Bill Text: NY A04879 | 2011-2012 | General Assembly | Introduced


Bill Title: Relates to exculpatory material and requires for disclosure of such to the defense.

Spectrum: Moderate Partisan Bill (Democrat 14-4)

Status: (Introduced - Dead) 2012-09-04 - enacting clause stricken [A04879 Detail]

Download: New_York-2011-A04879-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4879
                              2011-2012 Regular Sessions
                                 I N  A S S E M B L Y
                                   February 8, 2011
                                      ___________
       Introduced  by  M.  of  A.  P. RIVERA  -- Multi-Sponsored by -- M. of A.
         GIBSON, GLICK, GOTTFRIED, HEASTIE, HIKIND, McDONOUGH,  SCARBOROUGH  --
         read once and referred to the Committee on Codes
       AN  ACT  to amend the criminal procedure law, in relation to exculpatory
         material
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  The  criminal  procedure  law  is amended by adding a new
    2  section 240.25 to read as follows:
    3  S 240.25 DISCLOSURE OF INFORMATION EXCULPATORY TO THE DEFENSE.
    4    1. DEFINITION.  EXCULPATORY INFORMATION INCLUDES, BUT IS  NOT  LIMITED
    5  TO,  INFORMATION  THAT  IS MATERIAL AND FAVORABLE TO THE ACCUSED BECAUSE
    6  THE INFORMATION:
    7    (A) CASTS DOUBT ON WHETHER THE CONDUCT OF THE ACCUSED SATISFIED ONE OR
    8  MORE OF THE ELEMENTS OF A CRIME CHARGED IN THE INDICTMENT,  INFORMATION,
    9  OR OTHER CHARGING INSTRUMENT;
   10    (B) CASTS DOUBT ON WHETHER THE CRIME CHARGED OCCURRED;
   11    (C)  CASTS  DOUBT ON THE ADMISSIBILITY OF EVIDENCE THAT THE PROSECUTOR
   12  ANTICIPATES OFFERING IN  THE  PROSECUTION'S  CASE-IN-CHIEF  BECAUSE  THE
   13  INFORMATION  PROVIDES  A  BASIS FOR A MOTION TO SUPPRESS OR EXCLUDE SUCH
   14  EVIDENCE;
   15    (D) CASTS DOUBT ON THE CREDIBILITY OR ACCURACY OF TESTIMONY  OR  OTHER
   16  EVIDENCE  THAT  THE  PROSECUTOR  ANTICIPATES  OFFERING  IN  HIS  OR  HER
   17  CASE-IN-CHIEF;
   18    (E) DIMINISHES THE DEGREE OF THE ACCUSED'S CULPABILITY OR THE LEVEL OF
   19  OFFENSE CHARGED;
   20    (F) SUPPORTS A DEFENSE TO THE CHARGE OR CHARGES  PENDING  AGAINST  THE
   21  ACCUSED;
   22    (G)  MITIGATES,  REDUCES OR AFFECTS THE SENTENCE THAT MUST OR MIGHT BE
   23  IMPOSED;
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07101-01-1
       A. 4879                             2
    1    (H) TENDS TO LEAD TO INFORMATION THAT  WOULD  SATISFY  PARAGRAPHS  (A)
