| Date of Action |
Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|---|---|
| Jan 03, 2024 |
referred to codes |
| Mar 21, 2023 |
referred to codes |
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Senate Bill S5885
2023-2024 Legislative Session
Relates to the discovery of material, non-material and impeachment information and the required time frame for such discovery
download bill text pdfSponsored By
(D) 23rd Senate District
Archive: Last Bill Status - In Senate Committee Codes Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
co-Sponsors
(D) 15th Senate District
(R, C) 57th Senate District
2023-S5885 (ACTIVE) - Details
- See Assembly Version of this Bill:
- A7033
- Current Committee:
- Senate Codes
- Law Section:
- Criminal Procedure Law
- Laws Affected:
- Amd §§30.30, 245.10, 245.20 & 255.20, CP L
2023-S5885 (ACTIVE) - Sponsor Memo
BILL NUMBER: S5885REVISED 3/27/23
SPONSOR: SCARCELLA-SPANTON
TITLE OF BILL:
An act to amend the criminal procedure law, in relation to the discovery
of material, non-material and impeachment information and the required
time frame for such discovery
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Subdivision 4 of section 30.30 of the criminal procedure law
is amended as follows:
4. In computing the time within which the people must be ready for trial
pursuant to subdivisions one and two of this section, the following
periods must be excluded:
(j) the period during which a family offense is before a family court
until such time as an accusatory instrument or indictment is filed
against the defendant alleging a crime constituting a family offense, as
such term is defined in section 530.11 of this chapter: or
(k) the period during which the prosecution performs its discovery obli- gations under subdivisions one-a and one-b of section 245.10 of this article provided that the certificates of compliance for each disclosure are filed within the period outlined in the respective subdivisions; provided, however, that delay in compliance beyond the mandated periods may be excludable as an exceptional circumstance under subdivision four-g of section 30.30 of this chapter. Section 2. Section 245.10 of the criminal procedure law is amended as follows: § 245.10 Timing of Discovery and certain pre-trial motion procedure. 1. (a) The prosecution shall perform its initial discovery obligations under subdivision one-a of section 245.20 of this article as soon as practicable but not later than thirty days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, simplified information, misdemeanor complaint or felony complaint. When the prosecution has provided the discovery required by subdivision one-a of section 245.20 of this article, it shall serve upon the defendant and file with the court a certificate of compliance pursuant to subdivision one of section 245.50. (b) Once the prosecution has filed its certificate of compliance concerning the disclosure required by subdivision one-a of section 245.20, the defense must file its pre-trial motions within 45 days of that filing. The People shall begin performance of their disclosure of discovery obligations under subdivision one-b of section 245.20 of this article after completion of their discovery, must file their response to the omnibus motion within 30 days of its receipt and must complete their disclosure of discovery obligations under subdivision one-b of section 245.20 of this article no later than the date of the filing of their omnibus motion response. Once the prosecution has provided the discovery required by subdivision one-b of section 245.20 of this article, it shall serve upon the defendant and file with the court a certificate of compliance pursuant to subdivision one of section 245.50. Upon its filing, the prosecution may file a certificate of readiness or announce readiness for trial. (c) The prosecution shall perform its discovery obligations under subdi- vision one-c of section 245.20 no later than 15 days after decision on defendant's pre-trial motions. (d) Notwithstanding the previous provisions of this section, the prosecutor's obligations shall not apply to a simplified information charging a traffic infraction under the vehicle and traffic law, or to an information charging one or more petty offenses as defined by the municipal code of a village, town, city, or county, that do not carry a statutorily authorized sentence of imprisonment, and where the defendant stands charged before the court with no crime or offense, provided however that nothing in this subparagraph shall prevent a defendant from filing a motion for disclosure of such items and information under subdivision one of section 245.20 of this article. The court shall, at the first appearance, advise the defendant of their right to file a motion for discovery. (e)(i) Portions of materials that must be disclosed under subdivisions one-a, one-b and one-c of section 245.20 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 mate- rials shall be disclosed to the extent practicable. Information related to or evidencing the identity of a 911 caller, the victim or witness of an offense defined under article one hundred thirty or sections 230.34 and 230.34-a of the penal law, or any other victim or witness of a crime where the defendant has substantiated affiliation with a criminal enter- prise as defined in subdivision three of section 460.10 of the penal law may be withheld, provided, however, the defendant may move the court for disclosure. (ii) When the discoverable materials, including video footage from body- worn cameras, surveillance cameras, or dashboard cameras, are excep- tionally voluminous or, despite diligent, good faith efforts, are other- wise not in the actual possession of the prosecution, the time period in this paragraph 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. Section 3. Subdivision 1 of section 245.20 of the criminal procedure law is amended as follows: 1. Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information in the following catego- ries of information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control, including but not limited to: (a) Material Information. (i) 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. (ii) 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; except that such disclosure shall be made as soon as practicable and not later than the end of the time period defined in paragraph (c) of subsection (1) of section 245.10 of this article, 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. (iii) 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 any potential defense thereto, including all police reports, notes of police and other investigators, 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. (iv) Intention to introduce expert opinion evidence. (v) All tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident, and a designation by the prosecutor as to which of the recordings under this paragraph the prosecution intends to introduce at trial or a pre-trial hearing. If the discoverable materials under this paragraph exceed ten hours in total length, the prosecution may disclose only the recordings that it intends to introduce at trial or a pre-trial hearing. (vi) 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 which are relevant to the charges against the defendant in the case. (vii) 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. (viii) All reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning physical or mental examinations, or scientific tests or experiments or comparisons, relating to the criminal action or proceeding which were made by or at the