§ 1311-a. Subpoena duces tecum. 1. At any time before an action
pursuant to this article is commenced, the claiming authority may,
pursuant to the provisions of subdivision two of this section, apply
without notice for the issuance of a subpoena duces tecum.

2. An application for a subpoena duces tecum pursuant to this section:

(a) shall be made in the judicial district in which the claiming
authority may commence an action pursuant to this article, and shall be
made in writing to a justice of the supreme court, or a judge of the
county court; and

(b) shall be supported by an affidavit, and such other written
documentation as may be submitted which: (i) sets forth the identity of
the claiming authority and certifies that the applicant is authorized to
make the application on the claiming authority's behalf; (ii)
demonstrates reasonable grounds to believe that the execution of the
subpoena would be reasonably likely to lead to information about the
nature and location of any debt or property against which a forfeiture
judgment may be enforced; (iii) states whether any other such subpoena
or provisional remedy has been previously sought or obtained with
respect to the subject matter of the subpoena or the matter to which it
relates; (iv) contains a factual statement which sets forth the basis
for the issuance of the subpoena, including a particular description of
the nature of the information sought to be obtained; (v) states whether
the issuance of the subpoena is sought without notice to any interested
party; and (vi) where the application seeks the issuance of the subpoena
without notice to any interested party, contains a statement setting
forth the factual basis for the claiming authority's belief that
providing notice of the application for the issuance of the subpoena may
result in any property being destroyed, removed from the jurisdiction of
the court, or otherwise being unavailable for forfeiture or to satisfy a
money judgment that may be entered in the forfeiture action, and may
interfere with law enforcement investigations or judicial proceedings.

3. An application made pursuant to this section may be granted, in the
court's discretion, upon a determination that the application meets the
requirements set forth in subdivision two of this section; provided,
however, that no such subpoena may be issued or directed to an attorney
with regard to privileged records or documents or attorney work-product
relating to a client. When a subpoena has been issued pursuant to this
section, the claiming authority shall have the right to possession of
the subpoenaed material. The possession shall be for a period of time,
and on such reasonable terms and conditions, as the court may direct.
The reasonableness of such possession, time, terms and conditions shall
be determined with consideration for, among other things, (a) the good
cause shown by the party issuing the subpoena or in whose behalf the
subpoena is issued, (b) the rights and legitimate needs of the person
subpoenaed and (c) the feasibility and appropriateness of making copies
of the subpoenaed material. Where the application seeks a subpoena to
compel the production of an original record or document, the court in
its discretion may order the production of a certified transcript or
certified copy thereof.

4. Upon a determination pursuant to subdivision three of this section
that the subpoena should be granted, the court shall issue the subpoena,
seal all papers relating thereto, and direct that the recipient shall
not, except as otherwise ordered by the court, disclose the fact of
issuance or the subject of the subpoena to any person or entity;
provided, however, that the court may require that notice be given to
any interested party prior to the issuance of the subpoena, or at any
time thereafter, when: (a) an order granting a provisional remedy
pursuant to this article with respect to the subject matter of the
subpoena or the matter to which it relates has been served upon the
defendant whose books and records are the subject matter of the
subpoena, whether such books and records are in the possession of the
defendant or a third party; or (b) the court determines that providing
notice of the application (i) will not result in any property being
destroyed, removed from the jurisdiction of the court, or otherwise
being unavailable for forfeiture or to satisfy a money judgment that may
be entered in the forfeiture action and (ii) will not interfere with law
enforcement investigations or judicial proceedings. For purposes of this
section, "interested party" means any person whom the court determines
might have an interest in the property subject to the forfeiture action
brought pursuant to this article.

5. Notwithstanding the provisions of subdivision four of this section,
where a subpoena duces tecum has been issued pursuant to this section
without notice to any interested party, the claiming authority shall
serve written notice of the fact and date of the issuance of the
subpoena duces tecum, and of the fact that information was obtained
thereby, upon any interested party not later than ninety days after the
date of compliance with such subpoena, or upon commencement of a
forfeiture action, whichever occurs first; provided, however, where the
action has not been commenced and upon a showing of good cause, service
of the notice required herein may be postponed by order of the court for
a reasonable period of time. The court, upon the filing of a motion by
any interested party served with such notice, may, in its discretion,
make available to such party or the party's counsel for inspection such
portions of the information obtained pursuant to the subpoena as the
court directs.

6. Nothing contained in this section shall be construed to diminish or
impair any right of subpoena or discovery that may otherwise be provided
for by law to the claiming authority or to a defendant in a forfeiture
action.