COMPLY WITH A PROPER REQUEST MADE PURSUANT TO THIS SUBDIVISION, THE GUILTY PLEA OFFER MAY BE DEEMED AVAILABLE TO THE DEFENDANT UNTIL SEVEN CALENDAR DAYS AFTER THE PROSE- CUTION HAS MADE THE DISCLOSURE OR THE COURT MAY TAKE OTHER APPROPRIATE ACTION AS NECESSARY TO ADDRESS THE NON-COMPLIANCE. THE INSPECTION RIGHTS UNDER THIS SUBDIVISION DO NOT APPLY TO ITEMS OR INFORMATION THAT ARE THE SUBJECT OF A PROTECTIVE ORDER UNDER SECTION 245.70 OF THIS ARTICLE; BUT IF SUCH INFORMATION TENDS TO BE EXCULPATORY, THE COURT SHALL RECONSIDER THE PROTECTIVE ORDER. THE COURT MAY DENY AN INSPECTION RIGHT UNDER THIS SUBDIVISION WHEN A REASONABLE PERSON IN THE DEFENDANT'S POSITION WOULD NOT CONSIDER THE REQUESTED AND DESIGNATED ITEM OR INFORMATION TO BE OF MATERIAL IMPORTANCE TO THE DECISION ON THE GUILTY PLEA OFFER. A DEFEND- ANT MAY WAIVE HIS OR HER RIGHTS UNDER THIS SUBDIVISION, BUT A GUILTY PLEA OFFER MAY NOT BE CONDITIONED ON SUCH WAIVER. § 245.30 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 SIGNIFICANT 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 SUCH CRIME SCENE OR PREM- ISES, 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 PREM- A. 4360--A 8 ISES WILL CREATE SIGNIFICANT HARDSHIP, ON CONDITION THAT THE PROBATIVE VALUE OF SUCH 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 AND IS REASONABLY LIKELY TO BE MATERIAL. A MOTION UNDER THIS SUBDI- VISION 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, MODIFY OR VACATE THE ORDER IF COMPLIANCE WOULD BE UNREASONABLE OR WILL CREATE SIGNIFICANT HARDSHIP. 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 ON THE RECORD EX PARTE OR IN CAMERA. ANY SUCH PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY MAY BE SEALED AND SHALL CONSTITUTE A PART OF THE RECORD ON APPEAL. § 245.35 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 (K) 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 INFORMATION TO THE DEFENDANT; AND/OR 4. REQUIRING OTHER MEASURES OR PROCEEDINGS DESIGNED TO CARRY INTO EFFECT THE GOALS OF THIS ARTICLE. § 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 COMMITTED THE CRIME, A CLEAR INDICATION THAT RELEVANT MATERIAL EVIDENCE WILL BE FOUND, AND THAT THE METHOD USED TO SECURE SUCH EVIDENCE 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 A. 4360--A 9 (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 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 245.70 OF THIS ARTICLE. § 245.45 DNA COMPARISON ORDER. WHERE PROPERTY IN THE PROSECUTION'S POSSESSION, CUSTODY, OR CONTROL CONSISTS OF A DEOXYRIBONUCLEIC ACID ("DNA") PROFILE OBTAINED FROM PROBATIVE BIOLOGICAL MATERIAL GATHERED IN CONNECTION WITH THE INVESTI- GATION OF THE CRIME, OR THE DEFENDANT, OR THE PROSECUTION OF THE DEFEND- ANT, AND THE DEFENDANT ESTABLISHES (A) THAT SUCH PROFILE COMPLIES WITH FEDERAL BUREAU OF INVESTIGATION OR STATE REQUIREMENTS, WHICHEVER ARE APPLICABLE AND AS SUCH REQUIREMENTS ARE APPLIED TO LAW ENFORCEMENT AGEN- CIES SEEKING A KEYBOARD SEARCH OR SIMILAR COMPARISON, AND (B) THAT THE DATA MEETS STATE DNA INDEX SYSTEM OR NATIONAL DNA INDEX SYSTEM CRITERIA AS SUCH CRITERIA ARE APPLIED TO LAW ENFORCEMENT AGENCIES SEEKING SUCH A KEYBOARD SEARCH OR SIMILAR COMPARISON, THE COURT MAY, UPON MOTION OF A DEFENDANT AGAINST WHOM AN INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFORMATION, OR SIMPLIFIED INFORMATION IS PENDING, 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 SECTION, A "KEYBOARD SEARCH" SHALL MEAN A SEARCH OF A DNA PROFILE AGAINST THE DATABANK IN WHICH THE PROFILE THAT IS SEARCHED IS NOT UPLOADED TO OR MAINTAINED IN THE DATABANK. § 245.50 CERTIFICATES OF COMPLIANCE. 