    2  THROUGH (G) OF THIS SUBDIVISION.
    3    2.  TIMING  OF FIRST DELIVERY OF INFORMATION.  WITHOUT A MOTION BY THE
    4  DEFENSE, THE FOLLOWING INFORMATION MUST BE DISCLOSED  AND  DELIVERED  BY
    5  THE  PROSECUTION  TO THE DEFENSE WITHIN TWENTY-EIGHT DAYS OF ARRAIGNMENT
    6  ON THE FIRST CHARGING INSTRUMENT:
    7    (A) INFORMATION THAT CASTS DOUBT ON THE GUILT OF THE  ACCUSED  OF  ANY
    8  CHARGE IN THE INDICTMENT, INFORMATION OR OTHER CHARGING INSTRUMENT;
    9    (B) INFORMATION THAT CASTS DOUBT ON THE ADMISSIBILITY OF EVIDENCE THAT
   10  THE PROSECUTOR ANTICIPATES OFFERING IN HIS OR HER CASE-IN-CHIEF AND THAT
   11  COULD BE THE BASIS OF A MOTION TO SUPPRESS OR EXCLUDE;
   12    (C)  A  STATEMENT AS TO WHETHER ANY PROMISE, REWARD, OR INDUCEMENT HAS
   13  BEEN GIVEN TO ANY WITNESS WHOM THE PROSECUTOR ANTICIPATES CALLING IN HIS
   14  OR HER CASE-IN-CHIEF, IDENTIFYING BY NAME EACH  SUCH  WITNESS  AND  EACH
   15  PROMISE,  REWARD,  OR  INDUCEMENT, AND A COPY OF ANY PROMISE, REWARD, OR
   16  INDUCEMENT THAT HAS BEEN REDUCED TO WRITING OR PRINT;
   17    (D) A COPY OF ANY CRIMINAL RECORD OF ANY WITNESS  IDENTIFIED  BY  NAME
   18  WHOM  THE  PROSECUTOR  ANTICIPATES  CALLING  IN HIS OR HER CASE-IN-CHIEF
   19  INCLUDING THE COURT OF CONVICTION, THE CRIME OF WHICH  THE  WITNESS  WAS
   20  CONVICTED, THE DATE OF THE CONVICTION, AND THE NUMBER OF THE CASE;
   21    (E) A WRITTEN STATEMENT SETTING OUT CRIMINAL CHARGES PENDING AGAINST A
   22  WITNESS,  WHO  SHALL  BE  IDENTIFIED BY NAME, WHOM THE PROSECUTOR ANTIC-
   23  IPATES CALLING IN HIS OR HER CASE-IN-CHIEF;
   24    (F) A WRITTEN  STATEMENT  SETTING  OUT  THE  FAILURE  OF  A  POTENTIAL
   25  WITNESS, WHO SHALL BE IDENTIFIED BY NAME, TO MAKE A POSITIVE IDENTIFICA-
   26  TION  OF  THE  ACCUSED IN AN IDENTIFICATION PROCEDURE THAT HAS BEEN HELD
   27  WITH SUCH A WITNESS WITH RESPECT TO THE CRIME;
   28    (G) A WRITTEN OR ORAL STATEMENT FROM ANY PERSON OR  OTHER  INFORMATION
   29  THAT TENDS TO SUPPORT A DEFENSE TO THE CHARGES.
   30    3.  PRETRIAL DELIVERY.  WITHOUT A MOTION BY THE DEFENSE, THE FOLLOWING
   31  INFORMATION MUST BE DISCLOSED AND DELIVERED NOT  LATER  THAN  TWENTY-ONE
   32  DAYS PRIOR TO THE DATE FIRST SET FOR TRIAL:
   33    (A)  INFORMATION  THAT  CASTS  DOUBT ON THE CREDIBILITY OR ACCURACY OF
   34  EVIDENCE, INCLUDING TESTIMONY OF WITNESSES, CONCERNING  MATERIAL  ISSUES
   35  RELATING  TO  WHETHER  A  CRIME  WAS  COMMITTED  AND WHETHER THE ACCUSED
   36  COMMITTED IT, THAT THE PROSECUTOR ANTICIPATES PRESENTING IN HIS  OR  HER
