S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5005
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               March 3, 2017
                                ___________
 
 Introduced  by  Sens.  BAILEY, PARKER -- read twice and ordered printed,
   and when printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law,  in  relation  to  discovery
   requirements  and  procedures and to repeal certain provisions of such
   law relating thereto

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Article 240 of the criminal procedure law is REPEALED and a
 new article 240 is added to read as follows:
                                ARTICLE 240
              AUTOMATIC DISCOVERY PROCEDURE AND REQUIREMENTS
 SECTION 240.10 AUTOMATIC DISCOVERY.
         240.20 RECIPROCAL DISCOVERY.
         240.30 DEPOSITIONS.
         240.35 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
         240.40 PRESERVATION OF EVIDENCE.
         240.43 DISCRETIONARY DISCOVERY BY ORDER OF THE COURT.
         240.44 CERTIFICATES OF COMPLIANCE.
         240.45 CONTINUING DUTY TO DISCLOSE.
         240.50 PROTECTIVE ORDERS.
         240.60 REMEDIES  AND SANCTIONS FOR NONCOMPLIANCE WITH THIS ARTI-
                 CLE.
         240.70 LOST OR DESTROYED MATERIALS.
 § 240.10 AUTOMATIC DISCOVERY.
   THE PROSECUTION IS HEREBY  REQUIRED  TO  PROVIDE  DISCOVERY  MATERIALS
 WITHOUT  A  MOTION  BY DEFENSE BEFORE OR AT ARRAIGNMENT. THE PROSECUTION
 SHALL DISCLOSE TO THE DEFENDANT, AND PERMIT THE DEFENDANT  TO  DISCOVER,
 INSPECT,   COPY  OR  PHOTOGRAPH,  ALL  ITEMS  AND  INFORMATION  WHEN  IN
 POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR PERSONS  UNDER  THE
 PROSECUTION'S DIRECTION OR CONTROL INCLUDING BUT NOT LIMITED TO:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03405-01-7
              