1. BY THE PROSECUTION. WHEN THE PROSECUTION HAS PROVIDED THE DISCOVERY REQUIRED BY SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE, EXCEPT FOR ANY ITEMS OR INFORMATION THAT ARE THE SUBJECT OF AN ORDER PURSUANT TO SECTION 245.70 OF THIS ARTICLE, IT SHALL SERVE UPON THE DEFENDANT AND FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE. THE CERTIFICATE OF COMPLIANCE SHALL STATE THAT, AFTER EXERCISING DUE DILIGENCE AND MAKING REASONABLE INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL AND INFOR- MATION 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 245.60 OF THIS ARTICLE, A SUPPLEMENTAL CERTIFICATE SHALL BE SERVED UPON THE DEFENDANT AND FILED WITH THE COURT IDENTIFYING THE ADDITIONAL MATERIAL AND INFOR- MATION PROVIDED. NO ADVERSE CONSEQUENCE TO THE PROSECUTION OR THE PROSE- CUTOR SHALL RESULT FROM THE FILING OF A CERTIFICATE OF COMPLIANCE IN GOOD FAITH; BUT THE COURT MAY GRANT A REMEDY OR SANCTION FOR A DISCOV- ERY VIOLATION AS PROVIDED IN SECTION 245.80 OF THIS ARTICLE. 2. BY THE DEFENDANT. WHEN THE DEFENDANT HAS PROVIDED ALL DISCOVERY REQUIRED BY SUBDIVISION FOUR OF SECTION 245.20 OF THIS ARTICLE, EXCEPT FOR ANY ITEMS OR INFORMATION THAT ARE THE SUBJECT OF AN ORDER PURSUANT TO SECTION 245.70 OF THIS ARTICLE, COUNSEL FOR THE DEFENDANT SHALL SERVE A. 4360--A 10 UPON THE PROSECUTION AND FILE WITH THE COURT A CERTIFICATE OF COMPLI- ANCE. THE CERTIFICATE SHALL STATE THAT, AFTER EXERCISING DUE DILIGENCE AND MAKING REASONABLE INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL AND INFORMATION 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 245.60 OF THIS ARTICLE, A SUPPLEMENTAL CERTIFICATE SHALL BE SERVED UPON THE PROSECUTION AND FILED WITH THE COURT IDENTIFYING THE ADDITIONAL MATERIAL AND INFORMATION PROVIDED. NO ADVERSE CONSEQUENCE TO THE DEFENDANT OR COUNSEL FOR THE DEFENDANT SHALL RESULT FROM THE FILING OF A CERTIFICATE OF COMPLIANCE IN GOOD FAITH; BUT THE COURT MAY GRANT A REME- DY OR SANCTION FOR A DISCOVERY VIOLATION AS PROVIDED IN SECTION 245.80 OF THIS ARTICLE. § 245.55 FLOW OF INFORMATION. 1. SUFFICIENT COMMUNICATION FOR COMPLIANCE. THE DISTRICT ATTORNEY AND THE ASSISTANT RESPONSIBLE FOR THE CASE, OR, IF THE MATTER IS NOT BEING PROSECUTED BY THE DISTRICT ATTORNEY, THE PROSECUTING AGENCY AND ITS ASSIGNED REPRESENTATIVE, SHALL ENDEAVOR TO ENSURE THAT A FLOW OF INFOR- MATION IS MAINTAINED BETWEEN THE POLICE AND OTHER INVESTIGATIVE PERSON- NEL 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, INCLUDING, BUT NOT LIMIT- ED TO, ANY EVIDENCE OR INFORMATION DISCOVERABLE UNDER PARAGRAPH (K) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE. 2. PROVISION OF LAW ENFORCEMENT AGENCY FILES. ABSENT A COURT ORDER OR CLEAR SECURITY REQUIREMENT, UPON REQUEST BY THE PROSECUTION, A NEW YORK STATE LAW ENFORCEMENT AGENCY SHALL MAKE AVAILABLE 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 ARTI- CLE. 3. 