request or direction of a public servant engaged in law enforcement activity, or which were made by a person whom the prose- cutor 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 hear- ing. Information under this paragraph also includes, but is not limited to, laboratory information management system records relating to such materials, any preliminary or final findings of non-conformance with accreditation, industry or governmental standards or laboratory proto- cols, and any conflicting analyses or results by laboratory personnel regardless of the laboratory's final analysis or results. If the prose- cution submitted one or more items for testing to, or received results from, a forensic science laboratory or similar entity not under the prosecution's direction or control, the court on motion of a party shall issue subpoenas or orders to such laboratory or entity to cause materi- als under this paragraph to be made available for disclosure. The prose- cution shall not be required to provide information related to the results of physical or mental examinations, or scientific tests or experiments or comparisons, unless and until such examinations, tests, experiments, or comparisons have been completed. (ix) 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: (A) negate the defendant's guilt as to a charged offense; (B) reduce the degree of or mitigate the defend- ant's culpability as to a charged offense; (C) support a potential defense to a charged offense; (D) undermine evidence of the defendant's identity as a perpetrator of a charged offense; (E) provide a basis for a motion to suppress evidence; or (F) mitigate punishment. Information under this subdivision shall be disclosed whether or not such informa- tion is recorded in tangible form and irrespective of whether the prose- cutor credits the information. The prosecutor shall disclose the infor- mation expeditiously upon its receipt and shall not delay disclosure if it is obtained earlier than the time period for disclosure in subdivi- sion one of section 245.10 of this article. (x) A list of all tangible objects obtained from, or allegedly possessed by, the defendant or a co-defendant. The list shall include a desig- nation 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, copy, photograph and test the listed tangible objects. (xi) Whether a search warrant has been executed and all documents relat- ing 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. (xii) 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 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, the prosecution shall notify the defendant in writing, and the time period in which to designate items as exhibits shall be stayed without need for a motion pursuant to subdivision 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. (xiii) The approximate date, time and place of the offense or offenses charged and of the defendant's seizure and arrest. (xiv) 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. (xv)(A) A copy of all electronically created or stored information seized or obtained by or on behalf of law enforcement from: (1) the defendant as described in clause (B) of this paragraph; or (2) a source other than the defendant which is relevant to the charges against the defendant in the case. (B) If the electronically created or stored information originates from a device, account, or other electronically stored source that the prose- cution believes the defendant owned, maintained, or had lawful access to and is within the possession, custody or control of the prosecution or persons under the prosecution's direction or control, the prosecution shall provide a complete copy of the electronically created or stored information from the device or account or other source. (C) If possession of such electronically created or stored information would be a crime under New York state or federal law, the prosecution shall make those portions of the electronically created or stored infor- mation that are not criminal to possess available as specified under this paragraph and shall afford counsel for the defendant access to inspect contraband portions at a supervised location that provides regu- lar and reasonable hours for such access, such as a prosecutor's office, police station, or court. Any delay in counsel for defendant's access to contraband portions of such materials caused by counsel for defendant will be excludable from chargeable time as defined in section 30.30(4) of this chapter. (D) This paragraph shall not be construed to alter or in any way affect the right to be free from unreasonable searches and seizures or such other rights a suspect or defendant may derive from the state constitu- tion or the United States constitution. If in the exercise of reasonable diligence the information under this paragraph is not available for disclosure within the time period required by 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 prosecution shall notify the defendant in writing that such information has not been disclosed, and such disclosure shall be made as soon as practicable and not later than the end of the time peri- od as defined in paragraph c 245.10(1) of this article, unless an order is obtained pursuant to section 245.70 of this article. (b) Non-material information (i) The names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any poten- tial defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. Nothing in this para- graph shall require the disclosure of physical addresses; provided, however, upon a motion and good cause shown the court may direct the disclosure of a physical address. Information under this subdivision relating to the identity of a 911 caller, the victim or witness of an offense defined under article one hundred thirty or section 230.34 or 230.34a of the penal law, any other victim or witness of a crime where the defendant has substantiated affiliation with a criminal enterprise as defined in subdivision three of section 460.10 of the penal law, or 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 prosecution shall notify the defendant in writing that such information has not been disclosed, unless the court rules other- wise for good cause shown. (ii) 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 any potential defense thereto, including a desig- nation 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 prosecution shall notify the defendant in writing that such informa- tion has not been disclosed, unless the court rules otherwise for good cause shown. (iii) A list of the source and approximate quantity of other recordings. and their general subject matter if known, and the defendant shall have the right upon request to obtain recordings not previously disclosed. The prosecution shall disclose the requested materials as soon as prac- ticable and not less than fifteen calendar days after the defendant's request, unless an order is obtained pursuant to section 245.70 of this article. The prosecution may withhold the names and identifying informa- tion of any person who contacted 911 without the need for a protective order pursuant to section 245.70 of this article, provided, however, the defendant may move the court for disclosure. If the prosecution intends to call such person as a witness at a trial or hearing, the prosecution must disclose the name and contact information of such witness no later than fifteen days before such trial or hearing, or as soon as practica- ble. (iv) Any 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 that are relevant to the subject matter of the case and were not turned over pursuant