   37  CASE-IN-CHIEF;
   38    (B)  ANY  INCONSISTENT WRITTEN OR ORAL STATEMENT REGARDING THE ALLEGED
   39  CRIMINAL CONDUCT OF THE ACCUSED OR A DESCRIPTION OF SUCH STATEMENT, MADE
   40  BY A PERSON WHOM THE PROSECUTION  ANTICIPATES  CALLING  IN  HIS  OR  HER
   41  CASE-IN-CHIEF;
   42    (C)  ANY  STATEMENT  REGARDING  THE  ALLEGED  CRIMINAL  CONDUCT OF THE
   43  ACCUSED OR A DESCRIPTION OF SUCH STATEMENT, MADE ORALLY OR IN WRITING BY
   44  ANY PERSON, THAT IS INCONSISTENT WITH A  STATEMENT  MADE  ORALLY  OR  IN
   45  WRITING  BY  A WITNESS THE PROSECUTION ANTICIPATES CALLING IN HIS OR HER
   46  CASE-IN-CHIEF;
   47    (D) ANY INFORMATION REFLECTING BIAS OR PREJUDICE AGAINST THE DEFENDANT
   48  BY A WITNESS WHOM THE PROSECUTOR  ANTICIPATES  CALLING  IN  HIS  OR  HER
   49  CASE-IN-CHIEF;
   50    (E)  A  WRITTEN  DESCRIPTION  OF  ANY PRIOR BAD ACT THAT CONSTITUTES A
   51  CRIME KNOWN BY THE PROSECUTOR TO HAVE BEEN COMMITTED BY ANY WITNESS WHOM
   52  THE PROSECUTION ANTICIPATES CALLING IN HIS OR HER CASE-IN-CHIEF;
   53    (F) INFORMATION KNOWN OR ASCERTAINABLE TO THE PROSECUTOR OF ANY MENTAL
   54  OR PHYSICAL IMPAIRMENT OF ANY WITNESS WHOM  THE  PROSECUTOR  ANTICIPATES
   55  CALLING  IN  HIS OR HER CASE-IN-CHIEF THAT MAY CAST DOUBT ON THE ABILITY
       A. 4879                             3
    1  OF THAT WITNESS TO OBSERVE AND ACCURATELY AND TRUTHFULLY RECALL, AND  TO
    2  RELATE INFORMATION ABOUT A RELEVANT EVENT OR OTHER MATERIAL INFORMATION;
    3    (G)  ANY  OTHER  INFORMATION  THAT IS WITHIN THE DEFINITION SET OUT IN
    4  SUBDIVISION ONE OF THIS SECTION;
    5    (H) ANYTHING REQUIRED TO BE DISCLOSED, PRIOR TO TRIAL, TO THE  DEFEND-
    6  ANT  BY THE PROSECUTOR, PURSUANT TO THE CONSTITUTION OF THIS STATE OR OF
    7  THE UNITED STATES.
    8    4. DELIVERY OF INFORMATION.  THE  PROSECUTOR  SHALL  DISCLOSE  TO  THE
    9  DEFENDANT  AND MAKE AVAILABLE FOR INSPECTION, EXAMINATION, PHOTOCOPYING,
   10  COPYING, PRINT OUT, RETRIEVAL, TESTING,  OR  INTERVIEW  (FOR  STATEMENTS
   11  PREVIOUSLY  MADE  BUT NOT RECORDED IN WRITING OR MECHANICALLY) OR BY ANY
   12  OTHER METHOD OF ACCESS, ALL INFORMATION INCLUDING  BUT  NOT  LIMITED  TO
   13  THAT  IN  PROPERTY,  DOCUMENTS, REPORTS, RECORDINGS, VIDEOS, RECORDS, IN
   14  THE KNOWLEDGE OF A PERSON  BUT  NOT  RECORDED  (ALL  HEREINAFTER  CALLED
   15  INFORMATION) WHICH WOULD PROVIDE THE INFORMATION SET OUT IN SUBDIVISIONS
   16  ONE,  TWO, AND THREE OF THIS SECTION REGARDLESS OF WHETHER SUCH INFORMA-
   17  TION WOULD ITSELF CONSTITUTE ADMISSIBLE EVIDENCE AT TRIAL OR  IS  OTHER-
