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Assembly Actions -
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| Feb 05, 2025 |
referred to codes |
Senate Bill S4461
2025-2026 Legislative Session
Repeals certain provisions of the criminal procedure law, judiciary law and the executive law and makes conforming changes thereto; repealer
download bill text pdfSponsored By
(R, C) 44th Senate District
Current 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
(R, C) 57th Senate District
(R, C) 53rd Senate District
(R, C, IP) 54th Senate District
(R, C) 2nd Senate District
(R, C) 51st Senate District
(R, C) 58th Senate District
(R, C, IP) 62nd Senate District
(R) 1st Senate District
(R, C, IP) 45th Senate District
(R, C) 8th Senate District
2025-S4461 (ACTIVE) - Details
- Current Committee:
- Senate Codes
- Law Section:
- Criminal Procedure Law
- Laws Affected:
- Amd CP L, generally; amd §§450.10, 460.80 & 480.10, Pen L; rpld §216 sub 5, Judy L; rpld §837-u, Exec L
- Versions Introduced in Other Legislative Sessions:
-
2019-2020:
S6849
2021-2022: S1523
2023-2024: S5017
2025-S4461 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
4461
2025-2026 Regular Sessions
I N S E N A T E
February 5, 2025
___________
Introduced by Sens. TEDISCO, BORRELLO, GRIFFO, HELMING, MATTERA, OBER-
ACKER, O'MARA, ORTT, PALUMBO, STEC, WEIK -- 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 providing
judges more discretion regarding securing orders and limiting the
lengths of certain orders; to repeal certain provisions of the crimi-
nal procedure law relating thereto; to amend the criminal procedure
law and the penal law, in relation to establishing new criminal
discovery rules; to repeal article 245 of the criminal procedure law
relating thereto; and to repeal certain provisions of the judiciary
law and the executive law relating to securing orders and criminal
discovery
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 3 of section 150.10 of the criminal procedure
law is REPEALED.
§ 2. Subdivision 1 of section 150.20 of the criminal procedure law, as
amended by section 1-a of part JJJ of chapter 59 of the laws of 2019,
paragraph (a) as separately amended by section 1 of subpart B of part VV
of chapter 56 of the laws of 2023 and chapter 23 of the laws of 2024,
subparagraph (viii) as amended and subparagraphs (ix), (x) and (xi) of
paragraph (b) as added by section 1 of subpart B of part UU of chapter
56 of the laws of 2022, is amended to read as follows:
1. [(a)] Whenever a police officer is authorized pursuant to section
140.10 of this title to arrest a person without a warrant for an offense
other than a class A, B, C or D felony or a violation of section 130.25,
former section 130.40, section 205.10, 205.17, 205.19 or 215.56 of the
penal law, or other than where an arrest is required to be made pursuant
to subdivision four of section 140.10 of this title, the officer [shall,
except as set out in paragraph (b) of this subdivision] MAY, subject to
the provisions of subdivisions three and four of section 150.40 of this
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08913-01-5
S. 4461 2
[title] ARTICLE, instead issue to and serve upon such person an appear-
ance ticket.
[(b) An officer is not required to issue an appearance ticket if:
(i) the person has one or more outstanding local criminal court or
superior court warrants;
(ii) the person has failed to appear in court proceedings in the last
two years;
(iii) the person has been given a reasonable opportunity to make their
verifiable identity and a method of contact known, and has been unable
or unwilling to do so, so that a custodial arrest is necessary to
subject the individual to the jurisdiction of the court. For the
purposes of this section, an officer may rely on various factors to
determine a person's identity, including but not limited to personal
knowledge of such person, such person's self-identification, or photo-
graphic identification. There is no requirement that a person present
photographic identification in order to be issued an appearance ticket
in lieu of arrest where the person's identity is otherwise verifiable;
however, if offered by such person, an officer shall accept as evidence
of identity the following: a valid driver's license or non-driver iden-
tification card issued by the commissioner of motor vehicles, the feder-
al government, any United States territory, commonwealth or possession,
the District of Columbia, a state government or municipal government
within the United States or a provincial government of the dominion of
Canada; a valid passport issued by the United States government or any
other country; an identification card issued by the armed forces of the
United States; a public benefit card, as defined in paragraph (a) of
subdivision one of section 158.00 of the penal law;
(iv) the person is charged with a crime between members of the same
family or household, as defined in subdivision one of section 530.11 of
this chapter;
(v) the person is charged with a crime defined in article 130 of the
penal law;
(vi) it reasonably appears the person should be brought before the
court for consideration of issuance of an order of protection, pursuant
to section 530.13 of this chapter, based on the facts of the crime or
offense that the officer has reasonable cause to believe occurred;
(vii) the person is charged with a crime for which the court may
suspend or revoke his or her driver license;
(viii) it reasonably appears to the officer, based on the observed
behavior of the individual in the present contact with the officer and
facts regarding the person's condition that indicates a sign of distress
to such a degree that the person would face harm without immediate
medical or mental health care, that bringing the person before the court
would be in such person's interest in addressing that need; provided,
however, that before making the arrest, the officer shall make all
reasonable efforts to assist the person in securing appropriate
services;
(ix) the person is eighteen years of age or older and charged with
criminal possession of a weapon on school grounds as defined in section
265.01-a of the penal law;
(x) the person is eighteen years of age or older and charged with a
hate crime as defined in section 485.05 of the penal law; or
(xi) the offense is a qualifying offense pursuant to paragraph (t) of
subdivision four of section 510.10 of this chapter, or pursuant to para-
graph (t) of subdivision four of section 530.40 of this chapter.]
S. 4461 3
§ 3. The criminal procedure law is amended by adding a new section
150.30 to read as follows:
§ 150.30 APPEARANCE TICKET; ISSUANCE AND SERVICE THEREOF AFTER ARREST
UPON POSTING OF PRE-ARRAIGNMENT BAIL.
1. ISSUANCE AND SERVICE OF AN APPEARANCE TICKET BY A POLICE OFFICER
FOLLOWING AN ARREST WITHOUT A WARRANT, AS PRESCRIBED IN SUBDIVISION TWO
OF SECTION 150.20 OF THIS ARTICLE, MAY BE MADE CONDITIONAL UPON THE
POSTING OF A SUM OF MONEY, KNOWN AS PRE-ARRAIGNMENT BAIL. IN SUCH CASE,
THE BAIL BECOMES FORFEIT UPON FAILURE OF SUCH PERSON TO COMPLY WITH THE
DIRECTIONS OF THE APPEARANCE TICKET. THE PERSON POSTING SUCH BAIL MUST
COMPLETE AND SIGN A FORM WHICH STATES (A) THE NAME, RESIDENTIAL ADDRESS
AND OCCUPATION OF EACH PERSON POSTING CASH BAIL; AND (B) THE TITLE OF
THE CRIMINAL ACTION OR PROCEEDING INVOLVED; AND (C) THE OFFENSE OR
OFFENSES WHICH ARE THE SUBJECTS OF THE ACTION OR PROCEEDING INVOLVED,
AND THE STATUS OF SUCH ACTION OR PROCEEDING; AND (D) THE NAME OF THE
PRINCIPAL AND THE NATURE OF THE PRINCIPAL'S INVOLVEMENT IN OR CONNECTION
WITH SUCH ACTION OR PROCEEDING; AND (E) THE DATE OF THE PRINCIPAL'S NEXT
APPEARANCE IN COURT; AND (F) AN ACKNOWLEDGEMENT THAT THE CASH BAIL WILL
BE FORFEITED IF THE PRINCIPAL DOES NOT COMPLY WITH THE DIRECTIONS OF THE
APPEARANCE TICKET; AND (G) THE AMOUNT OF MONEY POSTED AS CASH BAIL. SUCH
PRE-ARRAIGNMENT BAIL MAY BE POSTED AS PROVIDED IN SUBDIVISION TWO OR
THREE OF THIS SECTION.
2. A DESK OFFICER IN CHARGE AT A POLICE STATION, COUNTY JAIL, OR
POLICE HEADQUARTERS, OR ANY OF SUCH OFFICER'S SUPERIOR OFFICERS, MAY IN
SUCH PLACE, FIX PRE-ARRAIGNMENT BAIL, IN AN AMOUNT PRESCRIBED IN THIS
SUBDIVISION, AND UPON THE POSTING THEREOF MUST ISSUE AND SERVE AN
APPEARANCE TICKET UPON THE ARRESTED PERSON, GIVE A RECEIPT FOR THE BAIL,
AND RELEASE SUCH PERSON FROM CUSTODY. SUCH PRE-ARRAIGNMENT BAIL MAY BE
FIXED IN THE FOLLOWING AMOUNTS:
(A) IF THE ARREST WAS FOR A CLASS E FELONY, ANY AMOUNT NOT EXCEEDING
SEVEN HUNDRED FIFTY DOLLARS.
(B) IF THE ARREST WAS FOR A CLASS A MISDEMEANOR, ANY AMOUNT NOT
EXCEEDING FIVE HUNDRED DOLLARS.
(C) IF THE ARREST WAS FOR A CLASS B MISDEMEANOR OR AN UNCLASSIFIED
MISDEMEANOR, ANY AMOUNT NOT EXCEEDING TWO HUNDRED FIFTY DOLLARS.
(D) IF THE ARREST WAS FOR A PETTY OFFENSE, ANY AMOUNT NOT EXCEEDING
ONE HUNDRED DOLLARS.
3. A POLICE OFFICER, WHO HAS ARRESTED A PERSON WITHOUT A WARRANT
PURSUANT TO SUBDIVISION TWO OF SECTION 150.20 OF THIS ARTICLE FOR A
TRAFFIC INFRACTION, MAY, WHERE THE OFFICER REASONABLY BELIEVES THAT SUCH
ARRESTED PERSON IS NOT LICENSED TO OPERATE A MOTOR VEHICLE BY THIS STATE
OR ANY STATE COVERED BY A RECIPROCAL COMPACT GUARANTEEING APPEARANCE AS
IS PROVIDED IN SECTION FIVE HUNDRED SEVENTEEN OF THE VEHICLE AND TRAFFIC
LAW, FIX PRE-ARRAIGNMENT BAIL IN THE AMOUNT OF FIFTY DOLLARS; PROVIDED,
HOWEVER, SUCH BAIL SHALL BE POSTED BY MEANS OF A CREDIT CARD OR SIMILAR
DEVICE. UPON THE POSTING THEREOF, SAID OFFICER MUST ISSUE AND SERVE AN
APPEARANCE TICKET UPON THE ARRESTED PERSON, GIVE A RECEIPT FOR THE BAIL,
AND RELEASE SUCH PERSON FROM CUSTODY.
4. THE CHIEF ADMINISTRATOR OF THE COURTS SHALL ESTABLISH A SYSTEM FOR
THE POSTING OF PRE-ARRAIGNMENT BAIL BY MEANS OF CREDIT CARD OR SIMILAR
DEVICE, AS IS PROVIDED BY SECTION TWO HUNDRED TWELVE OF THE JUDICIARY
LAW. THE HEAD OF EACH POLICE DEPARTMENT OR POLICE FORCE AND OF ANY STATE
DEPARTMENT, AGENCY, BOARD, COMMISSION OR PUBLIC AUTHORITY HAVING POLICE
OFFICERS WHO FIX PRE-ARRAIGNMENT BAIL AS PROVIDED HEREIN MAY ELECT TO
USE THE SYSTEM ESTABLISHED BY THE CHIEF ADMINISTRATOR OR MAY ESTABLISH
S. 4461 4
SUCH OTHER SYSTEM FOR THE POSTING OF PRE-ARRAIGNMENT BAIL BY MEANS OF
CREDIT CARD OR SIMILAR DEVICE AS SUCH PERSON MAY DEEM APPROPRIATE.
§ 4. Subdivision 1 of section 150.40 of the criminal procedure law, as
amended by section 8 of part UU of chapter 56 of the laws of 2020, is
amended to read as follows:
1. An appearance ticket must be made returnable [at a date as soon as
possible, but in no event later than twenty days from the date of issu-
ance; or at the next scheduled session of the appropriate local criminal
court if such session is scheduled to occur more than twenty days from
the date of issuance; or at a later date, with the court's permission
due to enrollment in a pre-arraignment diversion program. The appearance
ticket shall be made returnable] in a local criminal court designated in
section 100.55 of this title as one with which an information for the
offense in question may be filed.
§ 5. Section 150.80 of the criminal procedure law is REPEALED.
§ 6. Subdivisions 3-a, 3-b, 21 and 22 of section 500.10 of the crimi-
nal procedure law are REPEALED.