to subdivision 245.20(1)(a) of this chapter. (v) A copy of all electronically created or stored information seized or obtained by or on behalf of law enforcement from: (A) the defendant as described in subparagraph (ii) of this paragraph; or (B) a source other than the defendant which is relevant to the subject matter of the case and not turned over pursuant to subdivision 245.20(1)(a) of this chap- ter. (vi) All tangible property that relates to the subject matter of the case that was not turned over pursuant to subdivision 245.20(1)(a) of this article. If in the exercise of reasonable diligence the prosecutor has not formed an intention within the time periods specified in subdi- vision one of section 245.10 of this article that an item under this subdivision will be introduced at trial or a pre-trial hearing, the prosecution shall notify the defendant in writing, and the time period in which to designate items as exhibits shall be stayed without need for a motion pursuant to subdivision 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. (c) Impeachment material. (i) Name, business address, current curriculum vitae, a list of publica- tions, and a list of proficiency tests and results administered or taken within the past ten years 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 proce- dures, obligations or rights set forth in section 250.10 of this title. If in the exercise of reasonable diligence this information is unavail- able 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 prosecution shall notify the defendant in writ- ing that such information has not been disclosed, and such disclosure shall be made as soon as practicable and not later than sixty calendar days before the first 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. (ii) 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. (iii) A complete record of judgments of conviction 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. (iv) When it is known to the prosecution, the existence of any pending criminal action against all persons designated as potential prosecution witnesses pursuant to section 245.20(1)(b) of this subdivision. (v) 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, all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scien- tific tests and experiments, including but not limited to any test of a person's breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted, including the records of gas chromatography related to the certification of all refer- ence standards and the certification certificate, if any, held by the operator of the machine or instrument. The time period required by subdivision one of section 245.10 of this article shall not apply to the disclosure of records created six months after a test was conducted, but such disclosure shall be made as soon as practicable and in any event, the earlier of fifteen days following receipt, or fifteen days before the first scheduled trial date. 2. Duties of the prosecution. The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information 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. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution. The prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge. This subdivision shall not require the prosecutor to ascertain the existence of witnesses not known to the police or another law enforcement agency, or the written or recorded statements thereof, under subparagraph (iii) of paragraph (a) or subparagraph (i) of subsection (b) of this section. 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 subpara- graphs (iv), (v), (vi), (viii), and xii) of paragraph (a) of this section, paragraphs (iii), (iv), and (vi) of paragraph (b), or subpara- graphs (i) and (ii) of subdivision (c) of this section which the defend- ant intends to introduce 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 other than the defendant whom the defendant intends to call as witnesses at trial or a pretrial 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 discov- erable information under subparagraphs (iv) or (xii) of paragraph (a), subparagraph (vi) of paragraph (b), or subparagraph (i) of paragraph (c) 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 (1)(a), (1)(b), (1)(c) and (4) 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 applica- tion 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 disclosures set forth above, such party 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 non-discoverable parts have been withheld. Section 4. Subdivision 1 of section 255.20 of the criminal procedure law is amended as follows: 1. Except as otherwise expressly provided by law, whether the defendant is represented by counsel or elects to proceed pro se, all pre-trial motions shall be served or filed within the time periods as defined by section 245.10 of this chapter 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. JUSTIFICATION: New York's 2019 discovery reforms created a substantial workload for District Attorneys across the state creating tight deadlines regardless of the information's materiality to the charges a defendant faces. Discoverable information is often voluminous or duplicative and diffi- culty in obtaining materials from agencies in actual possession of the information can results in a delay in disclosure. This is particularly problematic with respect to underlying documents relating to law enforcement disciplinary records or civil proceedings. When these tight timelines and difficulties in obtaining voluminous information are combined with the inability to answer ready for trial results, cases are often dismissed pursuant to CPL 30.30 despite People's best efforts to comply and lack of prejudice to defense. The previous amendments were welcome and necessary to alleviate some of the undue burdens present in the original 2019 Discovery Reforms, howev- er District Attorneys `offices still face unpresented attrition in the face of the ever-mounting discovery obligation. There is a need for a multi-pronged fix to ease the burdens of these obligations while ensur- ing defendants are still provided the discovery to which they are enti- tled. LEGISLATIVE HISTORY: New FISCAL IMPLICATIONS: Yet to be determined EFFECTIVE DATE: This act shall take effect on the sixtieth day after it shall have become a law.
2023-S5885 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
5885
2023-2024 Regular Sessions
I N S E N A T E
March 21, 2023
___________
Introduced by Sen. SCARCELLA-SPANTON -- 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 the discovery
of material, non-material and impeachment information and the required
time frame for such discovery
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (j) of subdivision 4 of section 30.30 of the
criminal procedure law, as amended by section 1 of part KKK of chapter
59 of the laws of 2019, is amended to read as follows:
(j) the period during which a family offense is before a family court
until such time as an accusatory instrument or indictment is filed
against the defendant alleging a crime constituting a family offense, as
such term is defined in section 530.11 of this chapter;
(K) THE PERIOD DURING WHICH THE PROSECUTION PERFORMS ITS DISCOVERY
OBLIGATIONS UNDER PARAGRAPHS (A), (B) AND (C) OF SUBDIVISION ONE OF
SECTION 245.10 OF THIS ARTICLE PROVIDED THAT THE CERTIFICATES OF COMPLI-
ANCE FOR EACH DISCLOSURE ARE FILED WITHIN THE PERIOD OUTLINED IN THE
RESPECTIVE SUBDIVISIONS; PROVIDED, HOWEVER, THAT DELAY IN COMPLIANCE
BEYOND THE MANDATED PERIODS MAY BE EXCLUDABLE AS AN EXCEPTIONAL CIRCUM-
STANCE UNDER PARAGRAPH (G) OF THIS SUBDIVISION.