911 TELEPHONE CALL AND POLICE RADIO TRANSMISSION ELECTRONIC RECORDINGS, POLICE WORN BODY CAMERA RECORDINGS AND OTHER POLICE RECORDINGS. (A) WHENEVER AN ELECTRONIC RECORDING OF A 911 TELEPHONE CALL OR A POLICE RADIO TRANSMISSION OR VIDEO OR AUDIO FOOTAGE FROM A POLICE BODY-WORN CAMERA OR OTHER POLICE RECORDING WAS MADE OR RECEIVED IN CONNECTION WITH THE INVESTIGATION 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 EXPE- DITIOUSLY TAKE WHATEVER REASONABLE STEPS ARE NECESSARY TO ENSURE THAT ALL KNOWN ELECTRONIC RECORDINGS OF 911 TELEPHONE CALLS, POLICE RADIO TRANSMISSIONS AND VIDEO AND AUDIO FOOTAGE AND OTHER POLICE RECORDINGS MADE OR AVAILABLE IN CONNECTION WITH THE CASE ARE PRESERVED THROUGHOUT THE PENDENCY OF THE CASE. UPON THE DEFENDANT'S TIMELY REQUEST AND DESIG- NATION OF A SPECIFIC ELECTRONIC RECORDING OF A 911 TELEPHONE CALL, THE PROSECUTION SHALL ALSO EXPEDITIOUSLY 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 (E), (G) OR (K) 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 PROSE- CUTION PERSONNEL, THE COURT UPON MOTION OF THE DEFENDANT SHALL IMPOSE AN APPROPRIATE REMEDY OR SANCTION PURSUANT TO SECTION 245.80 OF THIS ARTI- CLE. A. 4360--A 11 § 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 FOUR OF SECTION 245.20 OF THIS ARTICLE. § 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. § 245.70 PROTECTIVE ORDERS. 1. ANY DISCOVERY SUBJECT TO PROTECTIVE ORDER. UPON A SHOWING OF GOOD CAUSE BY EITHER PARTY, THE COURT MAY AT ANY TIME ORDER THAT DISCOVERY OR INSPECTION OF ANY KIND OF MATERIAL OR INFORMATION UNDER THIS ARTICLE BE DENIED, RESTRICTED, CONDITIONED OR DEFERRED, OR MAKE SUCH OTHER ORDER AS IS 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; OR, ALTERNATIVELY, THAT COUNSEL FOR THE DEFENDANT, AND PERSONS EMPLOYED BY THE ATTORNEY OR APPOINTED BY THE COURT TO ASSIST IN THE PREPARATION OF A DEFENDANT'S CASE, MAY NOT DISCLOSE PHYSICAL COPIES OF THE DISCOVERABLE DOCUMENTS TO A DEFENDANT OR TO ANYONE ELSE, PROVIDED THAT THE PROSECUTION AFFORDS THE DEFENDANT ACCESS TO INSPECT REDACTED COPIES OF THE DISCOVERABLE DOCUMENTS AT A SUPERVISED LOCATION THAT PROVIDES REGULAR AND REASONABLE HOURS FOR SUCH ACCESS, SUCH AS A PROSECUTOR'S OFFICE, POLICE STATION, FACILITY OF DETENTION, OR COURT. THE COURT MAY PERMIT A PARTY SEEKING OR OPPOSING A PROTECTIVE ORDER UNDER THIS SECTION, OR ANOTHER AFFECTED PERSON, TO SUBMIT PAPERS OR TESTIFY ON THE RECORD EX PARTE OR IN CAMERA. ANY SUCH PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY MAY 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. PROMPT HEARING. UPON REQUEST FOR A PROTECTIVE ORDER, THE COURT SHALL CONDUCT AN APPROPRIATE HEARING WITHIN THREE BUSINESS DAYS TO DETERMINE WHETHER GOOD CAUSE HAS BEEN SHOWN AND WHEN PRACTICABLE SHALL RENDER DECISION EXPEDITIOUSLY. ANY MATERIALS SUBMITTED AND A TRANSCRIPT OF THE PROCEEDING MAY BE SEALED AND SHALL CONSTITUTE A PART OF THE RECORD ON APPEAL. 4. SHOWING OF GOOD CAUSE. GOOD CAUSE UNDER THIS SECTION MAY INCLUDE: CONSTITUTIONAL RIGHTS OR LIMITATIONS; DANGER TO THE INTEGRITY OF PHYS- ICAL 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 CONFIDENTIAL- A. 4360--A 12 ITY 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 ALSO OUTWEIGH THE USEFULNESS OF THE DISCOVERY. 