   18  WISE KNOWN TO THE DEFENDANT.
   19    5.  CONTINUING  OBLIGATION.  IF AT ANY TIME AFTER THE TIME PERIODS SET
   20  FORTH ABOVE THE PROSECUTOR LEARNS OF ADDITIONAL INFORMATION REQUIRED  TO
   21  BE  DISCLOSED  TO  THE  DEFENDANT  PURSUANT TO SUBDIVISIONS ONE, TWO AND
   22  THREE OF THIS SECTION, THE PROSECUTOR SHALL, PURSUANT TO THE  CONTINUING
   23  OBLIGATION  TO DELIVER TO THE DEFENSE THE INFORMATION REQUIRED BY SUBDI-
   24  VISIONS ONE, TWO AND THREE OF THIS SECTION, PROMPTLY NOTIFY THE  DEFEND-
   25  ANT AND THE COURT OF THE EXISTENCE OF SUCH INFORMATION AND EXPEDITIOUSLY
   26  MAKE SUCH ITEMS AVAILABLE TO THE DEFENDANT FOR INSPECTION, PHOTOCOPYING,
   27  COPYING, TESTING OR OTHER REPRODUCTION AS SET OUT IN SUBDIVISION FOUR OF
   28  THIS SECTION.
   29    6.  APPLICATION TO THE COURT. (A) THE PROSECUTOR MAY SEEK A PROTECTIVE
   30  ORDER BASED ON A REASONABLE SHOWING THAT A WITNESS OR OTHER PERSON WOULD
   31  BE ENDANGERED BY DISCLOSURE OF THE INFORMATION REQUIRED BY THIS SECTION.
   32  IF THE COURT FINDS THAT THE PROSECUTOR HAS  MADE  A  REASONABLE  SHOWING
   33  THAT  A  WITNESS  OR OTHER PERSON WOULD BE ENDANGERED BY DISCLOSURE, THE
   34  COURT SHALL CONDUCT AN IN CAMERA REVIEW OF THE CLAIM, AND, IF  APPROPRI-
   35  ATE,  REDACT THE INFORMATION GIVEN TO THE DEFENSE UNTIL SUCH TIME AS THE
   36  LAW OR OTHER CIRCUMSTANCES OF THE CASE REQUIRE DISCLOSURE OF THE  INFOR-
   37  MATION.
   38    (B)  IF  IN  THE CIRCUMSTANCES OF A CASE, THE PROSECUTOR, AT ANY TIME,
   39  ASSERTS THAT INFORMATION WAS NOT DELIVERED OR WAS DELIVERED LATE  OR  IS
   40  NOT  EXCULPATORY  WITHIN THE TERMS OF THIS STATUTE OR AS REQUIRED BY THE
   41  STATE OR UNITED STATES CONSTITUTIONS AND WAS NOT DELIVERED BASED ON THAT
   42  REASON, THE COURT SHALL MAKE  AN  INDEPENDENT  EVALUATION  AND  DETERMI-
   43  NATION,  AFTER  HEARING FROM DEFENSE COUNSEL, AS TO WHETHER THE INFORMA-
   44  TION SHOULD BE DELIVERED PURSUANT TO THIS SUBDIVISION.
   45    (C) THE PROSECUTOR'S VIEW OF WHETHER THE INFORMATION  IS  TRUTHFUL  OR
   46  ACCURATE  SHALL  NOT  BE A FACTOR USED BY THE PROSECUTOR OR THE COURT TO
   47  DETERMINE WHETHER THE INFORMATION  MUST  BE  DELIVERED  TO  THE  DEFENSE
   48  PURSUANT TO THIS SECTION.
   49    7. INQUIRIES. PRIOR TO THE REQUIRED DATES FOR THE DISCLOSURE OF INFOR-
   50  MATION  TO  THE  DEFENSE,  THE  PROSECUTOR SHALL MAKE INQUIRIES TO LEARN
   51  WHETHER THOSE AGENCIES DEEMED BY LAW TO BE ASSISTING THE PROSECUTOR  ARE
   52  IN POSSESSION OF INFORMATION DEFINED IN SUBDIVISIONS ONE, TWO, AND THREE