§ 2. The section heading and subdivision 1 of section 245.10 of the
criminal procedure law, as added by section 2 of part LLL of chapter 59
of the laws of 2019, paragraph (a) of subdivision 1 as amended by
section 1 of part HHH of chapter 56 of the laws of 2020 and subparagraph
(iii) of paragraph (a) as amended by section 5 of subpart D of part UU
of chapter 56 of the laws of 2022, are amended to read as follows:
Timing of discovery AND CERTAIN PRE-TRIAL MOTION PROCEDURE.
1. (a) [Subject to subparagraph (iv) of this paragraph, the prose-
cution shall perform its initial discovery obligations under subdivision
one of section 245.20 of this article as soon as practicable but not
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08106-01-3
S. 5885 2 later than the time periods specified in subparagraphs (i) and (ii) of this paragraph, as applicable. 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 to the extent practicable. When the discoverable materials, including video footage from body-worn cameras, surveillance cameras, or dashboard cameras, are exceptionally voluminous or, despite diligent, good faith efforts, are otherwise not in the actu- al possession of the prosecution, the time period in this paragraph 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. (i) When a defendant is in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obligations within twenty calendar days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, infor- mation, simplified information, misdemeanor complaint or felony complaint. (ii) When the defendant is not in custody during the pendency of the criminal case, the prosecution shall perform its initial discovery obli- gations within thirty-five calendar days after the defendant's arraign- ment on an indictment, superior court information, prosecutor's informa- tion, information, simplified information, misdemeanor complaint or felony complaint. (iii)] THE PROSECUTION SHALL PERFORM ITS INITIAL DISCOVERY OBLIGATIONS UNDER PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE AS SOON AS PRACTICABLE BUT NOT LATER THAN THIRTY DAYS AFTER THE DEFEND- ANT'S ARRAIGNMENT ON AN INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFORMATION, SIMPLIFIED INFORMATION, MISDEMEA- NOR COMPLAINT OR FELONY COMPLAINT. WHEN THE PROSECUTION HAS PROVIDED THE DISCOVERY REQUIRED BY PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE, IT SHALL SERVE UPON THE DEFENDANT AND FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE PURSUANT TO SUBDIVISION ONE OF SECTION 245.50 OF THIS ARTICLE. (B) ONCE THE PROSECUTION HAS FILED ITS CERTIFICATE OF COMPLIANCE CONCERNING THE DISCLOSURE REQUIRED BY PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE, THE DEFENSE MUST FILE ITS PRE-TRIAL MOTIONS WITHIN FORTY-FIVE DAYS OF THAT FILING. THE PROSECUTION SHALL BEGIN PERFORMANCE OF THEIR DISCLOSURE OF DISCOVERY OBLIGATIONS UNDER PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE AFTER COMPLETION OF THEIR DISCOVERY, MUST FILE THEIR RESPONSE TO THE OMNIBUS MOTION WITHIN 30 DAYS OF ITS RECEIPT AND MUST COMPLETE THEIR DISCLOSURE OF DISCOVERY OBLIGATIONS UNDER PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE NO LATER THAN THE DATE OF THE FILING OF THEIR OMNIBUS MOTION RESPONSE. ONCE THE PROSECUTION HAS PROVIDED THE DISCOVERY REQUIRED BY PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE, IT SHALL SERVE UPON THE DEFENDANT AND FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE PURSUANT TO SUBDIVISION ONE OF SECTION 245.50 OF THIS ARTICLE. UPON ITS FILING, THE PROSECUTION MAY FILE A CERTIFICATE OF READINESS OR ANNOUNCE READINESS FOR TRIAL. (C) THE PROSECUTION SHALL PERFORM ITS DISCOVERY OBLIGATIONS UNDER PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE NO LATER THAN FIFTEEN DAYS AFTER DECISION ON THE DEFENDANT'S PRE-TRIAL MOTIONS. S. 5885 3 (D) Notwithstanding the previous provisions of this section, the prosecutor's obligations shall not apply to a simplified information charging a traffic infraction under the vehicle and traffic law, or to an information charging one or more petty offenses as defined by the municipal code of a village, town, city, or county, that do not carry a statutorily authorized sentence of imprisonment, and where the defendant stands charged before the court with no crime or offense, provided however that nothing in this subparagraph shall prevent a defendant from filing a motion for disclosure of such items and information under subdivision one of section 245.20 of this article. The court shall, at the first appearance, advise the defendant of their right to file a motion for discovery. [(iv)(A)] (E)(I) Portions of materials THAT MUST BE DISCLOSED UNDER PARAGRAPHS (A), (B), AND (C) OF SUBDIVISION ONE OF SECTION 245.20 OF THIS ARTICLE 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 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 to the extent practicable. Information related to or evidencing the identity of a 911 caller, the victim or witness of an offense defined under article one hundred thirty or sections 230.34 and 230.34-a of the penal law, or any other victim or witness of a crime where the defendant has substan- tiated affiliation with a criminal enterprise as defined in subdivision three of section 460.10 of the penal law may be withheld, provided, however, the defendant may move the court for disclosure. [(B)] (II) When the discoverable materials are exceptionally volumi- nous or, despite diligent, good faith efforts, are otherwise not in the actual possession of the prosecution, the time period in this paragraph may be extended