Bill Text: NY A04883 | 2019-2020 | General Assembly | Introduced
Bill Title: Implements automatic discovery for criminal court proceedings; repeals certain discovery provisions of the criminal procedure law.
Spectrum: Partisan Bill (Democrat 18-0)
Status: (Introduced - Dead) 2020-01-08 - referred to codes [A04883 Detail]
Download: New_York-2019-A04883-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4883 2019-2020 Regular Sessions IN ASSEMBLY February 5, 2019 ___________ Introduced by M. of A. BLAKE, ARROYO, BARRON, COOK, D'URSO, HUNTER, HYNDMAN, LENTOL, MOSLEY, ORTIZ, QUART, RICHARDSON, SEAWRIGHT, VANEL -- read once and referred to the Committee on Codes AN ACT to amend the criminal procedure law and the penal law, in relation to implementing automatic discovery; and to repeal certain provisions of the criminal procedure law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Article 240 of the criminal procedure law is REPEALED and a 2 new article 240 is added to read as follows: 3 ARTICLE 240 4 AUTOMATIC DISCOVERY 5 Section 240.10 Automatic discovery; generally. 6 240.15 Automatic discovery; sanctions. 7 240.20 Automatic discovery; depositions. 8 240.25 Automatic discovery; notice and preservation of evidence. 9 240.30 Automatic discovery; remedies or sanctions for noncompli- 10 ance. 11 240.35 Automatic discovery; discretionary discovery by order of 12 the court. 13 240.40 Automatic discovery; order to grant access to premises. 14 240.45 Automatic discovery; certificate of compliance. 15 240.50 Automatic discovery; continuing duty. 16 240.55 Automatic discovery; work product. 17 240.60 Automatic discovery; protective orders. 18 240.65 Automatic discovery; amendment of discovery orders. 19 240.70 Automatic discovery; non-testimonial evidence from the 20 defendant. 21 240.75 Automatic discovery; orders regarding DNA comparisons. 22 § 240.10 Automatic discovery; generally. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05623-01-9A. 4883 2 1 1. Mandatory open file discovery. (a) Upon commencement of a criminal 2 action, and without a motion by the defense, the prosecution shall 3 disclose to the defense, and permit the defense to discover, inspect, 4 copy or photograph, and test all items and information in the 5 possession, custody or control of the prosecution, or persons under the 6 prosecution's direction or control, which relate to the subject matter 7 of the case or are otherwise relevant, including but not limited to: 8 (i) All statements, written or recorded or summarized in any writing 9 or recording, and the substance of all oral statements, made by the 10 defendant or a co-defendant; 11 (ii) All statements, written or recorded or summarized in any writing 12 or recording, and the substance of all oral statements, made by persons 13 whom the prosecutor knows to have evidence or information that relate to 14 the subject matter of the case or are otherwise relevant; 15 (iii) All photographs, tangible objects, video and audio recordings, 16 and electronic recordings and data, including but not limited to cell 17 phone triangulation data, pen registry and wire tapping data, that 18 relate to the subject matter of the case or are otherwise relevant; with 19 respect to tangible objects obtained from, or allegedly possessed by, 20 the defendant or a co-defendant, the prosecution shall provide a summary 21 indicating whether the object was physically or constructively possessed 22 by the defendant, whether the object was recovered during a search or 23 seizure by a public servant or an agent thereof, whether the prosecution 24 intends to prove the object was recovered by a public servant or agent 25 thereof after being abandoned by the defendant, whether the prosecution 26 intends to prove the defendant's possession of the object by means of a 27 statutory presumption of possession, and the location where the object 28 was recovered; 29 (iv) Reports and records of physical or mental examinations of the 30 defendant or the complaining witness or of scientific tests or exper- 31 iments, including all data, calculations, or writings of any kind, 32 including but not limited to, preliminary tests or screening results and 33 bench notes; 34 (v) All exhibits and demonstrative evidence the prosecutor intends to 35 introduce at a hearing or trial that relate to the subject matter of the 36 case or are otherwise relevant; 37 (vi) The names, known aliases, addresses and birth dates of all 38 persons, other than law enforcement personnel, whom the prosecutor knows 39 to have evidence or information that relate to the subject matter of the 40 case or are otherwise relevant, as well as a designation by the prosecu- 41 tor as to which of those persons may be called as witnesses; 42 (vii) Any documentation and summary of prior complaints, indictments, 43 convictions, dispositions, and findings of false testimony of all 44 defendants and of any person the prosecutor has designated as a civilian 45 witness who may be called at trial pursuant to subparagraph (vi) of this 46 paragraph; 47 (viii) The name, rank, shield number and business address of all law 48 enforcement personnel whom the prosecutor knows to have evidence or 49 information that relate to the subject matter of the case or are other- 50 wise relevant; 51 (ix) Any documentation and summary of impeachment material, including 52 but not limited to: prior complaints, indictments, convictions, pending 53 and closed investigation records, and instances where said person has 54 been found incredible, of any person the prosecutor has designated as a 55 law enforcement officer or agent thereof who participated in the inves-A. 4883 3 1 tigation that relates to the subject matter of the case pursuant to 2 subparagraph (vii) of this paragraph; 3 (x) All transcripts of the testimony of any person who has