5. SUCCESSOR COUNSEL OR PRO SE DEFENDANT. IN CASES IN WHICH THE ATTOR- NEY-CLIENT RELATIONSHIP IS TERMINATED PRIOR TO TRIAL FOR ANY REASON, ANY MATERIAL OR INFORMATION DISCLOSED SUBJECT TO A CONDITION THAT IT BE AVAILABLE ONLY TO COUNSEL FOR THE DEFENDANT, OR LIMITED IN DISSEMINATION BY PROTECTIVE ORDER OR OTHERWISE, SHALL BE PROVIDED ONLY TO SUCCESSOR COUNSEL FOR THE DEFENDANT UNDER THE SAME CONDITION OR CONDITIONS OR BE RETURNED TO THE PROSECUTION, UNLESS THE COURT RULES OTHERWISE FOR GOOD CAUSE SHOWN OR THE PROSECUTOR GIVES WRITTEN CONSENT. ANY WORK PRODUCT DERIVED FROM SUCH MATERIAL OR INFORMATION SHALL NOT BE PROVIDED TO THE DEFENDANT, UNLESS THE COURT RULES OTHERWISE OR THE PROSECUTOR GIVES WRITTEN CONSENT. IF THE DEFENDANT IS ACTING AS HIS OR HER OWN ATTORNEY, THE COURT MAY REGULATE THE TIME, PLACE AND MANNER OF ACCESS TO ANY DISCOVERABLE MATERIAL OR INFORMATION; AND IT MAY AS APPROPRIATE APPOINT PERSONS TO ASSIST THE DEFENDANT IN THE INVESTIGATION OR PREPARATION OF THE CASE. UPON MOTION OR APPLICATION OF A DEFENDANT ACTING AS HIS OR HER OWN ATTORNEY, THE COURT MAY AT ANY TIME MODIFY OR VACATE ANY CONDITION OR RESTRICTION RELATING TO ACCESS TO DISCOVERABLE MATERIAL OR INFORMA- TION, FOR GOOD CAUSE SHOWN. 6. EXPEDITED REVIEW OF ADVERSE RULING. (A) A PARTY THAT HAS UNSUCCESS- FULLY SOUGHT, OR UNSUCCESSFULLY OPPOSED THE GRANTING OF, A PROTECTIVE ORDER UNDER THIS SECTION RELATING TO THE NAME, ADDRESS, CONTACT INFORMA- TION OR STATEMENTS OF A PERSON MAY OBTAIN EXPEDITED REVIEW OF THAT RULING BY AN INDIVIDUAL JUSTICE OF THE INTERMEDIATE APPELLATE COURT TO WHICH AN APPEAL FROM A JUDGMENT OF CONVICTION IN THE CASE WOULD BE TAKEN. (B) SUCH REVIEW SHALL BE SOUGHT WITHIN TWO BUSINESS DAYS OF THE ADVERSE OR PARTIALLY ADVERSE RULING, BY ORDER TO SHOW CAUSE FILED WITH THE INTERMEDIATE APPELLATE COURT. THE ORDER TO SHOW CAUSE SHALL IN ADDI- TION BE TIMELY SERVED ON THE LOWER COURT AND ON THE OPPOSING PARTY, AND SHALL BE ACCOMPANIED BY A SWORN AFFIRMATION STATING IN GOOD FAITH (I) THAT THE RULING AFFECTS SUBSTANTIAL INTERESTS, AND (II) THAT DILIGENT EFFORTS TO REACH AN ACCOMMODATION OF THE UNDERLYING DISCOVERY DISPUTE WITH OPPOSING COUNSEL FAILED OR THAT NO ACCOMMODATION WAS FEASIBLE; EXCEPT THAT SERVICE ON THE OPPOSING PARTY, AND A STATEMENT REGARDING EFFORTS TO REACH AN ACCOMMODATION, ARE UNNECESSARY WHERE THE OPPOSING PARTY WAS NOT MADE AWARE OF THE APPLICATION FOR A PROTECTIVE ORDER AND GOOD CAUSE EXISTS FOR OMITTING SERVICE OF THE ORDER TO SHOW CAUSE ON THE OPPOSING PARTY. THE LOWER COURT'S ORDER SUBJECT TO REVIEW SHALL BE STAYED UNTIL THE APPELLATE JUSTICE RENDERS DECISION. (C) THE ASSIGNMENT OF THE INDIVIDUAL APPELLATE JUSTICE, AND THE MODE OF AND PROCEDURE FOR THE REVIEW, ARE DETERMINED BY RULES OF THE INDIVID- UAL APPELLATE COURTS. THE APPELLATE JUSTICE MAY CONSIDER ANY RELEVANT AND RELIABLE INFORMATION BEARING ON THE ISSUE, AND MAY DISPENSE WITH WRITTEN BRIEFS OTHER THAN SUPPORTING AND OPPOSING MATERIALS PREVIOUSLY SUBMITTED TO THE LOWER COURT. THE APPELLATE JUSTICE MAY DISPENSE WITH THE ISSUANCE OF A WRITTEN OPINION IN RENDERING HIS OR HER DECISION, AND WHEN PRACTICABLE SHALL RENDER DECISION EXPEDITIOUSLY. SUCH REVIEW AND DECISION SHALL NOT AFFECT THE RIGHT OF A DEFENDANT, IN A SUBSEQUENT APPEAL FROM A JUDGMENT OF CONVICTION, TO CLAIM AS ERROR THE RULING REVIEWED. A. 4360--A 13 7. COMPLIANCE WITH PROTECTIVE ORDER. ANY PROTECTIVE ORDER ISSUED UNDER THIS ARTICLE IS A MANDATE OF THE COURT FOR PURPOSES OF THE OFFENSE OF CRIMINAL CONTEMPT IN SUBDIVISION THREE OF SECTION 215.50 OF THE PENAL LAW. § 245.75 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, OR EXPEDITIOUSLY THEREAFTER BUT