pursuant to a motion pursuant to subdivision two of section 245.70 of this article. For purposes of this article, voluminous materials may include, but are not limited to, video footage from body worn cameras, surveillance cameras or dashboard cameras. (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 prior to the first scheduled trial date. (c)] (F) The prosecution shall disclose statements of the defendant as described in 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. § 3. Subdivisions 1, 2, 4 and 5 of section 245.20 of the criminal procedure law, as added by section 2 of part LLL of chapter 59 of the laws of 2019 and paragraphs (c), (f), (g) and (j) of subdivision 1 as amended by section 2 of part HHH of chapter 56 of the laws of 2020, are amended to read as follows: 1. Initial discovery for the defendant. The prosecution shall disclose to the defendant, and permit the defendant to discover, inspect, copy, photograph and test, all items and information IN THE FOLLOWING CATEGO- RIES OF INFORMATION that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons S. 5885 4 under the prosecution's direction or control, including but not limited to: (a) MATERIAL INFORMATION: (I) 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. [(b)] (II) All transcripts of the testimony of a person who has testi- fied 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; except that such disclosure shall be made as soon as practicable and not later than [thirty calendar days before the first scheduled trial date] THE END OF THE TIME PERIOD UNDER PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 245.10 OF THIS ARTICLE, 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, notwithstand- ing the otherwise-applicable time periods for disclosure in this arti- cle. [(c) The names and adequate contact information for all persons other than law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to any poten- tial defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. Nothing in this para- graph shall require the disclosure of physical addresses; provided, however, upon a motion and good cause shown the court may direct the disclosure of a physical address. Information under this subdivision relating to the identity of a 911 caller, the victim or witness of an offense defined under article one hundred thirty or section 230.34 or 230.34-a of the penal law, any other victim or witness of a crime where the defendant has substantiated affiliation with a criminal enterprise as defined in subdivision three of section 460.10 of the penal law, or 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 prosecution shall notify the defendant in writing that such information has not been disclosed, unless the court rules other- wise 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 any 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 prosecution shall notify the defendant in writing that such informa- tion has not been disclosed, unless the court rules otherwise for good cause shown. (e)] (III) 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 any potential defense thereto, including all police reports, notes of police and other investigators, S. 5885 5 and law enforcement agency reports. This provision also includes state- ments, 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, a list of publications, and a list of profi- ciency tests and results administered or taken within the past ten years 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 state- ment of the facts and opinions to which the expert is expected to testi- fy and a summary of the grounds for each opinion. This paragraph does not alter or in any way affect the procedures, obligations or rights set forth in section 250.10 of this title. If in the exercise of reasonable diligence this information is unavailable for disclosure within the time period specified in subdivision one of section 245.10 of this article, that period shall be stayed without need for a motion pursuant to subdi- vision two of section 245.70 of this article; except that the prose- cution shall notify the defendant in writing that such information has not been disclosed, and such disclosure shall be made as soon as practi- cable and not later than sixty calendar days before the first 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 prose- cution thirty calendar days to make the disclosure and the defendant thirty calendar days to prepare and respond to the new materials. (g)] (IV) INTENTION TO INTRODUCE EXPERT OPINION EVIDENCE. (V) All tapes or other electronic recordings, including all electronic recordings of 911 telephone calls made or received in connection with the alleged criminal incident, and a designation by the prosecutor as to which of the recordings under this paragraph the prosecution intends to introduce at trial or a pre-trial hearing. If the discoverable materials under this paragraph exceed ten hours in total length, the prosecution may disclose only the recordings that it intends to introduce at trial or a pre-trial hearing[, along with a list of the source and approximate quantity of other recordings and their general subject matter if known, and the defendant shall have the right upon request to obtain recordings not previously disclosed. The prosecution shall disclose the requested materials as soon as practicable and not less than fifteen calendar days after the defendant's request, unless an order is obtained pursuant to section 245.70 of this article. The prosecution may withhold the names and identifying information of any person