§ 7. Subdivisions 5, 6, 7 and 9 of section 500.10 of the criminal
procedure law, subdivision 5 as amended by section 1 of subpart A of
part VV of chapter 56 of the laws of 2023 and subdivisions 6, 7 and 9 as
amended by section 1-e of part JJJ of chapter 59 of the laws of 2019,
are amended to read as follows:
5. "Securing order" means an order of a court committing a principal
to the custody of the sheriff or fixing bail, [where authorized,] or
releasing the principal on the principal's own recognizance [or releas-
ing the principal under non-monetary conditions], or, as otherwise
authorized under this title, ordering non-monetary conditions in
conjunction with fixing bail.
6. "Order of recognizance or bail" means a securing order releasing a
principal on the principal's own recognizance or [under non-monetary
conditions or, where authorized,] fixing bail.
7. "Application for recognizance or bail" means an application by a
principal that the court, instead of committing the principal to or
retaining the principal in the custody of the sheriff, either release
the principal on the principal's own recognizance[, release under non-
monetary conditions, or, where authorized,] OR fix bail.
9. "Bail" means cash bail[,] OR a bail bond [or money paid with a
credit card].
§ 8. Section 510.10 of the criminal procedure law, as amended by
section 2 of part JJJ of chapter 59 of the laws of 2019, the opening
paragraph as added and the opening paragraph of subdivision 1, subdivi-
sion 3 and the opening paragraph of subdivision 4 as amended by section
2 of subpart A of part VV of chapter 56 of the laws of 2023, subdivision
1 as amended by section 1 of subpart C of part UU of chapter 56 of the
laws of 2022, subdivision 4 as amended by section 2 of part UU of chap-
ter 56 of the laws of 2020, and paragraphs (s) and (t) as amended and
paragraph (u) of subdivision 4 as added by section 2 of subpart B of
part UU of chapter 56 of the laws of 2022, is amended to read as
follows:
§ 510.10 Securing order; when required; alternatives available[; stand-
ard to be applied].
The imposition of a specific type of securing order is in some cases
required by law and in other cases within the discretion of the court in
accordance with the principles of, and pursuant to its authority granted
under, this title.
S. 4461 5
1. When a principal, whose future court attendance at a criminal
action or proceeding is or may be required, INITIALLY comes under the
control of a court, such court shall impose a securing order in accord-
ance with this title. Except as otherwise required by law, the court
shall make an individualized determination as to whether the principal
poses a risk of flight to avoid prosecution, consider the kind and
degree of control or restriction necessary to reasonably assure the
principal's return to court, and select a securing order consistent with
its determination under this subdivision. The court shall explain the
basis for its determination and its choice of securing order on the
record or in writing. In making a determination under this subdivision,
the court must consider and take into account available information
about the principal, including:
(a) The principal's activities and history;
(b) If the principal is a defendant, the charges facing the principal;
(c) (I) THE PRINCIPAL'S CHARACTER, REPUTATION, HABITS AND MENTAL
CONDITION;
(II) THE PRINCIPAL'S EMPLOYMENT AND FINANCIAL RESOURCES;
(III) THE PRINCIPAL'S FAMILY TIES AND THE LENGTH OF THE PRINCIPAL'S
RESIDENCE IF ANY IN THE COMMUNITY;
(IV) The principal's criminal [conviction] record if any;
[(d)] (V) The principal's record of previous adjudication as a juve-
nile delinquent, as retained pursuant to section 354.1 of the family
court act, or, of pending cases where fingerprints are retained pursuant
to section 306.1 of such act, or a youthful offender, if any;
[(e)] (VI) The principal's previous record, IF ANY, IN RESPONDING TO
COURT APPEARANCES WHEN REQUIRED OR with respect to flight to avoid crim-
inal prosecution;
[(f) If monetary bail is authorized, according to the restrictions set
forth in this title, the principal's individual financial circumstances,
and, in cases where bail is authorized, the principal's ability to post
bail without posing undue hardship, as well as his or her ability to
obtain a secured, unsecured, or partially secured bond;
(g)] (VII) Any violation by the principal of an order of protection
issued by any court;
[(h)] (VIII) The principal's history of use or possession of a
firearm;
[(i)] (IX) Whether the charge is alleged to have caused serious harm
to an individual or group of individuals; [and]
[(j)] (X) If the principal is a defendant, THE WEIGHT OF THE EVIDENCE
AGAINST THE PRINCIPAL IN THE PENDING CRIMINAL ACTION AND ANY OTHER
FACTOR INDICATING PROBABILITY OR IMPROBABILITY OF CONVICTION; OR, in the
case of an application for [a securing order] BAIL OR RECOGNIZANCE pend-
ing appeal, the merit or lack of merit of the appeal; AND
(XI) IF THE PRINCIPAL IS A DEFENDANT, THE SENTENCE WHICH MAY BE OR HAS
BEEN IMPOSED UPON CONVICTION.
2. A principal is entitled to representation by counsel under this
chapter in preparing an application for release, when a securing order
is being considered and when a securing order is being reviewed for
modification, revocation or termination. If the principal is financially
unable to obtain counsel, counsel shall be assigned to the principal.
3. In cases other than as described in subdivision four of this
section, the court shall release the principal pending trial on the
principal's own recognizance, unless the court finds on the record or in
writing that release on the principal's own recognizance will not
reasonably assure the principal's return to court. In such instances,
S. 4461 6
the court shall release the principal under non-monetary conditions as
provided for in subdivision three-a of section 500.10 of this title that
will reasonably assure the principal's return to court. The court shall
explain its choice of securing order on the record or in writing.
4. Where the principal stands charged with a qualifying offense, the
court, unless otherwise prohibited by law, may in its discretion release
the principal pending trial on the principal's own recognizance or under
non-monetary conditions, fix bail, or order non-monetary conditions in
conjunction with fixing bail, or, where the defendant is charged with a
qualifying offense which is a felony, the court may commit the principal
to the custody of the sheriff. A principal stands charged with a quali-
fying offense for the purposes of this subdivision when [he or she] THE
PRINCIPAL stands charged with:
(a) a felony enumerated in section 70.02 of the penal law, other than
robbery in the second degree as defined in subdivision one of section
160.10 of the penal law, provided, however, that burglary in the second
degree as defined in subdivision two of section 140.25 of the penal law
shall be a qualifying offense only where the defendant is charged with
entering the living area of the dwelling;
(b) a crime involving witness intimidation under section 215.15 of the
penal law;
(c) a crime involving witness tampering under section 215.11, 215.12
or 215.13 of the penal law;
(d) a class A felony defined in the penal law, provided that for class
A felonies under article two hundred twenty of the penal law, only class
A-I felonies shall be a qualifying offense;
(e) a sex trafficking offense defined in section 230.34 or 230.34-a of
the penal law, or a felony sex offense defined in section 70.80 of the
penal law, or a crime involving incest as defined in section 255.25,
255.26 or 255.27 of such law, or a misdemeanor defined in article one
hundred thirty of such law;
(f) conspiracy in the second degree as defined in section 105.15 of
the penal law, where the underlying allegation of such charge is that
the defendant conspired to commit a class A felony defined in article
one hundred twenty-five of the penal law;
(g) money laundering in support of terrorism in the first degree as
defined in section 470.24 of the penal law; money laundering in support
of terrorism in the second degree as defined in section 470.23 of the
penal law; money laundering in support of terrorism in the third degree
as defined in section 470.22 of the penal law; money laundering in
support of terrorism in the fourth degree as defined in section 470.21
of the penal law; or a felony crime of terrorism as defined in article
four hundred ninety of the penal law, other than the crime defined in
section 490.20 of such law;
(h) criminal contempt in the second degree as defined in subdivision
three of section 215.50 of the penal law, criminal contempt in the first
degree as defined in subdivision (b), (c) or (d) of section 215.51 of
the penal law or aggravated criminal contempt as defined in section
215.52 of the penal law, and the underlying allegation of such charge of
criminal contempt in the second degree, criminal contempt in the first
degree or aggravated criminal contempt is that the defendant violated a
duly served order of protection where the protected party is a member of
the defendant's same family or household as defined in subdivision one
of section 530.11 of this title;
(i) facilitating a sexual performance by a child with a controlled
substance or alcohol as defined in section 263.30 of the penal law, use
S. 4461 7
of a child in a sexual performance as defined in section 263.05 of the
penal law or luring a child as defined in subdivision one of section
120.70 of the penal law, promoting an obscene sexual performance by a
child as defined in section 263.10 of the penal law or promoting a sexu-
al performance by a child as defined in section 263.15 of the penal law;
(j) any crime that is alleged to have caused the death of another
person;
(k) criminal obstruction of breathing or blood circulation as defined
in section 121.11 of the penal law, strangulation in the second degree
as defined in section 121.12 of the penal law or unlawful imprisonment
in the first degree as defined in section 135.10 of the penal law, and
is alleged to have committed the offense against a member of the defend-
ant's same family or household as defined in subdivision one of section
530.11 of this title;
(l) aggravated vehicular assault as defined in section 120.04-a of the
penal law or vehicular assault in the first degree as defined in section
120.04 of the penal law;
(m) assault in the third degree as defined in section 120.00 of the
penal law or arson in the third degree as defined in section 150.10 of
the penal law, when such crime is charged as a hate crime as defined in
section 485.05 of the penal law;
(n) aggravated assault upon a person less than eleven years old as
defined in section 120.12 of the penal law or criminal possession of a
weapon on school grounds as defined in section 265.01-a of the penal
law;
(o) grand larceny in the first degree as defined in section 155.42 of
the penal law, enterprise corruption as defined in section 460.20 of the
penal law, or money laundering in the first degree as defined in section
470.20 of the penal law;
(p) failure to register as a sex offender pursuant to section one
hundred sixty-eight-t of the correction law or endangering the welfare
of a child as defined in subdivision one of section 260.10 of the penal
law, where the defendant is required to maintain registration under
article six-C of the correction law and designated a level three offen-
der pursuant to subdivision six of section one hundred sixty-eight-l of
the correction law;
(q) a crime involving bail jumping under section 215.55, 215.56 or
215.57 of the penal law, or a crime involving escaping from custody
under section 205.05, 205.10 or 205.15 of the penal law;
(r) any felony offense committed by the principal while serving a
sentence of probation or while released to post release supervision;
(s) a felony, where the defendant qualifies for sentencing on such
charge as a persistent felony offender pursuant to section 70.10 of the
penal law;
(t) any felony or class A misdemeanor involving harm to an identifi-
able person or property, or any charge of criminal possession of a
firearm as defined in section 265.01-b of the penal law, where such
charge arose from conduct occurring while the defendant was released on
[his or her] THE DEFENDANT'S own recognizance, released under condi-
tions, or had yet to be arraigned after the issuance of a desk appear-
ance ticket for a separate felony or class A misdemeanor involving harm
to an identifiable person or property, or any charge of criminal
possession of a firearm as defined in section 265.01-b of the penal law,
provided, however, that the prosecutor must show reasonable cause to
believe that the defendant committed the instant crime and any underly-
ing crime. For the purposes of this subparagraph, any of the underlying
S. 4461 8
crimes need not be a qualifying offense as defined in this subdivision.
For the purposes of this paragraph, "harm to an identifiable person or
property" shall include but not be limited to theft of or damage to
property. However, based upon a review of the facts alleged in the accu-
satory instrument, if the court determines that such theft is negligible
and does not appear to be in furtherance of other criminal activity, the
principal shall be released on [his or her] THE PRINCIPAL'S own recogni-
zance or under appropriate non-monetary conditions; or
(u) criminal possession of a weapon in the third degree as defined in
subdivision three of section 265.02 of the penal law or criminal sale of
a firearm to a minor as defined in section 265.16 of the penal law.
5. Notwithstanding the provisions of subdivisions three and four of
this section, with respect to any charge for which bail or remand is not
ordered, and for which the court would not or could not otherwise
require bail or remand, a defendant may, at any time, request that the
court set bail in a nominal amount requested by the defendant in the
form specified in paragraph (a) of subdivision one of section 520.10 of
this title; if the court is satisfied that the request is voluntary, the
court shall set such bail in such amount.
6.] When a securing order is revoked or otherwise terminated in the
course of an uncompleted action or proceeding but the principal's future
court attendance still is or may be required and the principal is still
under the control of a court, a new securing order must be issued. When
the court revokes or otherwise terminates a securing order which commit-
ted the principal to the custody of the sheriff, the court shall give
written notification to the sheriff of such revocation or termination of
the securing order.