   53  OF  THIS  SECTION,  AND SHALL OBTAIN THE INFORMATION FOR DELIVERY TO THE
   54  DEFENSE IN ACCORD WITH THIS SECTION.
   55    8. CONFERENCE AND CERTIFICATION. (A) AT A TIME SET BY THE COURT BEFORE
   56  THE FIRST DESIGNATED TRIAL DATE AND AT SUCH FURTHER TIMES AS  THE  COURT
       A. 4879                             4
    1  ORDERS, THE PROSECUTOR SHALL IDENTIFY FOR THE COURT THE INFORMATION THAT
    2  HAS  BEEN  DELIVERED  TO THE DEFENSE AND CERTIFY THE DELIVERY. THE COURT
    3  SHALL HOLD A CONFERENCE TO DETERMINE WHETHER THE PROSECUTOR HAS EXAMINED
    4  THE  PROSECUTOR'S  FILE  AND THE FILES OF THOSE ASSISTING THE PROSECUTOR
    5  AND HAS DELIVERED THE REQUIRED INFORMATION.
    6    (B) IF THE PROSECUTOR DELIVERS TO THE DEFENSE PURSUANT TO THIS STATUTE
    7  LARGE QUANTITIES OF INFORMATION, WHETHER OF DOCUMENTS, ELECTRONIC INFOR-
    8  MATION, OR OTHER FORMAT, WITHOUT IDENTIFICATION OF ITS  SIGNIFICANCE  TO
    9  THE  CASE, THE COURT SHALL ESTABLISH IN THE CONFERENCE THE PROCEDURE FOR
   10  IDENTIFICATION OF THE INFORMATION AND IF NEEDED GRANT AN ADJOURNMENT FOR
   11  THAT TO BE ACCOMPLISHED BY THE PROSECUTOR AND EXAMINED BY THE DEFENSE.
   12    9. SANCTIONS FOR LATE  DELIVERY  OR  FAILURE  TO  DELIVER  INFORMATION
   13  DEFINED  IN  THIS SECTION. WHERE THERE IS A FAILURE BY THE PROSECUTOR TO
   14  DELIVER THE INFORMATION SET OUT IN THIS SECTION, OR THE  INFORMATION  IS
   15  DELIVERED  AFTER THE REQUIRED TIME PERIOD, AT THE REQUEST OF THE DEFENSE
   16  OR IN THE COURT'S DISCRETION, THE COURT SHALL ORDER ONE OR MORE  OF  THE
   17  FOLLOWING SANCTIONS:
   18    (A)  GRANT AN APPROPRIATE EXTENSION OF TIME IN THE PROCEEDING TO ALLOW
   19  THE DEFENSE TO EXAMINE THE INFORMATION AND TO INVESTIGATE BASED  ON  THE
   20  LATE DELIVERED INFORMATION. FOR THAT EFFORT, THE COURT MAY AUTHORIZE FOR
   21  THE  DEFENSE  INVESTIGATORS,  LAB  TESTS, EXPERTS AND OTHER RESOURCES TO
   22  CONDUCT THE DEFENSE INVESTIGATION;
   23    (B) REOPEN A PRE-TRIAL HEARING;
   24    (C) PRECLUDE INTRODUCTION OF EVIDENCE;
   25    (D) INSTRUCT THE JURY THAT THE PROSECUTOR HAS NOT DELIVERED OR  DELIV-
   26  ERED  ONLY AFTER IMPROPER DELAY EVIDENCE THAT SHOULD HAVE BEEN DELIVERED
   27  AND DELIVERED TIMELY AND THAT THE JURORS MAY INFER THAT THE  INFORMATION
   28  NOT  DISCLOSED  WAS  EXCULPATORY  OR, IF NOT DISCLOSED OR DISCLOSED ONLY
   29  AFTER UNDUE DELAY, COULD HAVE LED TO EXCULPATORY INFORMATION AS  DEFINED
   30  IN SUBDIVISIONS ONE, TWO AND THREE OF THIS SECTION;
   31    (E) NOTIFY THE SUPERVISING PROSECUTOR;