testified 4 before any grand jury when the testimony relates to the subject matter 5 of the case or is otherwise relevant; 6 (xi) A summary, pursuant to subdivision two of this section of all 7 corporeal or non-corporeal or voice identification procedures, whether 8 or not an identification was made, and all documents, photographs, and 9 other materials relating thereto; 10 (xii) All facts, evidence, and information favorable to the defendant, 11 including but not limited to information that tends to negate the 12 defendant's guilt or that tends to mitigate the defendant's culpability 13 as to a charged offense, or that tends to support a potential defense 14 thereto, or that tends to support a motion to suppress evidence on 15 constitutional or statutory grounds, or that would tend to reduce the 16 punishment of the defendant, or that is relevant to a witness's credi- 17 bility, without regard to the materiality of the information; 18 (xiii) A summary of all discussions, overt or tacit promises, rewards, 19 inducements, or offers of leniency made to a potential prosecution 20 witness, and copies of all documents and materials relevant to such 21 promise, reward, inducement, or offer of leniency; 22 (xiv) A summary of all evidence or information that has been provided 23 by a confidential informant or jailhouse informant and that relate to 24 the subject matter of the case or are otherwise relevant; 25 (xv) Information regarding whether a search warrant has been executed 26 and all documents and electronic recordings or records relating thereto, 27 including but not limited to the warrant, the warrant application, all 28 supporting affidavits, a police inventory of all property seized under 29 the warrant, and a transcript of all testimony or other oral communi- 30 cations offered in support of the warrant application; 31 (xvi) Information regarding whether there has been any electronic 32 surveillance, including but not limited to wire tapping or video 33 surveillance, of a residence or business or telephone or computer or 34 other electronic or digital device or social media accounts of the 35 defendant, or of conversations to which the defendant or a co-defendant 36 was a party, and all recordings, transcripts, documents, warrants and 37 warrant application materials relating thereto; 38 (xvii) Intended expert opinion evidence, including the name, business 39 address, current curriculum vitae, and a list of publications of each 40 intended expert witness, and all reports prepared by the expert that 41 pertain to the case, or if no report is prepared, a written statement of 42 the facts and opinions to which the expert is expected to testify and a 43 summary of the grounds for each opinion, and any instances where the 44 expert has been found incredible or to have been in perjury; if such 45 intended expert opinion evidence is not furnished within fifteen days of 46 the expert witness's completion of the report, the expert witness may, 47 upon application by the defendant, be barred from testifying at trial; 48 (xviii) A list of all misconduct and criminal acts of the defendant 49 not charged in the indictment, superior court information, prosecutor's 50 information, information, or simplified information charging a misdemea- 51 nor, which the prosecution intends to use at trial for purposes of 52 impeaching the credibility of the defendant or as substantive proof of 53 any material issue in the case; and 54 (xix) All department of criminal justice services criminal history 55 record checks for all witnesses who the prosecution intends to call, all 56 defendants, and all co-defendants.A. 4883 4 1 (b) Nothing in this subdivision shall be interpreted to limit the 2 scope of the prosecution's discovery obligations. In all questions aris- 3 ing regarding the scope of the prosecution's obligation to disclose to 4 the defense and to permit the defense to discover, inspect, copy or 5 photograph all items and information in the possession, custody or 6 control of the prosecution, or persons under the prosecution's direction 7 or control, which relate to the subject matter of the case or are other- 8 wise relevant, there shall be a presumption in favor of disclosure. 9 2. Identification procedure summaries. Summaries disclosed pursuant to 10 subparagraph (xi) of paragraph (a) of subdivision one of this section 11 shall include: 12 (a) The date, time, location, type, and result of each procedure; 13 (b) The names of all persons present at each procedure if known to law 14 enforcement; 15 (c) The name and address of each eyewitness at each procedure; 16 (d) The number and source of all photographs or lineup participants 17 used in each procedure; 18 (e) A copy of all photographs, photographic arrays, and photographs 19 taken of all lineups viewed by an eyewitness; 20 (f) The descriptions of suspects entered into an electronic or comput- 21 er photographic identification system, and a saved collection of the 22 photographic images generated by each description and viewed by each 23 eyewitness; 24 (g) Whether the procedure was simultaneous or sequential; 25 (h) All statements made in the presence of or by each eyewitness; 26 (i) Whether the eyewitness selected a different person as the perpe- 27 trator or indicated a belief that he or she could not identify the 28 perpetrator; 29 (j) Whether before the procedure the eyewitness was instructed that 30 the perpetrator might or might not be present; and 31 (k) Whether the administrator of each procedure knew which person was 32 the suspect, and whether, before the procedure, the eyewitness was 33 instructed that the administrator did not know which person was the 34 suspect. 