§ 9. Section 510.20 of the criminal procedure law, as amended by
section 3 of part JJJ of chapter 59 of the laws of 2019, subdivision 1
and paragraph (b) of subdivision 2 as amended and subdivision 3 as added
by section 3 of subpart A of part VV of chapter 56 of the laws of 2023,
is amended to read as follows:
§ 510.20 Application for [a change in securing order] RECOGNIZANCE OR
BAIL; MAKING AND DETERMINATION THEREOF IN GENERAL.
1. Upon any occasion when a court [has issued] IS REQUIRED TO ISSUE a
securing order with respect to a principal [and the], OR AT ANY TIME
WHEN A principal is confined in the custody of the sheriff as a result
of the securing order or a previously issued securing order, the princi-
pal may make an application for recognizance[, release under non-mone-
tary conditions, bail, a reduction of bail, or imposition of non-mone-
tary conditions in conjunction with bail or a reduction of] OR bail.
2. [(a) The principal is entitled to representation by counsel in the
making and presentation of such application. If the principal is finan-
cially unable to obtain counsel, counsel shall be assigned to the prin-
cipal.
(b)] Upon such application, the principal must be accorded an opportu-
nity to be heard[, present evidence] and to contend that an order of
recognizance[, release under non-monetary conditions] or[, where author-
ized,] bail, a reduction of bail, or imposition of non-monetary condi-
tions in conjunction with bail or a reduction of bail, must or should
issue, that the court should release the principal on the principal's
own recognizance [or under non-monetary conditions] rather than fix
bail, [or where bail has been imposed, reduce the amount of bail] and
impose non-monetary conditions, where authorized under this title, and
that if bail is [authorized and] fixed it should be in a suggested
amount and form.
S. 4461 9
3. When an application for a change in securing order is brought under
this section and one or more of the charge or charges on which such
securing order was based have been dismissed and/or reduced such that
the securing order is no longer supported by the provisions of section
510.10 of this article, the court shall impose a new securing order in
accordance with such section.
§ 10. Section 510.30 of the criminal procedure law, as amended by
section 5 of part JJJ of chapter 59 of the laws of 2019, and subdivision
1 as amended by section 4 of subpart A of part VV of chapter 56 of the
laws of 2023, is amended to read as follows:
§ 510.30 Application for [securing order] RECOGNIZANCE OR BAIL; rules of
law and criteria controlling determination.
1. DETERMINATIONS OF APPLICATIONS FOR RECOGNIZANCE OR BAIL ARE NOT IN
ALL CASES DISCRETIONARY BUT ARE SUBJECT TO RULES, PRESCRIBED IN ARTICLE
FIVE HUNDRED THIRTY OF THIS TITLE AND OTHER PROVISIONS OF LAW RELATING
TO SPECIFIC KINDS OF CRIMINAL ACTIONS AND PROCEEDINGS, PROVIDING (A)
THAT IN SOME CIRCUMSTANCES SUCH AN APPLICATION MUST AS A MATTER OF LAW
BE GRANTED, (B) THAT IN OTHERS IT MUST AS A MATTER OF LAW BE DENIED AND
THE PRINCIPAL COMMITTED TO OR RETAINED IN THE CUSTODY OF THE SHERIFF,
AND (C) THAT IN OTHERS THE GRANTING OR DENIAL THEREOF IS A MATTER OF
JUDICIAL DISCRETION.
2. TO THE EXTENT THAT THE ISSUANCE OF AN ORDER OF RECOGNIZANCE OR BAIL
AND THE TERMS THEREOF ARE MATTERS OF DISCRETION RATHER THAN OF LAW, AN
APPLICATION IS DETERMINED ON THE BASIS OF THE FOLLOWING FACTORS AND
CRITERIA:
(A) With respect to any principal, [the court in all cases, unless
otherwise provided by law,] must impose a securing order in accordance
with section 510.10 of this article, and shall explain the basis for its
determination and choice of securing order on the record or in writing.
[2.] (B) Where the principal is a defendant-appellant in a pending
appeal from a judgment of conviction, the court must also consider the
likelihood of ultimate reversal of the judgment. A determination that
the appeal is palpably without merit alone justifies, but does not
require, a denial of the application, regardless of any determination
made with respect to the factors specified in [subdivision one of this
section] PARAGRAPH (A) OF THIS SUBDIVISION.
3. When bail or recognizance is ordered, the court shall inform the
principal, if the principal is a defendant charged with the commission
of a felony, that the release is conditional and that the court may
revoke the order of release and may be authorized to commit the princi-
pal to the custody of the sheriff in accordance with the provisions of
subdivision two of section 530.60 of this [chapter] TITLE if the princi-
pal commits a subsequent felony while at liberty upon such order.
§ 11. Section 510.40 of the criminal procedure law, as amended by
section 6 of part JJJ of chapter 59 of the laws of 2019, subdivision 3
and paragraph (b) of subdivision 4 as amended by section 5 of subpart A
of part VV of chapter 56 of the laws of 2023, and paragraph (c) of
subdivision 4 as amended by section 7 of part UU of chapter 56 of the
laws of 2020, is amended to read as follows:
§ 510.40 [Court notification to principal of conditions of release and
of alleged violations of conditions of release] APPLICATION
FOR RECOGNIZANCE OR BAIL; DETERMINATION THEREOF, FORM OF
SECURING ORDER AND EXECUTION THEREOF.
1. AN APPLICATION FOR RECOGNIZANCE OR BAIL MUST BE DETERMINED BY A
SECURING ORDER WHICH EITHER:
S. 4461 10
(A) GRANTS THE APPLICATION AND RELEASES THE PRINCIPAL ON THE PRINCI-
PAL'S OWN RECOGNIZANCE; OR
(B) GRANTS THE APPLICATION AND FIXES BAIL; OR
(C) DENIES THE APPLICATION AND COMMITS THE PRINCIPAL TO, OR RETAINS
THE PRINCIPAL IN, THE CUSTODY OF THE SHERIFF.
2. Upon ordering that a principal be released on the principal's own
recognizance, [or released under non-monetary conditions, or, if bail
has been fixed, upon the posting of bail,] the court must direct the
principal to appear in the criminal action or proceeding involved when-
ever the principal's attendance may be required and to [be] RENDER THE
PRINCIPAL at all times amenable to the orders and processes of the
court. If such principal is in the custody of the sheriff or at liberty
upon bail at the time of the order, the court must direct that the prin-
cipal be discharged from such custody or, as the case may be, that the
principal's bail be exonerated.
[2.] 3. Upon the issuance of an order fixing bail[, where authorized,]
and upon the posting thereof, the court must examine the bail to deter-
mine whether it complies with the order. If it does, the court must, in
the absence of some factor or circumstance which in law requires or
authorizes disapproval thereof, approve the bail and must issue a
certificate of release, authorizing the principal to be at liberty, and,
if the principal is in the custody of the sheriff at the time, directing
the sheriff to discharge the principal therefrom. If the bail fixed is
not posted, or is not approved after being posted, the court must order
that the principal be committed to the custody of the sheriff. [In the
event of any such non-approval, the court shall explain promptly in
writing the reasons therefor.
3. Non-monetary conditions of release shall be individualized and
established in writing by the court. At future court appearances, the
court shall consider a lessening of conditions or modification of condi-
tions to a less burdensome form based on the principal's compliance with
such conditions of release. In the event of alleged non-compliance with
the conditions of release in an important respect, pursuant to this
subdivision, additional conditions may be imposed by the court, on the
record or in writing, only after notice of the facts and circumstances
of such alleged non-compliance, reasonable under the circumstances,
affording the principal and the principal's attorney and the people an
opportunity to present relevant, admissible evidence, relevant witnesses
and to cross-examine witnesses, and a finding by clear and convincing
evidence that the principal violated a condition of release in an impor-
tant respect. Following such a finding, in determining whether to impose
additional conditions for non-compliance, the court shall consider and
may select conditions as provided for in subdivision three-a of section
500.10 of this title that will reasonably assure the defendant's return
to court. The court shall explain on the record or in writing the
reasons for its determination and for any changes to the conditions
imposed.
4. (a) Electronic monitoring of a principal's location may be ordered
only if the court finds, after notice, an opportunity to be heard and an
individualized determination explained on the record or in writing, that
the defendant qualifies for electronic monitoring in accordance with
subdivision twenty-one of section 500.10 of this title, and no other
realistic non-monetary condition or set of non-monetary conditions will
suffice to reasonably assure a principal's return to court.
(b) The specific method of electronic monitoring of the principal's
location must be approved by the court. The procedure and method of such
S. 4461 11
electronic monitoring shall reflect the findings of the individualized
determination warranting such imposition of electronic monitoring to
reasonably assure the principal's return to court, and shall be unobtru-
sive to the greatest extent practicable.
(c) Electronic monitoring of the location of a principal may be
conducted only by a public entity under the supervision and control of a
county or municipality or a non-profit entity under contract to the
county, municipality or the state. A county or municipality shall be
authorized to enter into a contract with another county or municipality
in the state to monitor principals under non-monetary conditions of
release in its county, but counties, municipalities and the state shall
not contract with any private for-profit entity for such purposes.
Counties, municipalities and the state may contract with a private for-
profit entity to supply electronic monitoring devices or other items,
provided that any interaction with persons under electronic monitoring
or the data produced by such monitoring shall be conducted solely by
employees of a county, municipality, the state, or a non-profit entity
under contract with such county, municipality or the state.
(d) Electronic monitoring of a principal's location may be for a maxi-
mum period of sixty days, and may be renewed for such period, after
notice, an opportunity to be heard and a de novo, individualized deter-
mination in accordance with this subdivision, which shall be explained
on the record or in writing.
A defendant subject to electronic location monitoring under this
subdivision shall be considered held or confined in custody for purposes
of section 180.80 of this chapter and shall be considered committed to
the custody of the sheriff for purposes of section 170.70 of the chap-
ter, as applicable.
5. If a principal is released under non-monetary conditions, the court
shall, on the record and in an individualized written document provided
to the principal, notify the principal, in plain language and a manner
sufficiently clear and specific:
(a) of any conditions to which the principal is subject, to serve as a
guide for the principal's conduct; and
(b) that the possible consequences for violation of such a condition
may include revocation of the securing order and the ordering of a more
restrictive securing order.]
§ 12. Sections 510.43 and 510.45 of the criminal procedure law are
REPEALED.
§ 13. Section 510.50 of the criminal procedure law, as amended by
section 9 of part JJJ of chapter 59 of the laws of 2019, is amended to
read as follows:
§ 510.50 Enforcement of securing order.
[1.] When the attendance of a principal confined in the custody of the
sheriff is required at the criminal action or proceeding at a particular
time and place, the court may compel such attendance by directing the
sheriff to produce the principal at such time and place. If the princi-
pal is at liberty on the principal's own recognizance [or non-monetary
conditions] or on bail, the principal's attendance may be achieved or
compelled by various methods, including notification and the issuance of
a bench warrant, prescribed by law in provisions governing such matters
with respect to the particular kind of action or proceeding involved.
[2. Except when the principal is charged with a new crime while at
liberty, absent relevant, credible evidence demonstrating that a princi-
pal's failure to appear for a scheduled court appearance was willful,
the court, prior to issuing a bench warrant for a failure to appear for
S. 4461 12
a scheduled court appearance, shall provide at least forty-eight hours
notice to the principal or the principal's counsel that the principal is
required to appear, in order to give the principal an opportunity to
appear voluntarily.]
§ 14. Paragraph (b) of subdivision 2 of section 520.10 of the criminal
procedure law, as amended by section 10 of part JJJ of chapter 59 of the
laws of 2019, is amended to read as follows:
(b) The court [shall] MAY direct that the bail be posted in any one of
[three] TWO or more of the forms specified in subdivision one of this
section, designated in the alternative, and may designate different
amounts varying with the forms[, except that one of the forms shall be
either an unsecured or partially secured surety bond, as selected by the
court].
§ 15. Section 530.10 of the criminal procedure law, as amended by
section 11 of part JJJ of chapter 59 of the laws of 2019, is amended to
read as follows:
§ 530.10 Order of recognizance [release under non-monetary conditions]
or bail; in general.
Under circumstances prescribed in this article, a court, upon applica-
tion of a defendant charged with or convicted of an offense, is required
[to issue a securing order] OR AUTHORIZED TO ORDER BAIL OR RECOGNIZANCE
for THE RELEASE OR PROSPECTIVE RELEASE OF such defendant during the
pendency of either:
1. A criminal action based upon such charge; or
2. An appeal taken by the defendant from a judgment of conviction or a
sentence or from an order of an intermediate appellate court affirming
or modifying a judgment of conviction or a sentence.