 S. 5005                             2
 
   1.  WITNESS  CONTACT  INFORMATION  AND ALL WRITTEN AND RECORDED STATE-
 MENTS, AND THE SUBSTANCE OF ALL ORAL STATEMENTS. THE  PROBATION  DEPART-
 MENT   IS  REQUIRED  TO  PROVIDE  THE  PARTIES  WITH  A  RECORD  OF  ALL
 CONVICTIONS, COMPLAINTS, AND INDICTMENTS AGAINST ALL OF THE  PROSPECTIVE
 PROSECUTION  WITNESSES AND ALL DEFENDANTS WITHIN FIVE DAYS OF THE PROSE-
 CUTION'S DISCLOSURE  OF  ITS  WITNESSES'  NAMES  AND  ADDRESSES  TO  THE
 DEFENSE.
   2.  ALL  TRANSCRIPTS  OF  THE  TESTIMONY OF A PERSON WHO HAS TESTIFIED
 BEFORE ANY GRAND JURY WHEN THE TESTIMONY RELATES TO THE  SUBJECT  MATTER
 OF THE CASE.
   3.  IDENTIFICATION  INFORMATION  OF ALL LAW ENFORCEMENT PERSONNEL WHOM
 THE PROSECUTOR KNOWS TO HAVE EVIDENCE OR  INFORMATION  RELEVANT  TO  ANY
 OFFENSE CHARGED OR TO A POTENTIAL DEFENSE THERETO.
   4. STATEMENTS OF IDENTIFICATION PROCEDURES.
   5. ALL TANGIBLE OBJECTS AND EXHIBITS.
   6. ALL DEFENDANTS' STATEMENTS.
   7.  ALL  EXCULPATORY  FACTS  IN  POSSESSION  OF  THE PROSECUTION OR OF
 PERSONS UNDER THE PROSECUTION'S DIRECTION OR WHO INVESTIGATED THE  CASE;
 NOT LIMITED TO "MATERIALLY EXCULPATORY" EVIDENCE.
   8.  ALL  STATEMENTS  WRITTEN  OR  RECORDED WHICH RELATE TO THE SUBJECT
 MATTER.
   9. INTENDED EXPERT OPINION INCLUDING ALL CONTACT INFORMATION, PUBLICA-
 TIONS OF INTENDED WITNESS, AND  REPORTS  PREPARED  BY  THE  EXPERT  THAT
 PERTAIN TO THE CASE.
   10.  SUMMARY OF ALL CORPOREAL OR NON-CORPOREAL OR VOICE IDENTIFICATION
 PROCEDURES.
   11. SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE  TO  PERSONS
 WHO MAY BE CALLED AS WITNESSES.
   12.  WHETHER  THE PROSECUTION HAS ANY EVIDENCE OR INFORMATION THAT MAY
 HAVE BEEN PROVIDED BY A CONFIDENTIAL OR JAILHOUSE INFORMANT.
   13. WHETHER A SEARCH WARRANT HAS BEEN  EXECUTED  AND  ALL  INFORMATION
 RELATING THERETO.
   14. WHETHER THERE HAS BEEN ANY ELECTRONIC SURVEILLANCE.
 § 240.20 RECIPROCAL DISCOVERY.
   THE  DEFENSE,  SUBJECT  TO  CONSTITUTIONAL LIMITATIONS, HAS RECIPROCAL
 DISCOVERY OBLIGATIONS AFTER IT RECEIVES THE PROSECUTOR'S DISCOVERY PACK-
 AGE. THE DEFENSE MUST DISCLOSE ALL RELEVANT MATERIAL EVIDENCE WITHIN THE
 DEFENDANT'S POSSESSION INCLUDING THE NAMES, ADDRESSES,  DATES  OF  BIRTH
 AND STATEMENTS BY INDIVIDUALS WHOM THE DEFENSE INTENDS TO CALL AT TRIAL,
 INTENDED  EXPERT OPINION EVIDENCE, PHOTOGRAPHS, TANGIBLE OBJECTS, EXHIB-
 ITS, SCIENTIFIC TEST REPORTS; AND INFORMATION REGARDING ANY  INDUCEMENTS
 OR PROMISES TO ANY WITNESS.
 § 240.30 DEPOSITIONS.
   ANY  TIME  AFTER  THE FILING OF AN ACCUSATORY INSTRUMENT, THE COURT IN
 ITS DISCRETION MAY, UPON MOTION OF ANY PARTY, ORDER THE  EXAMINATION  OF
 ANY  PERSON EXCEPT THE DEFENDANT UPON ORAL DEPOSITION IF THE PARTY SHOWS
 THAT THE PERSON'S TESTIMONY IS MATERIAL TO  THE  CASE  OR  NECESSARY  TO
 ADEQUATELY PREPARE A DEFENSE.
 § 240.35 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
   AFTER THE FILING OF AN ACCUSATORY INSTRUMENT, AND SUBJECT TO CONSTITU-
 TIONAL  LIMITATIONS, THE COURT MAY, UPON MOTION BY THE PROSECUTION SHOW-
 ING PROBABLE CAUSE TO BELIEVE THE DEFENDANT HAS COMMITTED THE  CRIME,  A
 CLEAR INDICATION THAT RELEVANT MATERIAL EVIDENCE WILL BE FOUND, AND THAT
 THE  METHOD  USED TO SECURE IT IS SAFE AND RELIABLE, REQUIRE A DEFENDANT
 TO PROVIDE NON-TESTIMONIAL EVIDENCE, INCLUDING TO APPEAR IN A LINEUP AND
 OTHER EVIDENCE.