BEFORE RECEIVING DISCOVERY FROM THE PROSE- CUTION PURSUANT TO SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE, AND THE DEFENDANT NEED NOT PROVIDE DISCOVERY TO THE PROSECUTION PURSUANT TO SUBDIVISION FOUR OF SECTION 245.20 AND SECTION 245.60 OF THIS ARTI- CLE. A WAIVER SHALL BE IN WRITING AND SIGNED BY THE DEFENDANT AND COUN- SEL 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. THE PROSECUTION MAY NOT CONDITION A GUILTY PLEA OFFER ON THE DEFENDANT'S EXECUTION OF A WAIVER UNDER THIS SECTION. § 245.80 REMEDIES OR SANCTIONS FOR NON-COMPLIANCE. 1. NEED FOR REMEDY OR SANCTION. (A) WHEN MATERIAL OR INFORMATION IS DISCOVERABLE UNDER THIS ARTICLE BUT IS DISCLOSED BELATEDLY, THE COURT SHALL IMPOSE AN APPROPRIATE REMEDY OR SANCTION IF THE PARTY ENTITLED TO DISCLOSURE SHOWS THAT IT WAS PREJUDICED. REGARDLESS OF A SHOWING OF PREJUDICE 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 OR SANCTION IF 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. 2. AVAILABLE REMEDIES OR SANCTIONS. 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 NON-COMPLIANCE, 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 NON-DISCLOSURE 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 A. 4360--A 14 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. § 245.85 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. § 3. Subdivision 3 of section 610.20 of the criminal procedure law is amended and a new subdivision 4 is added to read as follows: 3. An attorney for a defendant in a criminal action or proceeding, as an officer of a criminal court, may issue a subpoena of such court, subscribed by himself, for the attendance in such court of any witness whom the defendant is entitled to call in such action or proceeding. An attorney for a defendant may not issue a subpoena duces tecum of the court directed to any department, bureau or agency of the state or of a political subdivision thereof, or to any officer or representative ther- eof, UNLESS THE SUBPOENA IS ENDORSED BY THE COURT AND PROVIDES AT LEAST THREE DAYS FOR THE PRODUCTION OF THE REQUESTED MATERIALS. IN THE CASE OF AN EMERGENCY, THE COURT MAY BY ORDER DISPENSE WITH THE THREE-DAY PRODUCTION PERIOD. Such a subpoena duces tecum may be issued in behalf of a defendant upon order of a court pursuant to the rules applicable to civil cases as provided in section twenty-three hundred seven of the civil practice law and rules. 4. THE SHOWING REQUIRED TO SUSTAIN ANY SUBPOENA UNDER THIS SECTION IS THAT THE TESTIMONY OR EVIDENCE SOUGHT IS REASONABLY LIKELY TO BE RELE- VANT AND MATERIAL TO THE PROCEEDINGS, AND THE SUBPOENA IS NOT OVERBROAD OR UNREASONABLY BURDENSOME. § 4. 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, 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: § 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 A. 4360--A 15 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 conducted pursuant to subdivision [five] SIX 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 statutory 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 A. 4360--A 16 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] FOUR 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. (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. A. 4360--A 17 (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 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. § 5. 