§ 16. Subdivision 4 of section 530.11 of the criminal procedure law,
as amended by section 12 of part JJJ of chapter 59 of the laws of 2019,
is amended to read as follows:
4. When a person is arrested for an alleged family offense or an
alleged violation of an order of protection or temporary order of
protection or arrested pursuant to a warrant issued by the supreme or
family court, and the supreme or family court, as applicable, is not in
session, such person shall be brought before a local criminal court in
the county of arrest or in the county in which such warrant is return-
able pursuant to article one hundred twenty of this chapter. Such local
criminal court may issue any order authorized under subdivision eleven
of section 530.12 of this article, section one hundred fifty-four-d or
one hundred fifty-five of the family court act or subdivision three-b of
section two hundred forty or subdivision two-a of section two hundred
fifty-two of the domestic relations law, in addition to discharging
other arraignment responsibilities as set forth in this chapter. In
making such order, the local criminal court shall consider [de novo] the
BAIL recommendation [and securing order], if any, made by the supreme or
family court as indicated on the warrant or certificate of warrant.
Unless the petitioner or complainant requests otherwise, the court, in
addition to scheduling further criminal proceedings, if any, regarding
such alleged family offense or violation allegation, shall make such
matter returnable in the supreme or family court, as applicable, on the
next day such court is in session.
§ 17. Subdivision 11 of section 530.12 of the criminal procedure law,
as amended by section 15 of part JJJ of chapter 59 of the laws of 2019,
is amended to read as follows:
11. If a defendant is brought before the court for failure to obey any
lawful order issued under this section, or an order of protection issued
S. 4461 13
by a court of competent jurisdiction in another state, territorial or
tribal jurisdiction, and if, after hearing, the court is satisfied by
competent proof that the defendant has willfully failed to obey any such
order, the court may:
(a) revoke an order of recognizance [or release under non-monetary
conditions] or revoke an order of bail or order forfeiture of such bail
and commit the defendant to custody; or
(b) restore the case to the calendar when there has been an adjourn-
ment in contemplation of dismissal and commit the defendant to custody;
or
(c) revoke a conditional discharge in accordance with section 410.70
of this chapter and impose probation supervision or impose a sentence of
imprisonment in accordance with the penal law based on the original
conviction; or
(d) revoke probation in accordance with section 410.70 of this chapter
and impose a sentence of imprisonment in accordance with the penal law
based on the original conviction. In addition, if the act which consti-
tutes the violation of the order of protection or temporary order of
protection is a crime or a violation the defendant may be charged with
and tried for that crime or violation.
§ 18. The opening paragraph of subdivision 1 of section 530.13 of the
criminal procedure law, as amended by section 14 of part JJJ of chapter
59 of the laws of 2019, is amended to read as follows:
When any criminal action is pending, and the court has not issued a
temporary order of protection pursuant to section 530.12 of this arti-
cle, the court, in addition to the other powers conferred upon it by
this chapter, may for good cause shown issue a temporary order of
protection in conjunction with any securing order COMMITTING THE DEFEND-
ANT TO THE CUSTODY OF THE SHERIFF OR AS A CONDITION OF A PRE-TRIAL
RELEASE, OR AS A CONDITION OF RELEASE ON BAIL or an adjournment in
contemplation of dismissal. In addition to any other conditions, such an
order may require that the defendant:
§ 19. Paragraph (a) of subdivision 8 of section 530.13 of the criminal
procedure law, as amended by section 13 of part JJJ of chapter 59 of the
laws of 2019, is amended to read as follows:
(a) revoke an order of recognizance[, release under non-monetary
conditions] or bail and commit the defendant to custody; or
§ 20. Section 530.20 of the criminal procedure law is REPEALED and a
new section 530.20 is added to read as follows:
§ 530.20 ORDER OF RECOGNIZANCE OR BAIL; BY LOCAL CRIMINAL COURT WHEN
ACTION IS PENDING THEREIN.
WHEN A CRIMINAL ACTION IS PENDING IN A LOCAL CRIMINAL COURT, SUCH
COURT, UPON APPLICATION OF A DEFENDANT, MUST OR MAY ORDER RECOGNIZANCE
OR BAIL AS FOLLOWS:
1. WHEN THE DEFENDANT IS CHARGED, BY INFORMATION, SIMPLIFIED INFORMA-
TION, PROSECUTOR'S INFORMATION OR MISDEMEANOR COMPLAINT, WITH AN OFFENSE
OR OFFENSES OF LESS THAN FELONY GRADE ONLY, THE COURT MUST ORDER RECOG-
NIZANCE OR BAIL.
2. WHEN THE DEFENDANT IS CHARGED, BY FELONY COMPLAINT, WITH A FELONY,
THE COURT MAY, IN ITS DISCRETION, ORDER RECOGNIZANCE OR BAIL EXCEPT AS
OTHERWISE PROVIDED IN THIS SUBDIVISION:
(A) A CITY COURT, A TOWN COURT OR A VILLAGE COURT MAY NOT ORDER RECOG-
NIZANCE OR BAIL WHEN (I) THE DEFENDANT IS CHARGED WITH A CLASS A FELONY,
OR (II) IT APPEARS THAT THE DEFENDANT HAS TWO PREVIOUS FELONY
CONVICTIONS;
S. 4461 14
(B) NO LOCAL CRIMINAL COURT MAY ORDER RECOGNIZANCE OR BAIL WITH
RESPECT TO A DEFENDANT CHARGED WITH A FELONY UNLESS AND UNTIL:
(I) THE DISTRICT ATTORNEY HAS BEEN HEARD IN THE MATTER OR, AFTER KNOW-
LEDGE OR NOTICE OF THE APPLICATION AND REASONABLE OPPORTUNITY TO BE
HEARD, HAS FAILED TO APPEAR AT THE PROCEEDING OR HAS OTHERWISE WAIVED
THE RIGHT TO DO SO; AND
(II) THE COURT HAS BEEN FURNISHED WITH A REPORT OF THE DIVISION OF
CRIMINAL JUSTICE SERVICES CONCERNING THE DEFENDANT'S CRIMINAL RECORD IF
ANY OR WITH A POLICE DEPARTMENT REPORT WITH RESPECT TO THE DEFENDANT'S
PRIOR ARREST RECORD. IF NEITHER REPORT IS AVAILABLE, THE COURT, WITH THE
CONSENT OF THE DISTRICT ATTORNEY, MAY DISPENSE WITH THIS REQUIREMENT;
PROVIDED, HOWEVER, THAT IN AN EMERGENCY, INCLUDING BUT NOT LIMITED TO A
SUBSTANTIAL IMPAIRMENT IN THE ABILITY OF SUCH DIVISION OR POLICE DEPART-
MENT TO TIMELY FURNISH SUCH REPORT, SUCH CONSENT SHALL NOT BE REQUIRED
IF, FOR REASONS STATED ON THE RECORD, THE COURT DEEMS IT UNNECESSARY.
WHEN THE COURT HAS BEEN FURNISHED WITH ANY SUCH REPORT OR RECORD, IT
SHALL FURNISH A COPY THEREOF TO COUNSEL FOR THE DEFENDANT OR, IF THE
DEFENDANT IS NOT REPRESENTED BY COUNSEL, TO THE DEFENDANT.
§ 21. The section heading and subdivisions 1 and 2 of section 530.30
of the criminal procedure law, as amended by section 17 of part JJJ of
chapter 59 of the laws of 2019, the closing paragraph of subdivision 1
as amended by section 7 of subpart A of part VV of chapter 56 of the
laws of 2023, are amended to read as follows:
Order of recognizance[, release under non-monetary conditions] or
bail; by superior court judge when action is pending in local criminal
court.
1. When a criminal action is pending in a local criminal court, other
than one consisting of a superior court judge sitting as such, a judge
of a superior court holding a term thereof in the county, upon applica-
tion of a defendant, may order recognizance[, release under non-monetary
conditions] or[, where authorized,] bail when such local criminal court:
(a) Lacks authority to issue such an order, pursuant to the relevant
provisions of section 530.20 of this article; or
(b) Has denied an application for recognizance[, release under non-
monetary conditions] or bail; or
(c) Has fixed bail[, where authorized,] which is excessive[; or
(d) Has set a securing order of release under non-monetary conditions
which are more restrictive than necessary to reasonably assure the
defendant's return to court].
In such case, such superior court judge may vacate the order of such
local criminal court and release the defendant on recognizance [or under
non-monetary conditions,] or [where authorized,] fix bail in a lesser
amount or in a less burdensome form[, or order non-monetary conditions
in conjunction with fixing bail, including fixing bail in a lesser
amount or in a less burdensome form, the determination for which shall
be made in accordance with section 510.10 of this title. The court shall
explain the basis for its determination and choice of securing order on
the record or in writing].
2. Notwithstanding the provisions of subdivision one of this section,
when the defendant is charged with a felony in a local criminal court, a
superior court judge may not order recognizance, [release under non-mon-
etary conditions] or[, where authorized,] bail unless and until the
district attorney has had an opportunity to be heard in the matter and
such judge [and counsel for the defendant have] HAS been furnished with
a report as described in subparagraph (ii) of paragraph (b) of subdivi-
sion two of section 530.20 of this article.
S. 4461 15
§ 22. Section 530.40 of the criminal procedure law is REPEALED and a
new section 530.40 is added to read as follows:
§ 530.40 ORDER OF RECOGNIZANCE OR BAIL; BY SUPERIOR COURT WHEN ACTION IS
PENDING THEREIN.
WHEN A CRIMINAL ACTION IS PENDING IN A SUPERIOR COURT, SUCH COURT,
UPON APPLICATION OF A DEFENDANT, MUST OR MAY ORDER RECOGNIZANCE OR BAIL
AS FOLLOWS:
1. WHEN THE DEFENDANT IS CHARGED WITH AN OFFENSE OR OFFENSES OF LESS
THAN FELONY GRADE ONLY, THE COURT MUST ORDER RECOGNIZANCE OR BAIL.
2. WHEN THE DEFENDANT IS CHARGED WITH A FELONY, THE COURT MAY, IN ITS
DISCRETION, ORDER RECOGNIZANCE OR BAIL. IN ANY SUCH CASE IN WHICH AN
INDICTMENT (A) HAS RESULTED FROM AN ORDER OF A LOCAL CRIMINAL COURT
HOLDING THE DEFENDANT FOR THE ACTION OF THE GRAND JURY, OR (B) WAS FILED
AT A TIME WHEN A FELONY COMPLAINT CHARGING THE SAME CONDUCT WAS PENDING
IN A LOCAL CRIMINAL COURT, AND IN WHICH SUCH LOCAL CRIMINAL COURT OR A
SUPERIOR COURT JUDGE HAS ISSUED AN ORDER OF RECOGNIZANCE OR BAIL WHICH
IS STILL EFFECTIVE, THE SUPERIOR COURT'S ORDER MAY BE IN THE FORM OF A
DIRECTION CONTINUING THE EFFECTIVENESS OF THE PREVIOUS ORDER.
3. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION,
A SUPERIOR COURT MAY NOT ORDER RECOGNIZANCE OR BAIL, OR PERMIT A DEFEND-
ANT TO REMAIN AT LIBERTY PURSUANT TO AN EXISTING ORDER, AFTER THE
DEFENDANT HAS BEEN CONVICTED OF EITHER: (A) A CLASS A FELONY OR (B) ANY
CLASS B OR CLASS C FELONY AS DEFINED IN ARTICLE ONE HUNDRED THIRTY OF
THE PENAL LAW COMMITTED OR ATTEMPTED TO BE COMMITTED BY A PERSON EIGH-
TEEN YEARS OF AGE OR OLDER AGAINST A PERSON LESS THAN EIGHTEEN YEARS OF
AGE. IN EITHER CASE THE COURT MUST COMMIT OR REMAND THE DEFENDANT TO THE
CUSTODY OF THE SHERIFF.
4. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION,
A SUPERIOR COURT MAY NOT ORDER RECOGNIZANCE OR BAIL WHEN THE DEFENDANT
IS CHARGED WITH A FELONY UNLESS AND UNTIL THE DISTRICT ATTORNEY HAS HAD
AN OPPORTUNITY TO BE HEARD IN THE MATTER AND SUCH COURT HAS BEEN
FURNISHED WITH A REPORT AS DESCRIBED IN SUBPARAGRAPH (II) OF PARAGRAPH
(B) OF SUBDIVISION TWO OF SECTION 530.20 OF THIS ARTICLE.