who contacted 911 without the need for a protective order pursuant to section 245.70 of this article, provided, however, the defendant may move the court for disclosure. If the prosecution intends to call such person as a witness at a trial or hearing, the prosecution must disclose the name and contact information of such witness no later than fifteen days before such trial or hearing, or as soon as practicable]. [(h)] (VI) 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 [relate to the subject matter of] ARE RELEVANT TO THE CHARGES AGAINST THE DEFENDANT IN the case. [(i)] (VII) 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. S. 5885 6 [(j)] (VIII) All reports, documents, records, data, calculations or writings, including but not limited to preliminary tests and screening results and bench notes and analyses performed or stored electronically, concerning physical or mental examinations, or scientific tests or experiments or comparisons, relating to the criminal action or proceed- ing which were made by or at the request or direction of a public serv- ant 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. Information under this paragraph also includes, but is not limited to, laboratory information management system records relating to such materials, any preliminary or final findings of non- conformance with accreditation, industry or governmental standards or laboratory protocols, and any conflicting analyses or results by labora- tory personnel regardless of the laboratory's final analysis or results. If the prosecution submitted one or more items for testing to, or received results from, a forensic science laboratory or similar entity not under the prosecution's direction or control, the court on motion of a party shall issue subpoenas or orders to such laboratory or entity to cause materials under this paragraph to be made available for disclo- sure. The prosecution shall not be required to provide information related to the results of physical or mental examinations, or scientific tests or experiments or comparisons, unless and until such examinations, tests, experiments, or comparisons have been completed. [(k)] (IX) 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)] (A) negate the defendant's guilt as to a charged offense; [(ii)] (B) reduce the degree of or miti- gate the defendant's culpability as to a charged offense; [(iii)] (C) support a potential defense to a charged offense; [(iv) impeach the credibility of a testifying prosecution witness; (v)] (D) undermine evidence of the defendant's identity as a perpetrator of a charged offense; [(vi)] (E) provide a basis for a motion to suppress evidence; or [(vii)] (F) mitigate punishment. Information under this subdivision shall be disclosed whether or not such information is recorded in tangi- ble form and irrespective of whether the prosecutor credits the informa- tion. The prosecutor shall disclose the information expeditiously upon its receipt and shall not delay disclosure 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)] (X) 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 S. 5885 7 was recovered. There is also a right to inspect, copy, photograph and test the listed tangible objects. [(n)] (XI) Whether a search warrant has been executed and all docu- ments 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)] (XII) All tangible property that [relates to the subject matter of the case, along with a designation of which items] the prosecution intends to introduce in its case-in-chief at trial or a pre-trial hear- ing. If in the exercise of 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, the prosecution shall notify the defendant in writing, and the time period in which to designate items as exhibits shall be stayed without need for a motion pursuant to subdivision 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. [(p) A complete record of judgments of conviction 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)] (XIII) 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 traf- fic law, where the defendant is charged by indictment, superior court information, prosecutor's information, information, or simplified infor- mation, all records of calibration, certification, inspection, repair or maintenance of machines and instruments utilized to perform any scien- tific tests and experiments, including but not limited to any test of a person's breath, blood, urine or saliva, for the period of six months prior and six months after such test was conducted, including the records of gas chromatography related to the certification of all refer- ence standards and the certification certificate, if any, held by the operator of the machine or instrument. The time period required by subdivision one of section 245.10 of this article shall not apply to the disclosure of records created six months after a test was conducted, but such disclosure shall be made as soon as practicable and in any event, the earlier of fifteen days following receipt, or fifteen days before the first scheduled trial date. (t)] (XIV) 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. [(u) (i)] (XV)(A) A copy of all electronically created or stored information seized or obtained by or on behalf of law enforcement from: [(A)] (1) the defendant as described in CLAUSE (B) OF THIS subparagraph [(ii) of this paragraph]; or [(B)] (2) a source other than the defendant which [relates to the subject matter of] IS RELEVANT TO THE CHARGES AGAINST THE DEFENDANT IN the case. [(ii)] (B) If the electronically created or stored information origi- nates