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] SECTION 245.80 OF THIS PART. A. 4360--A 18 § 6. 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 § 7. Subdivision 1 of section 255.20 of the Criminal procedure law, as amended by chapter 369 of the laws of 1982, is amended to read as follows: 1. Except as otherwise expressly provided by law, whether the defend- ant is represented by counsel or elects to proceed pro se, all pre-trial motions shall be served or filed within forty-five days after arraign- ment and before commencement of trial, or within such additional time as the court may fix upon application of the defendant made prior to entry of judgment. In an action in which EITHER (A) MATERIAL OR INFORMATION HAS BEEN DISCLOSED PURSUANT TO PARAGRAPH (M) OR (N) OF SUBDIVISION ONE OF SECTION 245.20, (B) an eavesdropping warrant and application have been furnished pursuant to section 700.70, or (C) a notice of intention to introduce evidence has been served pursuant to section 710.30, such period shall be extended until forty-five days after the last date of such service. If the defendant is not represented by counsel and has requested an adjournment to obtain counsel or to have counsel assigned, such forty-five day period shall commence on the date counsel initially appears on defendant's behalf. § 8. Section 340.30 of the criminal procedure law is amended to read as follows: § 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. § 9. 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 245.80 OF THIS PART 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. A. 4360--A 19 (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] 245.80 OF THIS PART. § 10. 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 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: § 11. 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 set forth in subdivision one of section [240.70] 245.80 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, photo- graphs, photocopies, or other reproductions of the property or, where appropriate, testimony concerning its value and condition, where such evidence is otherwise properly authenticated and admissible 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. § 12. Section 460.80 of the penal law, as added by chapter 516 of the laws of 1986, is amended to read as follows: § 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 discov- ery of any property not otherwise disclosed which is material and reasonably necessary for preparation by the defendant with respect to the forfeiture proceeding pursuant to such section. The court may issue A. 4360--A 20 a protective order denying, limiting, conditioning, delaying or regulat- ing 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 enforcement, including the protection of the confidentiality of informants, or any other factor or set of factors outweighs the usefulness of the discovery. § 13. 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] 245.70 of the criminal procedure law with respect to any information required to be disclosed pursuant to this subdivision. § 14. 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 four of this act shall not affect the repeal of such section and shall be deemed repealed there- with.
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