§ 23. Subdivision 1 of section 530.45 of the criminal procedure law,
as amended by section 9 of subpart A of part VV of chapter 56 of the
laws of 2023, is amended to read as follows:
1. When the defendant is at liberty in the course of a criminal action
as a result of a prior securing order and the court revokes such order
and then[, where authorized,] EITHER fixes no bail, fixes bail in a
greater amount or in a more burdensome form than was previously fixed,
or, in conjunction with the imposition of non-monetary conditions, fixes
bail in a greater amount or in a more burdensome form than was previous-
ly fixed and remands or commits defendant to the custody of the sheriff,
[or issues a more restrictive securing order,] a judge designated in
subdivision two of this section, upon application of the defendant
following conviction of an offense other than a class A felony or a
class B or class C felony offense as defined in article one hundred
thirty of the penal law committed or attempted to be committed by a
person eighteen years of age or older against a person less than eigh-
teen years of age, and before sentencing, may issue a securing order and
EITHER release the defendant on the defendant's own recognizance,
[release the defendant under non-monetary conditions,] or, [where
authorized,] fix bail[, which may be in conjunction with the imposition
of non-monetary conditions, fix bail] in a lesser amount or in a less
burdensome form[, which may be in conjunction with the imposition of
S. 4461 16
non-monetary conditions, or issue a less restrictive securing order,]
than fixed by the court in which the conviction was entered.
§ 24. Subdivision 2-a of section 530.45 of the criminal procedure law
is REPEALED.
§ 25. Section 530.50 of the criminal procedure law, as amended by
chapter 264 of the laws of 2003, subdivision 1 as designated by section
10 of part UU of chapter 56 of the laws of 2020, and subdivisions 2 and
3 as amended by section 10 of subpart A of part VV of chapter 56 of the
laws of 2023, is amended to read as follows:
§ 530.50 Order of recognizance or bail; during pendency of appeal.
1. A judge who is otherwise authorized pursuant to section 460.50 or
section 460.60 OF THIS CHAPTER to issue an order of recognizance or bail
pending the determination of an appeal, may do so unless the defendant
received a class A felony sentence or a sentence for any class B or
class C felony offense defined in article one hundred thirty of the
penal law committed or attempted to be committed by a person eighteen
years of age or older against a person less than eighteen years of age.
2. [Notwithstanding the provisions of subdivision four of section
510.10, paragraph (b) of subdivision one of section 530.20 and subdivi-
sion four of section 530.40 of this title, when a defendant charged with
an offense that is not such a qualifying offense applies, pending deter-
mination of an appeal, for an order of recognizance or release on non-
monetary conditions, where authorized, fixing bail, or ordering non-mon-
etary conditions in conjunction with fixing bail, a judge identified in
subdivision two of section 460.50 or paragraph (a) of subdivision one of
section 460.60 of this chapter may, in accordance with law, and except
as otherwise provided by law, issue a securing order: releasing the
defendant on the defendant's own recognizance or under non-monetary
conditions where authorized, fixing bail, or ordering non-monetary
conditions in conjunction with fixing bail, or remanding the defendant
to the custody of the sheriff where authorized.
3.] Where an appeal by the people has been taken from an order
dismissing one or more counts of an accusatory instrument for failure to
comply with a discovery order pursuant to subdivision twelve of section
450.20 of this chapter and the defendant is charged with a qualifying
offense in the remaining counts in the accusatory instrument, pending
determination of an appeal, the defendant may apply for an order of
recognizance or [release on non-monetary conditions, where authorized,]
fixing bail, or ordering non-monetary conditions in conjunction with
fixing bail. A judge identified in subdivision two of section 460.50 of
this chapter or paragraph (a) of subdivision one of section 460.60 of
this chapter may, in accordance with law, and except as otherwise
provided by law, issue a securing order releasing the defendant on the
defendant's own recognizance [or under non-monetary conditions where
authorized], fixing bail, [or ordering non-monetary conditions in
conjunction with fixing bail,] or remanding the defendant to the custody
of the sheriff where authorized.
§ 26. Section 530.60 of the criminal procedure law, as amended by
section 20 of part JJJ of chapter 59 of the laws of 2019, the opening
paragraph of paragraph (b), the closing paragraph of subparagraph (i) of
paragraph (d), subparagraph (ii) of paragraph (d) of subdivision 2 as
amended and subparagraph (iii) of paragraph (d) of subdivision 2 as
added by section 11 of subpart A of part VV of chapter 56 of the laws of
2023, is amended to read as follows:
§ 530.60 [Certain modifications of a securing order] ORDER OF RECOGNI-
ZANCE OR BAIL; REVOCATION THEREOF.
S. 4461 17
1. Whenever in the course of a criminal action or proceeding a defend-
ant is at liberty as a result of an order of recognizance[, release
under non-monetary conditions] or bail issued pursuant to this chapter,
and the court considers it necessary to review such order, [whether due
to a motion by the people or otherwise,] the court may, and [except as
provided in subdivision two of section 510.50 of this title concerning a
failure to appear in court,] by a bench warrant if necessary, require
the defendant to appear before the court. Upon such appearance, the
court, for good cause shown, may revoke the order of recognizance[,
release under non-monetary conditions,] or bail. If the defendant is
entitled to recognizance[, release under non-monetary conditions,] or
bail as a matter of right, the court must issue another such order. If
the defendant is not, the court may either issue such an order or commit
the defendant to the custody of the sheriff in accordance with this
section.
Where the defendant is committed to the custody of the sheriff and is
held on a felony complaint, a new period as provided in section 180.80
of this chapter shall commence to run from the time of the defendant's
commitment under this subdivision.
2. (a) Whenever in the course of a criminal action or proceeding a
defendant charged with the commission of a felony is at liberty as a
result of an order of recognizance, [release under non-monetary condi-
tions] or bail issued pursuant to this article it shall be grounds for
revoking such order that the court finds reasonable cause to believe the
defendant committed one or more specified class A or violent felony
offenses or intimidated a victim or witness in violation of section
215.15, 215.16 or 215.17 of the penal law while at liberty.
(b) [Except as provided in paragraph (a) of this subdivision or any
other law, whenever in the course of a criminal action or proceeding a
defendant charged with the commission of an offense is at liberty as a
result of a securing order issued pursuant to this article it shall be
grounds for revoking such order and imposing a new securing order in
accordance with paragraph (d) of this subdivision, the basis for which
shall be made on the record or in writing, in such criminal action or
proceeding when the court has found, by clear and convincing evidence,
that the defendant:
(i) persistently and willfully failed to appear after notice of sched-
uled appearances in the case before the court; or
(ii) violated an order of protection in the manner prohibited by
subdivision (b), (c) or (d) of section 215.51 of the penal law while at
liberty; or
(iii) stands charged in such criminal action or proceeding with a
misdemeanor or violation and, after being so charged, intimidated a
victim or witness in violation of section 215.15, 215.16 or 215.17 of
the penal law or tampered with a witness in violation of section 215.11,
215.12 or 215.13 of the penal law, law while at liberty; or
(iv) stands charged in such action or proceeding with a felony and,
after being so charged, committed a felony while at liberty.
(c)] Before revoking an order of recognizance[, release under non-mon-
etary conditions], or bail pursuant to this subdivision, the court must
hold a hearing and shall receive any relevant, admissible evidence not
legally privileged. The defendant may cross-examine witnesses and may
present relevant, admissible evidence on [his] THE DEFENDANT'S own
behalf. Such hearing may be consolidated with, and conducted at the same
time as, a felony hearing conducted pursuant to article one hundred
eighty of this chapter. A transcript of testimony taken before the grand
S. 4461 18
jury upon presentation of the subsequent offense shall be admissible as
evidence during the hearing. The district attorney may move to introduce
grand jury testimony of a witness in lieu of that witness' appearance at
the hearing.
[(d)] (C) Revocation of an order of recognizance[, release under non-
monetary conditions] or bail and a new securing order fixing bail or
commitment, as specified in this paragraph [and pursuant to this subdi-
vision] shall be for the following periods, EITHER:
(i) [Under paragraph (a) of this subdivision, revocation of the order
of recognizance, release under non-monetary conditions or, as the case
may be, bail, and a new securing order fixing bail or committing the
defendant to the custody of the sheriff shall be as follows:
(A)] For a period not to exceed ninety days exclusive of any periods
of adjournment requested by the defendant; or
[(B)] (II) Until the charges contained within the accusatory instru-
ment have been reduced or dismissed such that no count remains which
charges the defendant with commission of a felony; or
[(C)] (III) Until reduction or dismissal of the charges contained
within the accusatory instrument charging the subsequent offense such
that no count remains which charges the defendant with commission of a
class A or violent felony offense.
Upon expiration of any of the three periods specified within this
[subparagraph] PARAGRAPH, whichever is shortest, the court may grant or
deny release upon an order of bail or recognizance in accordance with
the provisions of this article. Upon conviction to an offense the
provisions of THIS article [five hundred thirty of this chapter] shall
apply;
[(ii) Under subparagraph (i) of paragraph (b) of this subdivision,
revocation of a previously issued securing order shall result in the
issuance of a new securing order which may, if otherwise authorized by
law, permit the principal's release on recognizance or release under
non-monetary conditions, but shall also render the defendant eligible
for an order fixing bail, or ordering non-monetary conditions in
conjunction with fixing bail, provided, however, that in accordance with
the principles in this title the court must impose a new securing order
in accordance with subdivision one of section 510.10 of this title, and
in imposing such order, may consider the circumstances warranting such
revocation. Nothing in this subparagraph shall be interpreted as short-
ening the period of detention, or requiring or authorizing any less
restrictive form of a securing order, which may be imposed pursuant to
any other law; and
(iii) Under subparagraphs (ii), (iii), and (iv) of paragraph (b) of
this subdivision, revocation of a previously issued securing order shall
result in the issuance of a new securing order which may, if otherwise
authorized by law, permit the principal's release on recognizance or
release under non-monetary conditions, but shall also render the defend-
ant eligible for an order fixing bail or ordering non-monetary condi-
tions in conjunction with fixing bail. In issuing the new securing
order, the court shall consider the kind and degree of control or
restriction necessary to reasonably assure the principal's return to
court and compliance with court conditions, and select a securing order
consistent with its determination, taking into account the factors
required to be considered under subdivision one of section 510.10 of
this title, the circumstances warranting such revocation, and the nature
and extent of the principal's noncompliance with previously ordered
non-monetary conditions of the securing order subject to revocation
S. 4461 19
under this subdivision. Nothing in this subparagraph shall be interpret-
ed as shortening the period of detention, or requiring or authorizing
any less restrictive form of a securing order, which may be imposed
pursuant to any other law.]
§ 27. Paragraph (a) of subdivision 9 of section 216.05 of the criminal
procedure law, as amended by chapter 435 of the laws of 2021, is amended
to read as follows:
(a) If at any time during the defendant's participation in the judi-
cial diversion program, the court has reasonable grounds to believe that
the defendant has violated a release condition [in an important respect]
or has [willfully] failed to appear before the court as requested, the
court [except as provided in subdivision two of section 510.50 of this
chapter regarding a failure to appear,] shall direct the defendant to
appear or issue a bench warrant to a police officer or an appropriate
peace officer directing [him or her] SUCH OFFICER to take the defendant
into custody and bring the defendant before the court without unneces-
sary delay; provided, however, that under no circumstances shall a
defendant who requires treatment for opioid use be deemed to have
violated a release condition on the basis of [his or her] THE DEFEND-
ANT'S participation in medically prescribed drug treatments under the
care of a health care professional licensed or certified under title
eight of the education law, acting within [his or her] SUCH HEALTH CARE
PROFESSIONAL'S lawful scope of practice. The [relevant] provisions of
SUBDIVISION ONE OF section 530.60 of this chapter relating to [issuance
of securing orders] REVOCATION OF RECOGNIZANCE OR BAIL shall apply to
such proceedings under this subdivision.
§ 28. Section 410.60 of the criminal procedure law, as amended by
section 23 of part JJJ of chapter 59 of the laws of 2019, is amended to
read as follows:
§ 410.60 Appearance before court.