from a device, account, or other electronically stored source that the prosecution believes the defendant owned, maintained, or had lawful S. 5885 8 access to and is within the possession, custody or control of the prose- cution or persons under the prosecution's direction or control, the prosecution shall provide a complete copy of the electronically created or stored information from the device or account or other source. [(iii)] (C) If possession of such electronically created or stored information would be a crime under New York state or federal law, the prosecution shall make those portions of the electronically created or stored information that are not criminal to possess available as speci- fied under this paragraph and shall afford counsel for the defendant access to inspect contraband portions at a supervised location that provides regular and reasonable hours for such access, such as a prosecutor's office, police station, or court. ANY DELAY IN COUNSEL FOR THE DEFENDANT'S ACCESS TO CONTRABAND PORTIONS OF SUCH MATERIALS CAUSED BY COUNSEL FOR SUCH DEFENDANT SHALL BE EXCLUDABLE FROM CHARGEABLE TIME AS DEFINED IN SUBDIVISION FOUR OF SECTION 30.30 OF THIS CHAPTER. [(iv)] (D) This paragraph shall not be construed to alter or in any way affect the right to be free from unreasonable searches and seizures or such other rights a suspect or defendant may derive from the state constitution or the United States constitution. If in the exercise of reasonable diligence the information under this paragraph is not avail- able for disclosure within the time period required by 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 prosecution shall notify the defendant in writ- ing that such information has not been disclosed, and such disclosure shall be made as soon as practicable and not later than [forty-five calendar days before the first scheduled trial date] THE END OF THE TIME PERIOD UNDER PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 245.10 OF THIS ARTICLE, unless an order is obtained pursuant to section 245.70 of this article. (B) NON-MATERIAL INFORMATION: (I) THE NAMES AND ADEQUATE CONTACT INFORMATION FOR ALL PERSONS OTHER THAN LAW ENFORCEMENT PERSONNEL WHOM THE PROSECUTOR KNOWS TO HAVE EVIDENCE OR INFORMATION RELEVANT TO ANY OFFENSE CHARGED OR TO ANY POTEN- TIAL DEFENSE THERETO, INCLUDING A DESIGNATION BY THE PROSECUTOR AS TO WHICH OF SUCH PERSONS MAY BE CALLED AS WITNESSES. NOTHING IN THIS PARA- GRAPH SHALL REQUIRE THE DISCLOSURE OF PHYSICAL ADDRESSES; PROVIDED, HOWEVER, UPON A MOTION AND GOOD CAUSE SHOWN THE COURT MAY DIRECT THE DISCLOSURE OF A PHYSICAL ADDRESS. INFORMATION UNDER THIS SUBDIVISION RELATING TO THE IDENTITY OF A 911 CALLER, THE VICTIM OR WITNESS OF AN OFFENSE DEFINED UNDER ARTICLE ONE HUNDRED THIRTY OR SECTION 230.34 OR 230.34-A OF THE PENAL LAW, ANY OTHER VICTIM OR WITNESS OF A CRIME WHERE THE DEFENDANT HAS SUBSTANTIATED AFFILIATION WITH A CRIMINAL ENTERPRISE AS DEFINED IN SUBDIVISION THREE OF SECTION 460.10 OF THE PENAL LAW, OR A CONFIDENTIAL INFORMANT MAY BE WITHHELD, AND REDACTED FROM DISCOVERY MATERIALS, WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.70 OF THIS ARTICLE; PROVIDED THAT THE PROSECUTION SHALL NOTIFY THE DEFENDANT IN WRITING THAT SUCH INFORMATION HAS NOT BEEN DISCLOSED, UNLESS THE COURT RULES OTHERWISE FOR GOOD CAUSE SHOWN. (II) 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 ANY POTENTIAL DEFENSE THERETO, INCLUDING A DESIGNATION BY THE PROSECUTOR AS TO WHICH OF SUCH 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; S. 5885 9 PROVIDED THAT THE PROSECUTION SHALL NOTIFY THE DEFENDANT IN WRITING THAT SUCH INFORMATION HAS NOT BEEN DISCLOSED, UNLESS THE COURT RULES OTHER- WISE FOR GOOD CAUSE SHOWN. (III) A LIST OF THE SOURCE AND APPROXIMATE QUANTITY OF OTHER RECORDINGS, AND THEIR GENERAL SUBJECT MATTER IF KNOWN. THE DEFENDANT SHALL HAVE THE RIGHT UPON REQUEST TO OBTAIN RECORDINGS NOT PREVIOUSLY DISCLOSED. THE PROSECUTION SHALL DISCLOSE THE REQUESTED MATERIALS AS SOON AS PRACTICABLE AND NOT LESS THAN FIFTEEN CALENDAR DAYS AFTER THE DEFENDANT'S REQUEST, UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.70 OF THIS ARTICLE. THE PROSECUTION MAY WITHHOLD THE NAMES AND IDENTIFYING INFORMATION OF ANY PERSON WHO CONTACTED 911 WITHOUT THE NEED FOR A PROTECTIVE ORDER PURSUANT TO SECTION 245.70 OF THIS ARTICLE, PROVIDED, HOWEVER, THAT THE DEFENDANT MAY MOVE THE COURT FOR DISCLOSURE. IF THE PROSECUTION INTENDS TO CALL SUCH PERSON AS A WITNESS AT A TRIAL OR HEARING, THE PROSECUTION SHALL DISCLOSE THE NAME AND CONTACT INFORMA- TION OF SUCH WITNESS NO LATER THAN FIFTEEN DAYS BEFORE SUCH TRIAL OR HEARING, OR AS SOON AS PRACTICABLE. (IV) ANY PHOTOGRAPHS AND DRAWINGS MADE OR COMPLETED BY A PUBLIC SERV- ANT 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 THAT ARE RELEVANT TO THE SUBJECT MATTER OF THE CASE AND WERE NOT TURNED OVER PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. (V) A COPY OF ALL ELECTRONICALLY CREATED OR STORED INFORMATION SEIZED OR OBTAINED BY OR ON BEHALF OF LAW ENFORCEMENT FROM: (A) THE DEFENDANT AS DESCRIBED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH; OR (B) A SOURCE OTHER THAN THE DEFENDANT WHICH IS RELEVANT TO THE SUBJECT MATTER OF THE CASE AND NOT TURNED OVER PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVISION. (VI) ALL TANGIBLE PROPERTY THAT RELATES TO THE SUBJECT MATTER OF THE CASE THAT WAS NOT TURNED OVER PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVI- SION. IF IN THE EXERCISE OF REASONABLE DILIGENCE THE PROSECUTOR HAS NOT FORMED AN INTENTION WITHIN THE TIME PERIODS 