 S. 5005                             3
 
 § 240.40 PRESERVATION OF EVIDENCE.
   EVIDENTIARY  MATERIALS ARE REQUIRED TO BE MAINTAINED IN THEIR ORIGINAL
 CONDITION AND SHALL INCLUDE BUT NOT BE LIMITED TO:
   1. VIDEOTAPE OF INTERVIEWS AT THE POLICE STATION OR OTHER  FACILITIES:
 NO  ORAL, WRITTEN OR SIGN LANGUAGE STATEMENT OF A SUSPECT MADE DURING AN
 INTERVIEW SHALL BE  ADMISSIBLE  AS  SUBSTANTIVE  EVIDENCE  AGAINST  THAT
 PERSON  IN ANY CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING, WHICH
 MUST BE FOCUSED UPON BOTH THE QUESTIONER AND THE SUSPECT THROUGHOUT  AND
 MUST  INCLUDE  NOT  ONLY AUDIO BUT ALSO VISUAL RECORDING, IS MADE OF THE
 COMPLETE INTERVIEW.
   2. TELEPHONE CALLS AND POLICE  RADIO  TRANSMISSIONS:  WHEN  ELECTRONIC
 RECORDINGS OF 911 TELEPHONE CALLS OR POLICE RADIO TRANSMISSIONS ARE MADE
 IN  CONNECTION  WITH  AN  INVESTIGATION,  THE  ARRESTING OFFICER OR LEAD
 DETECTIVE MUST EXPEDITIOUSLY NOTIFY THE PROSECUTION IN  WRITING  OF  THE
 EXISTENCE OF ALL RECORDINGS.
   3.  MATERIAL POSSESSED BY OTHER GOVERNMENT PERSONNEL OR THIRD PARTIES:
 THE PROSECUTION IS REQUIRED TO NOTIFY THE DEFENSE WHENEVER  IT  RECEIVES
 INFORMATION  ABOUT THE EXISTENCE OF ANY OTHERWISE DISCOVERABLE ITEM THAT
 IS NOT WITHIN THE POSSESSION, CUSTODY OR CONTROL OF LAW ENFORCEMENT, AND
 THE PARTIES CAN MOVE FOR A COURT ORDER  REQUIRING  THE  PRESERVATION  OF
 SUCH ITEMS BY A THIRD PARTY.
 § 240.43 DISCRETIONARY DISCOVERY BY ORDER OF THE COURT.
   UPON  THE  REQUEST BY THE DEFENDANT, TO THE COURT, IF THE DEFENDANT IS
 UNABLE WITHOUT UNDUE HARDSHIP TO OBTAIN THE  SUBSTANTIAL  EQUIVALENT  BY
 OTHER  MEANS,  THE  COURT  MAY ORDER THE PROSECUTION, OR ANY INDIVIDUAL,
 AGENCY OR OTHER ENTITY TO MAKE AVAILABLE FOR DISCLOSURE TO THE DEFENDANT
 ANY MATERIAL OF INFORMATION WHICH POTENTIALLY  RELATES  TO  THE  SUBJECT
 MATTER OF THE CASE OR IS OTHERWISE RELEVANT.
 § 240.44 CERTIFICATES OF COMPLIANCE.
   THE  PROSECUTION  AND  DEFENSE  MUST CERTIFY IN WRITING THAT THEY HAVE
 EXERCISED DUE DILIGENCE IN COMPLYING WITH  THEIR  DISCOVERY  OBLIGATIONS
 AND THIS CERTIFICATION MUST IDENTIFY EACH ITEM THAT WAS PROVIDED.
 § 240.45 CONTINUING DUTY TO DISCLOSE.
   IF  THE PROSECUTION OR THE DEFENDANT SUBSEQUENTLY LEARNS OF ADDITIONAL
 MATERIAL OR INFORMATION WHICH IT WOULD HAVE A DUTY TO DISCLOSE  PURSUANT
 TO ANY PROVISIONS OF THIS ARTICLE, IT SHALL IMMEDIATELY NOTIFY THE OTHER
 PARTY AND DISCLOSE THE ADDITIONAL MATERIAL OR INFORMATION AS REQUIRED BY
 THIS CHAPTER.
 § 240.50 PROTECTIVE ORDERS.
   THE   COURT   MAY  ORDER  THAT  DISCOVERY  OR  INSPECTION  BE  DENIED,
 RESTRICTED, CONDITIONED OR DEFERRED,  OR  MAY  GRANT  DISCOVERY  TO  THE
 DEFENDANT  ON THE CONDITION THAT THE MATERIAL BE AVAILABLE ONLY TO COUN-
 SEL FOR THE DEFENDANT.
 § 240.60 REMEDIES AND SANCTIONS FOR NONCOMPLIANCE WITH THIS ARTICLE.
   A RANGE OF LEGAL REMEDIES ARE AVAILABLE FOR FAILING TO COMPLY WITH ANY
 DISCOVERY ORDER ISSUED OR IMPOSED. THIS INCLUDES BUT SHALL NOT BE LIMIT-
 ED TO THE ABILITY OF THE COURT TO MAKE A  FURTHER  ORDER  OF  DISCOVERY,
 GRANT  A  CONTINUANCE,  ORDER THAT THE HEARING BE REOPENED, ORDER THAT A
 WITNESS BE CALLED OR RECALLED, ORDER A MISTRIAL  OR  DISMISSAL  OF  SOME
 CHARGES.
 § 240.70 LOST OR DESTROYED MATERIALS.
   WHEN  MATERIAL OR INFORMATION IS DISCOVERABLE, BUT CANNOT BE DISCLOSED
 BECAUSE IT HAS BEEN LOST OR DESTROYED, THE COURT SHALL IMPOSE AN  APPRO-
 PRIATE  REMEDY  OR SANCTION WHICH IS PROPORTIONATE TO THE POTENTIAL WAYS
 IN WHICH THE LOST OR DESTROYED MATERIAL COULD HAVE BEEN HELPFUL  TO  THE
 PARTY ENTITLED TO DISCLOSURE.

 S. 5005                             4

   §  2.  This  act  shall take effect on the sixtieth day after it shall
 have become a law and shall apply to all arraignments commencing  on  or
 after such effective date.