A person who has been taken into custody pursuant to section 410.40 or
[section] 410.50 of this article for violation of a condition of a
sentence of probation or a sentence of conditional discharge must forth-
with be brought before the court that imposed the sentence. Where a
violation of probation petition and report has been filed and the person
has not been taken into custody nor has a warrant been issued, an
initial court appearance shall occur within ten business days of the
court's issuance of a notice to appear. If the court has reasonable
cause to believe that such person has violated a condition of the
sentence, it may commit such person to the custody of the sheriff[,] OR
fix bail[, release such person under non-monetary conditions] or release
such person on such person's own recognizance for future appearance at a
hearing to be held in accordance with section 410.70 of this article. If
the court does not have reasonable cause to believe that such person has
violated a condition of the sentence, it must direct that such person be
released.
§ 29. Subdivision 3 of section 620.50 of the criminal procedure law,
as amended by section 24 of part JJJ of chapter 59 of the laws of 2019,
is amended to read as follows:
3. A material witness order must be executed as follows:
(a) If the bail is posted and approved by the court, the witness must,
as provided in subdivision [two] THREE of section 510.40 of this part,
be released and be permitted to remain at liberty; provided that, where
the bail is posted by a person other than the witness [himself], [he]
THE WITNESS may not be so released except upon [his] THE WITNESS'S
signed written consent thereto;
S. 4461 20
(b) If the bail is not posted, or if though posted it is not approved
by the court, the witness must, as provided in subdivision [two] THREE
of section 510.40 of this part, be committed to the custody of the sher-
iff.
§ 30. Article 245 of the criminal procedure law is REPEALED.
§ 31. The criminal procedure law is amended by adding a new article
240 to read as follows:
ARTICLE 240
DISCOVERY
SECTION 240.10 DEFINITION OF TERMS.
240.20 UPON DEMAND OF DEFENDANT.
240.30 UPON DEMAND OF PROSECUTOR.
240.35 REFUSAL OF DEMAND.
240.40 UPON COURT ORDER.
240.43 DISCLOSURE OF PRIOR UNCHARGED CRIMINAL, VICIOUS OR IMMOR-
AL ACTS.
240.44 UPON PRE-TRIAL HEARING.
240.45 UPON TRIAL, OF PRIOR STATEMENTS AND CRIMINAL HISTORY OF
WITNESSES.
240.50 PROTECTIVE ORDERS.
240.60 CONTINUING DUTY TO DISCLOSE.
240.70 SANCTIONS; FEES.
240.75 CERTAIN VIOLATIONS.
240.80 WHEN DEMAND, REFUSAL AND COMPLIANCE MADE.
240.90 MOTION PROCEDURE.
§ 240.10 DEFINITION OF TERMS. THE FOLLOWING DEFINITIONS ARE APPLICABLE
TO THIS ARTICLE:
1. "DEMAND TO PRODUCE" MEANS A WRITTEN NOTICE SERVED BY AND ON A
PARTY TO A CRIMINAL ACTION, WITHOUT LEAVE OF THE COURT, DEMANDING TO
INSPECT PROPERTY PURSUANT TO THIS ARTICLE AND GIVING REASONABLE NOTICE
OF THE TIME AT WHICH THE DEMANDING PARTY WISHES TO INSPECT THE PROPERTY
DESIGNATED.
2. "ATTORNEYS' WORK PRODUCT" MEANS PROPERTY TO THE EXTENT THAT IT
CONTAINS THE OPINIONS, THEORIES OR CONCLUSIONS OF THE PROSECUTOR,
DEFENSE COUNSEL OR MEMBERS OF THEIR LEGAL STAFFS.
3. "PROPERTY" MEANS ANY EXISTING TANGIBLE PERSONAL OR REAL PROPERTY,
INCLUDING, BUT NOT LIMITED TO, BOOKS, RECORDS, REPORTS, MEMORANDA,
PAPERS, PHOTOGRAPHS, TAPES OR OTHER ELECTRONIC RECORDINGS, ARTICLES OF
CLOTHING, FINGERPRINTS, BLOOD SAMPLES, FINGERNAIL SCRAPINGS OR
HANDWRITING SPECIMENS, BUT EXCLUDING ATTORNEYS' WORK PRODUCT.
4. "AT THE TRIAL" MEANS AS PART OF THE PEOPLE'S OR THE DEFENDANT'S
DIRECT CASE.
§ 240.20 UPON DEMAND OF DEFENDANT.
1. EXCEPT TO THE EXTENT PROTECTED BY COURT ORDER, UPON A DEMAND TO
PRODUCE BY A DEFENDANT AGAINST WHOM AN INDICTMENT, SUPERIOR COURT
INFORMATION, PROSECUTOR'S INFORMATION, INFORMATION, OR SIMPLIFIED INFOR-
MATION CHARGING A MISDEMEANOR IS PENDING, THE PROSECUTOR SHALL DISCLOSE
TO THE DEFENDANT AND MAKE AVAILABLE FOR INSPECTION, PHOTOGRAPHING,
COPYING OR TESTING, THE FOLLOWING PROPERTY:
(A) ANY WRITTEN, RECORDED OR ORAL STATEMENT OF THE DEFENDANT, AND OF
A CO-DEFENDANT TO BE TRIED JOINTLY, MADE, OTHER THAN IN THE COURSE OF
THE CRIMINAL TRANSACTION, TO A PUBLIC SERVANT ENGAGED IN LAW ENFORCEMENT
ACTIVITY OR TO A PERSON THEN ACTING UNDER THE PUBLIC SERVANT'S DIRECTION
OR IN COOPERATION WITH THE PUBLIC SERVANT;
S. 4461 21
(B) ANY TRANSCRIPT OF TESTIMONY RELATING TO THE CRIMINAL ACTION OR
PROCEEDING PENDING AGAINST THE DEFENDANT, GIVEN BY THE DEFENDANT, OR BY
A CO-DEFENDANT TO BE TRIED JOINTLY, BEFORE ANY GRAND JURY;
(C) ANY WRITTEN REPORT OR DOCUMENT, OR PORTION THEREOF, CONCERNING A
PHYSICAL OR MENTAL EXAMINATION, OR SCIENTIFIC TEST OR EXPERIMENT,
RELATING TO THE CRIMINAL ACTION OR PROCEEDING WHICH WAS MADE BY, OR AT
THE REQUEST OR DIRECTION OF A PUBLIC SERVANT ENGAGED IN LAW ENFORCEMENT
ACTIVITY, OR WHICH WAS MADE BY A PERSON WHOM THE PROSECUTOR INTENDS TO
CALL AS A WITNESS AT TRIAL, OR WHICH THE PEOPLE INTEND TO INTRODUCE AT
TRIAL;
(D) ANY PHOTOGRAPH OR DRAWING RELATING TO THE CRIMINAL ACTION OR
PROCEEDING WHICH WAS MADE OR COMPLETED BY A PUBLIC SERVANT ENGAGED IN
LAW ENFORCEMENT ACTIVITY, OR WHICH WAS MADE BY A PERSON WHOM THE
PROSECUTOR INTENDS TO CALL AS A WITNESS AT TRIAL, OR WHICH THE PEOPLE
INTEND TO INTRODUCE AT TRIAL;
(E) ANY PHOTOGRAPH, PHOTOCOPY OR OTHER REPRODUCTION MADE BY OR AT THE
DIRECTION OF A POLICE OFFICER, PEACE OFFICER OR PROSECUTOR OF ANY
PROPERTY PRIOR TO ITS RELEASE PURSUANT TO THE PROVISIONS OF SECTION
450.10 OF THE PENAL LAW, IRRESPECTIVE OF WHETHER THE PEOPLE INTEND TO
INTRODUCE AT TRIAL THE PROPERTY OR THE PHOTOGRAPH, PHOTOCOPY OR OTHER
REPRODUCTION;
(F) ANY OTHER PROPERTY OBTAINED FROM THE DEFENDANT, OR A CO-DEFENDANT
TO BE TRIED JOINTLY;
(G) ANY TAPES OR OTHER ELECTRONIC RECORDINGS WHICH THE PROSECUTOR
INTENDS TO INTRODUCE AT TRIAL, IRRESPECTIVE OF WHETHER SUCH RECORDING
WAS MADE DURING THE COURSE OF THE CRIMINAL TRANSACTION;
(H) ANYTHING REQUIRED TO BE DISCLOSED, PRIOR TO TRIAL, TO THE
DEFENDANT BY THE PROSECUTOR, PURSUANT TO THE CONSTITUTION OF THIS STATE
OR OF THE UNITED STATES;
(I) THE APPROXIMATE DATE, TIME AND PLACE OF THE OFFENSE CHARGED AND OF
DEFENDANT'S ARREST;
(J) IN ANY PROSECUTION UNDER SECTION 156.05 OR 156.10 OF THE PENAL
LAW, THE TIME, PLACE AND MANNER OF NOTICE GIVEN PURSUANT TO SUBDIVI-
SION SIX OF SECTION 156.00 OF SUCH LAW; AND
(K) IN ANY PROSECUTION COMMENCED IN A MANNER SET FORTH IN THIS
SUBDIVISION ALLEGING A VIOLATION OF THE VEHICLE AND TRAFFIC LAW, IN
ADDITION TO ANY MATERIAL REQUIRED TO BE DISCLOSED PURSUANT TO THIS
ARTICLE, ANY OTHER PROVISION OF LAW, OR THE CONSTITUTION OF THIS STATE
OR OF THE UNITED STATES, ANY WRITTEN REPORT OR DOCUMENT, OR PORTION
THEREOF, CONCERNING A PHYSICAL EXAMINATION, A SCIENTIFIC TEST OR
EXPERIMENT, INCLUDING THE MOST RECENT RECORD OF INSPECTION, OR
CALIBRATION OR REPAIR OF MACHINES OR INSTRUMENTS UTILIZED TO PERFORM
SUCH SCIENTIFIC TESTS OR EXPERIMENTS AND THE CERTIFICATION CERTIFICATE,
IF ANY, HELD BY THE OPERATOR OF THE MACHINE OR INSTRUMENT, WHICH TESTS
OR EXAMINATIONS WERE MADE BY OR AT THE REQUEST OR DIRECTION OF A PUBLIC
SERVANT ENGAGED IN LAW ENFORCEMENT ACTIVITY OR WHICH WAS MADE BY A
PERSON WHOM THE PROSECUTOR INTENDS TO CALL AS A WITNESS AT TRIAL, OR
WHICH THE PEOPLE INTEND TO INTRODUCE AT TRIAL.
2. THE PROSECUTOR SHALL MAKE A DILIGENT, GOOD FAITH EFFORT TO
ASCERTAIN THE EXISTENCE OF DEMANDED PROPERTY AND TO CAUSE SUCH PROPERTY
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
DEMANDED MATERIAL WHICH THE DEFENDANT MAY THEREBY OBTAIN.
§ 240.30 UPON DEMAND OF PROSECUTOR.
S. 4461 22
1. EXCEPT TO THE EXTENT PROTECTED BY COURT ORDER, UPON A DEMAND TO
PRODUCE BY THE PROSECUTOR, A DEFENDANT AGAINST WHOM AN INDICTMENT,
SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFORMATION, OR
SIMPLIFIED INFORMATION CHARGING A MISDEMEANOR IS PENDING SHALL DISCLOSE
AND MAKE AVAILABLE FOR INSPECTION, PHOTOGRAPHING, COPYING OR TESTING,
SUBJECT TO CONSTITUTIONAL LIMITATIONS:
(A) ANY WRITTEN REPORT OR DOCUMENT, OR PORTION THEREOF, CONCERNING A
PHYSICAL OR MENTAL EXAMINATION, OR SCIENTIFIC TEST, EXPERIMENT, OR
COMPARISONS, MADE BY OR AT THE REQUEST OR DIRECTION OF, THE DEFENDANT,
IF THE DEFENDANT INTENDS TO INTRODUCE SUCH REPORT OR DOCUMENT AT TRIAL,
OR IF THE DEFENDANT HAS FILED A NOTICE OF INTENT TO PROFFER PSYCHIATRIC
EVIDENCE AND SUCH REPORT OR DOCUMENT RELATES THERETO, OR IF SUCH REPORT
OR DOCUMENT WAS MADE BY A PERSON, OTHER THAN DEFENDANT, WHOM DEFENDANT
INTENDS TO CALL AS A WITNESS AT TRIAL; AND
(B) ANY PHOTOGRAPH, DRAWING, TAPE OR OTHER ELECTRONIC RECORDING WHICH
THE DEFENDANT INTENDS TO INTRODUCE AT TRIAL.
2. THE DEFENSE SHALL MAKE A DILIGENT GOOD FAITH EFFORT TO MAKE SUCH
PROPERTY AVAILABLE FOR DISCOVERY WHERE IT EXISTS BUT THE PROPERTY IS NOT
WITHIN ITS POSSESSION, CUSTODY OR CONTROL, PROVIDED, THAT THE DEFENDANT
SHALL NOT BE REQUIRED TO OBTAIN BY SUBPOENA DUCES TECUM DEMANDED
MATERIAL THAT THE PROSECUTOR MAY THEREBY OBTAIN.