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, THE PROSECUTION SHALL NOTIFY THE DEFENDANT IN WRITING, AND THE TIME PERIOD IN WHICH TO DESIGNATE ITEMS AS EXHIBITS SHALL BE STAYED WITHOUT NEED FOR A MOTION PURSUANT TO SUBDIVISION 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. (C) IMPEACHMENT MATERIAL: (I) NAME, BUSINESS ADDRESS, CURRENT CURRICULUM VITAE, A LIST OF PUBLI- CATIONS, AND A LIST OF PROFICIENCY TESTS AND RESULTS ADMINISTERED OR TAKEN WITHIN THE PAST TEN YEARS OF EACH EXPERT WITNESS WHOM THE PROSECU- TOR INTENDS TO CALL AS A WITNESS AT TRIAL OR A PRE-TRIAL HEARING, AND ALL REPORTS PREPARED BY THE EXPERT THAT PERTAIN TO THE CASE, OR IF NO REPORT IS PREPARED, A WRITTEN STATEMENT OF THE FACTS AND OPINIONS TO WHICH THE EXPERT IS EXPECTED TO TESTIFY AND A SUMMARY OF THE GROUNDS FOR EACH OPINION. THIS PARAGRAPH DOES NOT ALTER OR IN ANY WAY AFFECT THE PROCEDURES, OBLIGATIONS OR RIGHTS SET FORTH IN SECTION 250.10 OF THIS TITLE. IF IN THE EXERCISE OF REASONABLE DILIGENCE THIS INFORMATION IS UNAVAILABLE FOR DISCLOSURE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVI- SION 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 PROSECUTION SHALL NOTIFY THE DEFENDANT IN WRITING THAT SUCH INFORMATION HAS NOT BEEN DISCLOSED, AND SUCH DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE AND NOT LATER THAN SIXTY CALENDAR DAYS BEFORE THE FIRST SCHEDULED TRIAL DATE, UNLESS AN ORDER IS S. 5885 10 OBTAINED PURSUANT TO SECTION 245.70 OF THIS ARTICLE. WHEN THE PROSE- CUTION'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. (II) 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. (III) A COMPLETE RECORD OF JUDGMENTS OF CONVICTION FOR ALL DEFENDANTS AND ALL PERSONS DESIGNATED AS POTENTIAL PROSECUTION WITNESSES PURSUANT TO THIS PARAGRAPH, OTHER THAN THOSE WITNESSES WHO ARE EXPERTS. (IV) 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 (B) OF THIS SUBDIVISION. (V) 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, ALL RECORDS OF CALIBRATION, CERTIFICATION, INSPECTION, REPAIR OR MAINTENANCE OF MACHINES AND INSTRUMENTS UTILIZED TO PERFORM ANY SCIEN- TIFIC TESTS AND EXPERIMENTS, INCLUDING BUT NOT LIMITED TO ANY TEST OF A PERSON'S BREATH, BLOOD, URINE OR SALIVA, FOR THE PERIOD OF SIX MONTHS PRIOR AND SIX MONTHS AFTER SUCH TEST WAS CONDUCTED, INCLUDING THE RECORDS OF GAS CHROMATOGRAPHY RELATED TO THE CERTIFICATION OF ALL REFER- ENCE STANDARDS AND THE CERTIFICATION CERTIFICATE, IF ANY, HELD BY THE OPERATOR OF THE MACHINE OR INSTRUMENT. THE TIME PERIOD REQUIRED BY SUBDIVISION ONE OF SECTION 245.10 OF THIS ARTICLE SHALL NOT APPLY TO THE DISCLOSURE OF RECORDS CREATED SIX MONTHS AFTER A TEST WAS CONDUCTED, BUT SUCH DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE AND IN ANY EVENT, THE EARLIER OF FIFTEEN DAYS FOLLOWING RECEIPT, OR FIFTEEN DAYS BEFORE THE FIRST SCHEDULED TRIAL DATE. 2. Duties of the prosecution. The prosecutor shall make a diligent, good faith effort to ascertain the existence of material or information 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. For purposes of subdivision one of this section, all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution. The prosecution shall also identify any laboratory having contact with evidence related to the prosecution of a charge. This subdivision shall not require the prosecutor to ascertain the existence of witnesses not known to the police or another law enforcement agency, or the written or recorded statements thereof, under SUBPARAGRAPH (III) OF paragraph [(c)] (A) or [(e)] SUBPARAGRAPH (I) OF PARAGRAPH (B) of subdivision one of this section. 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), (l) and (o)] SUBPARAGRAPHS (IV), (V), (VI), (VIII) S. 5885 11 OR (XII) OF PARAGRAPH (A), SUBPARAGRAPHS (III), (IV), OR (VI) OF PARA- GRAPH (B), OR SUBPARAGRAPHS (I) OR (II) OF PARAGRAPH (C) of subdivision one of this section, which the defendant intends to introduce 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 record- ing, of those persons 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 SUBPARAGRAPHS (IV) OR (XII) paragraph [(f) or (o)] (A), SUBPARAGRAPH (VI) OF PARAGRAPH (B), OR SUBPARAGRAPH (I) OF PARAGRAPH (C) 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 subdivision 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] PARAGRAPHS (A), (B) AND (C) OF SUBDIVISION one[, two, three] and SUBDIVISION 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 disclosures set forth above, such party may move for a protective order pursuant to section 245.70 of this article and production of the item shall be stayed pend- ing a ruling by the court. The opposing party shall be notified in writ- ing 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. § 4. Subdivision 1 of section 255.20 of the criminal procedure law, as amended by section 7 of part LLL of chapter 59 of the laws of 2019, 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] THE TIME PERIODS AS DEFINED BY SECTION 245.10 OF THIS TITLE 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 of this title, (b) an eavesdropping warrant and applica- tion have been furnished pursuant to section 700.70 of this chapter, or (c) a notice of intention to introduce evidence has been served pursuant to section 710.30 of this chapter, 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 S. 5885 12 counsel or to have counsel assigned, such forty-five day period shall commence on the date counsel initially appears on defendant's behalf.] § 5. This act shall take effect on the sixtieth day after it shall have become a law.
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