   32    (F)  REFER THE MATTER TO THE APPROPRIATE ATTORNEY DISCIPLINARY COMMIT-
   33  TEE PURSUANT TO SUBDIVISION TEN OF THIS SECTION IF AFTER CONDUCTING SUCH
   34  INQUIRY AS THE COURT DEEMS APPROPRIATE AND ISSUING  AN  OPINION  STATING
   35  THE  COURT'S FINDINGS, THE ATTORNEY'S CONDUCT IS ASSERTED TO BE IMPROPER
   36  UNDER THE RULES OF PROFESSIONAL CONDUCT.
   37    10. LAWYER SANCTIONS. (A) ANY JUDICIAL OPINION  WHICH  CONCLUDES  THAT
   38  THERE WAS AN INTENTIONAL OR RECKLESS FAILURE TO COMPLY WITH THIS SECTION
   39  BY  A  PROSECUTOR  SHALL BE FORWARDED BY THE CLERK OF THE COURT IN WHICH
   40  THE OPINION IS FILED TO THE ATTORNEY DISCIPLINARY COMMITTEE WITH  JURIS-
   41  DICTION.
   42    (B)  IF  IN  CONNECTION WITH THE OBLIGATION TO DELIVER INFORMATION SET
   43  OUT IN THIS SECTION OR THE STATE  AND  UNITED  STATES  CONSTITUTIONS,  A
   44  TRIAL  OR APPELLATE COURT HAS CONCLUDED THAT IN THE COURSE OF A CRIMINAL
   45  PROCEEDING, A PROSECUTOR HAS  VIOLATED  RULES  3.4(A)(1),  3.4(A)(3)  OR
   46  3.8(B)  OF THE RULES OF PROFESSIONAL CONDUCT, OR OTHER RELEVANT STATUTES
   47  AND RULES, BY INTENTIONALLY OR RECKLESSLY FAILING TO DELIVER  OR  TIMELY
   48  DELIVER  TO  THE  DEFENSE  THE  INFORMATION SET OUT IN THIS SECTION, THE
   49  CONDUCT SHALL BE REFERRED BY THE JUDGE PURSUANT TO RULE  100.3(D)(2)  OF
   50  THE  CODE  OF JUDICIAL CONDUCT TO THE ATTORNEY DISCIPLINARY COMMITTEE OF
   51  THE APPROPRIATE JUDICIAL DISTRICT FOR PROCEEDINGS PURSUANT TO APPLICABLE
   52  RULES.
   53    (C) IF AN ATTORNEY HAS A REASONABLE BASIS TO BELIEVE THAT A PROSECUTOR
   54  HAS INTENTIONALLY OR RECKLESSLY FAILED TO DELIVER INFORMATION AS DEFINED
   55  IN THIS STATUTE, THAT ATTORNEY SHALL NOTIFY  THE  ATTORNEY  DISCIPLINARY
   56  COMMITTEE  OF  THE APPROPRIATE JUDICIAL DISTRICT PURSUANT TO RULE 8.3(A)
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    1  OF THE RULES OF PROFESSIONAL CONDUCT FOR PROCEEDINGS PURSUANT  TO  COURT
    2  RULES.
    3    (D)  IF  MORE  THAN ONE EVENT IS REFERRED TO THE ATTORNEY DISCIPLINARY
    4  COMMITTEE, THE REFERRALS SHALL BE CONSOLIDATED.
    5    11. USE OF FALSE INFORMATION. THE PROVISIONS  OF  SUBDIVISION  TEN  OF
    6  THIS SECTION SHALL APPLY TO A PROSECUTOR FOR THE KNOWING OR RECKLESS USE
    7  OF FALSE OR UNTRUTHFUL EVIDENCE.
    8    S  2. Subdivision 1 of section 240.20 of the criminal procedure law is
    9  amended by adding a new paragraph (l) to read as follows:
   10    (L) INFORMATION RESULTING FROM COMPARING DNA TEST RESULTS ON SPECIMENS
   11  FROM CRIME SCENE SAMPLE OR SAMPLES OBTAINED IN THE COURSE OF AN INVESTI-
   12  GATION OF AN ALLEGED CRIME WITH THE DNA RECORDS MAINTAINED BY OR  AVAIL-
   13  ABLE  THROUGH THE STATE DNA IDENTIFICATION INDEX ESTABLISHED PURSUANT TO
   14  NEW YORK LAW OR ANY OFFICIAL FEDERAL DNA INDEX.
   15    S 3. Subdivision 1 of section 440.10 of the criminal procedure law  is
   16  amended by adding a new paragraph (j) to read as follows:
   17    (J) THE PEOPLE HAVE FAILED TO PROVIDE OR TO PROVIDE IN A TIMELY MANNER
   18  EVIDENCE EXCULPATORY TO THE DEFENSE AS DEFINED IN SECTION 240.25 OF THIS
   19  CHAPTER  AND HAVE FAILED TO PROVE THAT THERE WAS NO POSSIBILITY THAT THE
   20  INFORMATION WOULD HAVE AFFECTED THE DECISION.
   21    S 4. This act shall take effect on the sixtieth  day  after  it  shall
   22  have become a law.
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