§ 240.35 REFUSAL OF DEMAND.
NOTWITHSTANDING THE PROVISIONS OF SECTIONS 240.20 AND 240.30 OF THIS
ARTICLE, THE PROSECUTOR OR THE DEFENDANT, AS THE CASE MAY BE, MAY REFUSE
TO DISCLOSE ANY INFORMATION WHICH IS REASONABLY BELIEVED NOT DISCOVERA-
BLE BY A DEMAND TO PRODUCE, PURSUANT TO SECTION 240.20 OR 240.30 OF THIS
ARTICLE AS THE CASE MAY BE, OR FOR WHICH SUCH PERSON REASONABLY BELIEVES
A PROTECTIVE ORDER WOULD BE WARRANTED. SUCH REFUSAL SHALL BE MADE IN A
WRITING, WHICH SHALL SET FORTH THE GROUNDS OF SUCH BELIEF AS FULLY AS
POSSIBLE, CONSISTENT WITH THE OBJECTIVE OF THE REFUSAL. THE WRITING
SHALL BE SERVED UPON THE DEMANDING PARTY AND A COPY SHALL BE FILED WITH
THE COURT.
§ 240.40 UPON COURT ORDER.
NOTWITHSTANDING THE PROVISIONS OF SECTIONS 240.20 AND 240.30 OF
THIS ARTICLE, THE PROSECUTOR OR THE DEFENDANT, AS THE CASE MAY BE, MAY
REFUSE TO DISCLOSE ANY INFORMATION WHICH IS REASONABLY BELIEVED NOT
DISCOVERABLE BY A DEMAND TO PRODUCE, PURSUANT TO SECTION 240.20 OR
240.30 OF THIS ARTICLE AS THE CASE MAY BE, OR FOR WHICH SUCH PERSON
REASONABLY BELIEVES A PROTECTIVE ORDER WOULD BE WARRANTED. SUCH REFUSAL
SHALL BE MADE IN A WRITING, WHICH SHALL SET FORTH THE GROUNDS OF SUCH
BELIEF AS FULLY AS POSSIBLE, CONSISTENT WITH THE OBJECTIVE OF THE
REFUSAL. THE WRITING SHALL BE SERVED UPON THE DEMANDING PARTY AND A
COPY SHALL BE FILED WITH THE COURT.
§ 240.43 DISCLOSURE OF PRIOR UNCHARGED CRIMINAL, VICIOUS OR IMMORAL
ACTS.
1. 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 UPON A DEMAND PURSUANT TO SECTION 240.20
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 SUBDIVISION
ONE OF SECTION 240.70 OF THIS ARTICLE AS TO ANY MATERIAL NOT DISCLOSED
UPON DEMAND PURSUANT TO SECTION 240.20 OF THIS ARTICLE WHERE THE PROSE-
S. 4461 23
CUTOR HAS FAILED TO SERVE A TIMELY WRITTEN REFUSAL PURSUANT TO
SECTION 240.35 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 PREPARATION OF THE DEFENSE, AND THAT THE
REQUEST IS REASONABLE; AND (D) WHERE PROPERTY IN THE PEOPLE'S
POSSESSION, CUSTODY, OR CONTROL THAT CONSISTS OF A DEOXYRIBONU-
CLEIC ACID ("DNA") PROFILE OBTAINED FROM PROBATIVE BIOLOGICAL MATERIAL
GATHERED IN CONNECTION WITH THE INVESTIGATION 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 ENFORCEMENT 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
THE 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 DATABANK IN WHICH THE PROFILE THAT IS SEARCHED IS NOT
UPLOADED TO OR MAINTAINED IN THE DATABANK. UPON GRANTING THE MOTION
PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION, 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 IS INTENDED TO BE INTRODUCED AT THE TRIAL.
2. UPON MOTION OF THE PROSECUTOR, AND SUBJECT TO CONSTITUTIONAL
LIMITATION, THE COURT IN WHICH AN INDICTMENT, SUPERIOR COURT INFORMA-
TION, PROSECUTOR'S INFORMATION, INFORMATION, OR SIMPLIFIED INFORMATION
CHARGING A MISDEMEANOR IS PENDING: (A) MUST ORDER DISCOVERY AS TO ANY
PROPERTY NOT DISCLOSED UPON A DEMAND PURSUANT TO SECTION 240.30 OF
THIS ARTICLE, IF IT FINDS THAT THE DEFENDANT'S REFUSAL TO DISCLOSE
SUCH MATERIAL IS NOT JUSTIFIED; AND (B) MAY ORDER THE DEFENDANT TO
PROVIDE NON-TESTIMONIAL EVIDENCE. SUCH ORDER MAY, AMONG OTHER THINGS,
REQUIRE THE DEFENDANT TO:
(I) APPEAR IN A LINE-UP;
(II) SPEAK FOR IDENTIFICATION BY WITNESS OR POTENTIAL WITNESS;
(III) BE FINGERPRINTED;
(IV) POSE FOR PHOTOGRAPHS NOT INVOLVING REENACTMENT OF AN EVENT;
(V) PERMIT THE TAKING OF SAMPLES OF BLOOD, HAIR OR OTHER MATERIALS
FROM THE DEFENDANT'S BODY IN A MANNER NOT INVOLVING AN UNREASONABLE
INTRUSION THEREOF OR A RISK OF SERIOUS PHYSICAL INJURY THERETO;
(VI) PROVIDE SPECIMENS OF THE DEFENDANT'S HANDWRITING;
(VII) SUBMIT TO A REASONABLE PHYSICAL OR MEDICAL INSPECTION OF THE
DEFENDANT'S BODY.
THIS SUBDIVISION SHALL NOT BE CONSTRUED TO LIMIT, EXPAND, OR OTHERWISE
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 CONSTITUTION OF THIS STATE
OR OF THE UNITED STATES. THIS SECTION SHALL NOT BE CONSTRUED TO LIMIT OR
OTHERWISE AFFECT THE ADMINISTRATION OF A CHEMICAL TEST WHERE OTHER-
S. 4461 24
WISE AUTHORIZED PURSUANT TO SECTION ONE THOUSAND ONE HUNDRED NINETY-
FOUR-A OF THE VEHICLE AND TRAFFIC LAW.
3. AN ORDER PURSUANT TO THIS SECTION MAY BE DENIED, LIMITED OR
CONDITIONED AS PROVIDED IN SECTION 240.50 OF THIS ARTICLE.
§ 240.44 UPON PRE-TRIAL HEARING.
SUBJECT TO A PROTECTIVE ORDER, AT A PRE-TRIAL HEARING HELD IN A
CRIMINAL COURT AT WHICH A WITNESS IS CALLED TO TESTIFY, EACH PARTY,
PRIOR TO THE COMMENCEMENT OF THE DIRECT EXAMINATION OF EACH OF ITS
WITNESSES, SHALL, UPON REQUEST OF THE OTHER PARTY, MAKE AVAILABLE TO
THAT PARTY TO THE EXTENT NOT PREVIOUSLY DISCLOSED:
1. ANY WRITTEN OR RECORDED STATEMENT, INCLUDING ANY TESTIMONY BEFORE A
GRAND JURY, MADE BY SUCH WITNESS OTHER THAN THE DEFENDANT WHICH RELATES
TO THE SUBJECT MATTER OF THE WITNESS'S TESTIMONY.
2. A RECORD OF A JUDGMENT OF CONVICTION OF SUCH WITNESS OTHER THAN THE
DEFENDANT IF THE RECORD OF CONVICTION IS KNOWN BY THE PROSECUTOR OR
DEFENDANT, AS THE CASE MAY BE, TO EXIST.
3. THE EXISTENCE OF ANY PENDING CRIMINAL ACTION AGAINST SUCH WITNESS
OTHER THAN THE DEFENDANT IF THE PENDING CRIMINAL ACTION IS KNOWN BY THE
PROSECUTOR OR DEFENDANT, AS THE CASE MAY BE, TO EXIST.
§ 240.45 UPON TRIAL, OF PRIOR STATEMENTS AND CRIMINAL HISTORY OF
WITNESSES.
1. AFTER THE JURY HAS BEEN SWORN AND BEFORE THE PROSECUTOR'S OPENING
ADDRESS, OR IN THE CASE OF A SINGLE JUDGE TRIAL AFTER COMMENCEMENT AND
BEFORE SUBMISSION OF EVIDENCE, THE PROSECUTOR SHALL, SUBJECT TO A
PROTECTIVE ORDER, MAKE AVAILABLE TO THE DEFENDANT:
(A) ANY WRITTEN OR RECORDED STATEMENT, INCLUDING ANY TESTIMONY BEFORE
A GRAND JURY AND AN EXAMINATION VIDEOTAPED PURSUANT TO SECTION 190.32 OF
THIS PART, MADE BY A PERSON WHOM THE PROSECUTOR INTENDS TO CALL AS A
WITNESS AT TRIAL, AND WHICH RELATES TO THE SUBJECT MATTER OF THE
WITNESS'S TESTIMONY;
(B) A RECORD OF JUDGMENT OF CONVICTION OF A WITNESS THE PEOPLE INTEND
TO CALL AT TRIAL IF THE RECORD OF CONVICTION IS KNOWN BY THE PROSECUTOR
TO EXIST;
(C) THE EXISTENCE OF ANY PENDING CRIMINAL ACTION AGAINST A WITNESS
THE PEOPLE INTEND TO CALL AT TRIAL, IF THE PENDING CRIMINAL ACTION IS
KNOWN BY THE PROSECUTOR TO EXIST.
THE PROVISIONS OF PARAGRAPHS (B) AND (C) OF THIS SUBDIVISION SHALL NOT
BE CONSTRUED TO REQUIRE THE PROSECUTOR TO FINGERPRINT A WITNESS OR
OTHERWISE CAUSE THE DIVISION OF CRIMINAL JUSTICE SERVICES OR OTHER LAW
ENFORCEMENT AGENCY OR COURT TO ISSUE A REPORT CONCERNING A WITNESS.
2. AFTER PRESENTATION OF THE PEOPLE'S DIRECT CASE AND BEFORE THE
PRESENTATION OF THE DEFENDANT'S DIRECT CASE, THE DEFENDANT SHALL,
SUBJECT TO A PROTECTIVE ORDER, MAKE AVAILABLE TO THE PROSECUTOR:
(A) ANY WRITTEN OR RECORDED STATEMENT MADE BY A PERSON OTHER THAN THE
DEFENDANT WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS AT THE TRIAL,
AND WHICH RELATES TO THE SUBJECT MATTER OF THE WITNESS'S TESTIMONY;
(B) A RECORD OF JUDGMENT OF CONVICTION OF A WITNESS, OTHER THAN THE
DEFENDANT, THE DEFENDANT INTENDS TO CALL AT TRIAL IF THE RECORD OF
CONVICTION IS KNOWN BY THE DEFENDANT TO EXIST;
(C) THE EXISTENCE OF ANY PENDING CRIMINAL ACTION AGAINST A WITNESS,
OTHER THAN THE DEFENDANT, THE DEFENDANT INTENDS TO CALL AT TRIAL, IF THE
PENDING CRIMINAL ACTION IS KNOWN BY THE DEFENDANT TO EXIST.
§ 240.50 PROTECTIVE ORDERS.
1. THE COURT IN WHICH THE CRIMINAL ACTION IS PENDING MAY, UPON MOTION
OF EITHER PARTY, OR OF ANY AFFECTED PERSON, OR UPON DETERMINATION OF A
MOTION OF EITHER PARTY FOR AN ORDER OF DISCOVERY, OR UPON ITS OWN
S. 4461 25
INITIATIVE, ISSUE A PROTECTIVE ORDER DENYING, LIMITING, CONDITIONING,
DELAYING OR REGULATING DISCOVERY PURSUANT TO THIS ARTICLE FOR GOOD
CAUSE, INCLUDING CONSTITUTIONAL LIMITATIONS, 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 WHICH OUTWEIGHS THE
USEFULNESS OF THE DISCOVERY.
2. AN ORDER LIMITING, CONDITIONING, DELAYING OR REGULATING DISCOVERY
MAY, AMONG OTHER THINGS, REQUIRE THAT ANY MATERIAL COPIED OR DERIVED
THEREFROM BE MAINTAINED IN THE EXCLUSIVE POSSESSION OF THE ATTORNEY FOR
THE DISCOVERING PARTY AND BE USED FOR THE EXCLUSIVE PURPOSE OF PREPARING
FOR THE DEFENSE OR PROSECUTION OF THE CRIMINAL ACTION.
3. A MOTION FOR A PROTECTIVE ORDER SHALL SUSPEND DISCOVERY OF THE
PARTICULAR MATTER IN DISPUTE.
4. NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, THE PERSONAL
RESIDENCE ADDRESS OF A POLICE OFFICER OR CORRECTION OFFICER SHALL NOT BE
REQUIRED TO BE DISCLOSED EXCEPT PURSUANT TO AN ORDER ISSUED BY A COURT
FOLLOWING A FINDING OF GOOD CAUSE.
§ 240.60 CONTINUING DUTY TO DISCLOSE.
IF, AFTER COMPLYING WITH THE PROVISIONS OF THIS ARTICLE OR AN ORDER
PURSUANT THERETO, A PARTY FINDS, EITHER BEFORE OR DURING TRIAL, ADDI-
TIONAL MATERIAL SUBJECT TO DISCOVERY OR COVERED BY SUCH ORDER, THE
PARTY SHALL PROMPTLY COMPLY WITH THE DEMAND OR ORDER, REFUSE TO COMPLY
WITH THE DEMAND WHERE REFUSAL IS AUTHORIZED, OR APPLY FOR A PROTECTIVE
ORDER.
§ 240.70 SANCTIONS; FEES.
1. IF, DURING THE COURSE OF DISCOVERY PROCEEDINGS, THE COURT FINDS
THAT A PARTY HAS FAILED TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
ARTICLE, THE COURT MAY ORDER SUCH PARTY TO PERMIT DISCOVERY OF THE PROP-
ERTY NOT PREVIOUSLY DISCLOSED, GRANT A CONTINUANCE, ISSUE A PROTECTIVE
ORDER, PROHIBIT THE INTRODUCTION OF CERTAIN EVIDENCE OR THE CALLING OF
CERTAIN WITNESSES OR TAKE ANY OTHER APPROPRIATE ACTION.
2. THE FAILURE OF THE PROSECUTION TO CALL AS A WITNESS A PERSON SPECI-
FIED IN SUBDIVISION ONE OF SECTION 240.20 OF THIS ARTICLE OR OF ANY
PARTY TO INTRODUCE DISCLOSED MATERIAL AT THE TRIAL SHALL NOT, BY ITSELF,
CONSTITUTE GROUNDS FOR ANY SANCTION OR FOR ADVERSE COMMENT THEREUPON BY
ANY PARTY IN SUMMATION TO THE JURY OR AT ANY OTHER POINT.
3. A FEE FOR COPIES OF RECORDS REQUIRED TO BE DISCLOSED MAY BE
CHARGED. SUCH FEE SHALL NOT EXCEED TWENTY-FIVE CENTS PER PHOTOCOPY NOT
IN EXCESS OF NINE INCHES BY FOURTEEN INCHES, OR THE ACTUAL COST OF
REPRODUCING ANY OTHER RECORD, EXCEPT WHEN A DIFFERENT FEE IS OTHERWISE
PRESCRIBED BY LAW.
§ 240.75 CERTAIN VIOLATIONS.
THE FAILURE OF THE PROSECUTOR OR ANY AGENT OF THE PROSECUTOR TO
DISCLOSE STATEMENTS THAT ARE REQUIRED TO BE DISCLOSED UNDER SUBDIVISION
ONE OF SECTION 240.44 OF THIS ARTICLE OR PARAGRAPH (A) OF SUBDIVISION
ONE OF SECTION 240.45 OF THIS ARTICLE 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
S. 4461 26
MAY HAVE TO A RE-OPENED PRE-TRIAL HEARING WHEN SUCH STATEMENTS WERE
DISCLOSED BEFORE THE CLOSE OF EVIDENCE AT TRIAL.
§ 240.80 WHEN DEMAND, REFUSAL AND COMPLIANCE MADE.
1. A DEMAND TO PRODUCE SHALL BE MADE WITHIN THIRTY DAYS AFTER
ARRAIGNMENT AND BEFORE THE COMMENCEMENT OF TRIAL. IF THE DEFENDANT IS
NOT REPRESENTED BY COUNSEL, AND HAS REQUESTED AN ADJOURNMENT TO OBTAIN
COUNSEL OR TO HAVE COUNSEL ASSIGNED, THE THIRTY-DAY PERIOD SHALL
COMMENCE,FOR PURPOSES OF A DEMAND BY THE DEFENDANT, ON THE DATE COUNSEL
INITIALLY APPEARS ON THE DEFENDANT'S BEHALF. HOWEVER, THE COURT MAY
DIRECT COMPLIANCE WITH A DEMAND TO PRODUCE THAT, FOR GOOD CAUSE SHOWN,
COULD NOT HAVE BEEN MADE WITHIN THE TIME SPECIFIED.
2. A REFUSAL TO COMPLY WITH A DEMAND TO PRODUCE SHALL BE MADE WITHIN
FIFTEEN DAYS OF THE SERVICE OF THE DEMAND TO PRODUCE, BUT FOR GOOD CAUSE
MAY BE MADE THEREAFTER.
3. ABSENT A REFUSAL TO COMPLY WITH A DEMAND TO PRODUCE, COMPLIANCE
WITH SUCH DEMAND SHALL BE MADE WITHIN FIFTEEN DAYS OF THE SERVICE OF THE
DEMAND OR AS SOON THEREAFTER AS PRACTICABLE.
§ 240.90 MOTION PROCEDURE.
1. A MOTION BY A PROSECUTOR FOR DISCOVERY SHALL BE MADE WITHIN
FORTY-FIVE DAYS AFTER ARRAIGNMENT, BUT FOR GOOD CAUSE SHOWN MAY BE MADE
AT ANY TIME BEFORE COMMENCEMENT OF TRIAL.
2. A MOTION BY A DEFENDANT FOR DISCOVERY SHALL BE MADE AS PRESCRIBED
IN SECTION 255.20 OF THIS TITLE.
3. WHERE THE INTERESTS OF JUSTICE SO REQUIRE, THE COURT MAY PERMIT A
PARTY TO A MOTION FOR AN ORDER OF DISCOVERY OR A PROTECTIVE ORDER, OR
OTHER AFFECTED PERSON, TO SUBMIT PAPERS OR TO TESTIFY EX PARTE OR IN
CAMERA. ANY SUCH PAPERS AND TRANSCRIPT OF SUCH TESTIMONY SHALL BE
SEALED, BUT SHALL CONSTITUTE A PART OF THE RECORD ON APPEAL.
§ 32. Subdivision 9 of section 65.20 of the criminal procedure law, as
amended by section 4 of part LLL of chapter 59 of the laws of 2019, is
amended to read as follows:
9. (a) Prior to the commencement of the hearing conducted pursuant to
subdivision six of this section, the district attorney shall, subject to
a protective order, comply with the provisions of subdivision one of
section [245.20] 240.45 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]
THE DEFENDANT must, subject to a protective order, comply with the
provisions of subdivision [four] TWO of section [245.20] 240.45 of this
chapter as they concern all the witnesses the defendant intends to call
at such hearing.
§ 33. Subdivision 5 of section 200.95 of the criminal procedure law,
as amended by section 5 of part LLL of chapter 59 of the laws of 2019,
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]
THE defense and, if the request was untimely, a finding of good cause
for the delay. Where a prosecutor has not timely served a written
S. 4461 27
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 [section 245.80 of
this part] SUBDIVISION ONE OF SECTION 240.70 OF THIS PART.
§ 34. Paragraph (c) of subdivision 1 of section 255.10 of the criminal
procedure law, as amended by section 6 of part LLL of chapter 59 of the
laws of 2019, is amended to read as follows:
(c) granting discovery pursuant to article [245] TWO HUNDRED FORTY; or
§ 35. 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 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
application have been furnished pursuant to section 700.70 of this chap-
ter, 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 counsel or to have counsel assigned, such forty-
five day period shall commence on the date counsel initially appears on
defendant's behalf.
§ 36. Section 340.30 of the criminal procedure law, as amended by
section 8 of part LLL of chapter 59 of the laws of 2019, is amended to
read as follows:
§ 340.30 Pre-trial discovery and notices of defenses.
The provisions of article two hundred [forty-five] FORTY of this part,
concerning pre-trial discovery by a defendant under indictment in a
superior court, and article two hundred fifty of this part, 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.
§ 37. Subdivision 14 of section 400.27 of the criminal procedure law,
as amended by section 9 of part LLL of chapter 59 of the laws of 2019,
is amended to read as follows:
14. (a) At a reasonable time prior to the sentencing proceeding or a
[mental retardation] COMPETENCY 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 [245.20] 240.45 of
this part and make available for inspection, photographing, copying or
testing the property specified in subdivision one of section [245.20]
240.20 OF THIS PART; 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 [four] TWO of section [245.20]
240.20 OF THIS PART and make available for inspection, photographing,
copying or testing, subject to constitutional limitations, the reports,
S. 4461 28
documents and other property specified in [section 245.20] SUBDIVISION
ONE OF SECTION 240.30 of this part.
(b) Where a party refuses to make disclosure pursuant to this section,
the provisions of [section 245.70, 245.75 and/or 245.80] SECTIONS
240.35, 240.40 AND 240.50 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] COMPETENCY 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 [employ] ENTER any of the
[remedies or sanctions] ORDERS specified in subdivision one of section
[245.80] 240.70 of this part.
§ 38. The opening paragraph of paragraph (b) of subdivision 1 of
section 440.30 of the criminal procedure law, as amended by section 10
of part LLL of chapter 59 of the laws of 2019, 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, custody,
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:
§ 39. Subdivision 3 of section 610.20 of the criminal procedure law,
as amended by section 3 of part LLL of chapter 59 of the laws of 2019,
is amended 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] SUCH ATTORNEY, 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 repre-
sentative thereof[, unless the subpoena is indorsed by the court and
provides at least three days for the production of the requested materi-
als. 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
S. 4461 29
RULES APPLICABLE TO CIVIL CASES AS PROVIDED IN SECTION TWENTY-THREE
HUNDRED SEVEN OF THE CIVIL PRACTICE LAW AND RULES.
§ 40. Subdivision 4 of section 610.20 of the criminal procedure law is
REPEALED.
§ 41. Subdivision 10 of section 450.10 of the penal law, as amended by
section 11 of part LLL of chapter 59 of the laws of 2019, 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 [245.80] 240.70 of the criminal procedure law; provided,
however, that unless the defendant has convinced the court that such
failure has caused [him] THE DEFENDANT undue prejudice, the court shall
not preclude the district attorney from introducing into evidence the
property, photographs, photocopies, or other reproductions of the prop-
erty or, where appropriate, testimony concerning its value and condi-
tion, where such evidence is otherwise properly authenticated and admis-
sible 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.
§ 42. Section 460.80 of the penal law, as amended by section 12 of
part LLL of chapter 59 of the laws of 2019, is amended to read as
follows:
§ 460.80 Court ordered disclosure.
Notwithstanding the provisions of article two hundred [forty-five]
FORTY of the criminal procedure law, when forfeiture is sought pursuant
to section 460.30 of this article, the court may order discovery of any
property not otherwise disclosed which is material and reasonably neces-
sary for preparation by the defendant with respect to the forfeiture
proceeding pursuant to such section. The court may issue a protective
order denying, limiting, conditioning, delaying or regulating such
discovery where a danger to the integrity of physical evidence or a
substantial risk of physical harm, intimidation, economic reprisal,
bribery or unjustified annoyance or embarrassment to any person or an
adverse effect upon the legitimate needs of law enforcement, including
the protection of the confidentiality of informants, or any other factor
or set of factors outweighs the usefulness of the discovery.
§ 43. Subdivision 5 of section 480.10 of the penal law, as amended by
section 13 of part LLL of chapter 59 of the laws of 2019, is amended to
read as follows:
5. In addition to information required to be disclosed pursuant to
article two hundred [forty-five] FORTY 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 [245.70] 240.40 of the
S. 4461 30
criminal procedure law with respect to any information required to be
disclosed pursuant to this subdivision.
§ 44. Subdivision 5 of section 216 of the judiciary law is REPEALED.
§ 45. Section 837-u of the executive law is REPEALED.
§ 46. This act shall take effect immediately; provided, however, that
the amendments to subdivision 9 of section 65.20 of the criminal proce-
dure law made by section thirty-two of this act shall not affect the
repeal of such section and shall be deemed repealed therewith.
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