35 3. Disclosure prior to guilty plea deadline. (a) Upon a felony 36 complaint, where the prosecutor has made a pre-indictment guilty plea 37 offer, the prosecutor must disclose to the defense, and permit the 38 defense to discover, inspect, copy or photograph, and test all items and 39 information that would be discoverable under subdivision one of this 40 section that are in the possession, custody or control of the prose- 41 cution. Such disclosure must be completed within a reasonable time, but 42 not less than three days, prior to the expiration date of any guilty 43 plea offer by the prosecution or any deadline imposed by the court for a 44 guilty plea. A defendant may waive his or her rights under this subdi- 45 vision; except that a guilty plea offer may not be conditioned on such 46 waiver. 47 (b) Upon an indictment, superior court information, prosecutor's 48 information, simplified information charging a misdemeanor, information, 49 or misdemeanor complaint, the prosecution must comply with all disclo- 50 sure required by subdivision one of this section and file a certificate 51 of compliance pursuant to section 240.45 of this article at least seven 52 days prior to the expiration date of any guilty plea offer by the prose- 53 cution or any deadline imposed by the court for a guilty plea. If the 54 prosecution does not comply with this subdivision, the offer shall be 55 deemed available to the defendant until seven days after the prosecution 56 has filed a certificate of compliance. A defendant may waive his or herA. 4883 5 1 rights under this subdivision; except that a guilty plea offer may not 2 be conditioned on such waiver. 3 4. Reciprocal discovery. The defendant shall, subject to constitu- 4 tional limitations and within ninety days of when the prosecution files 5 its certificate of compliance pursuant to section 240.45 of this arti- 6 cle, disclose to the prosecution, and permit the prosecution to discov- 7 er, inspect, copy, photograph, or test: 8 (a) Intended expert opinion evidence, including the name, business 9 address, current curriculum vitae, and a list of publications of each 10 intended expert witness, and all reports prepared by the expert that 11 pertain to the case, or if no report is prepared, a written statement of 12 the facts and opinions to which the expert is expected to testify and a 13 summary of the grounds for each opinion; 14 (b) All photographs, tangible objects, video and audio recordings, 15 electronic recordings and data, reports of physical or mental examina- 16 tions of any person or of scientific tests or experiments, and exhibits 17 that the defendant intends to introduce at trial in his or her case in 18 chief; and 19 (c) All statements, written or recorded or summarized in any writing 20 or recording made by a witness who the defendant intends to call at 21 trial, other than statements made by the defendant, except that disclo- 22 sure under this subdivision is not required until the close of the pros- 23 ecution's case in chief. 24 5. Redactions permitted. Either party is permitted to redact social 25 security numbers and tax numbers from disclosures. 26 § 240.15 Automatic discovery; sanctions. 27 Section 240.10 of this article shall have the force and effect of a 28 court order, and failure to provide discovery pursuant to such section 29 may result in application of any sanctions permitted for noncompliance 30 with a court order under section 240.30 of this article. However, if in 31 the judgment of either party good cause exists for declining to make any 32 of the disclosures set forth in section 240.10 of this article, it may 33 move for a protective order pursuant to section 240.60 of this article 34 and production of the item shall be stayed pending a ruling by the 35 court. The opposing party shall be notified in writing what specific 36 information or material has not been disclosed and the grounds for the 37 protective order sought or the reason that the information or material 38 cannot immediately be disclosed. 39 § 240.20 Automatic discovery; depositions. 40 1. Obtaining depositions. At any time after the commencement of a 41 criminal action, upon service of a subpoena, the defendant may obtain 42 the deposition of any person on oral examination, where such person's 43 testimony is material to the case or relevant to the preparation of a 44 defense. A person's statements in a deposition may be used in subsequent 45 proceedings in the same manner as other out-of-court statements. 46 2. Location of deposition. Deposition of a witness shall be taken in 47 the county where the witness lives, or in such other location as is 48 agreed upon by the parties, or at a location designated by the court. 49 The deposition of any person confined in prison shall be taken where 50 such person is confined, unless otherwise ordered by the court. 51 3. Experts. The defendant may discover by deposition the facts and 52 opinions to which an expert is expected to testify. Unless manifest 53 injustice would result, the court shall require that the party seeking 54 discovery from an expert pay the expert a reasonable hourly fee for the 55 time such expert is deposed.A. 4883 6 1 4. Failure of witness to comply. The court may preclude the testimony 2 of any witness who fails to comply with a properly served deposition 3 subpoena from testifying at hearing and/or trial. 4 § 240.25 Automatic discovery; notice and preservation of evidence. 5 1. Notice. Upon receipt of information that any item described in 6 subparagraphs (i) through (xix) of paragraph (a) of subdivision one of 7 section 240.10 of this article exists, except that it is not within the 8 possession, custody or control of the prosecution, or persons under its 9 direction and control, the prosecution shall expeditiously notify the 10 defendant of the existence of the item and all information known to the 11 prosecutor concerning the item's location and the identity of any 12 persons possessing it. 13 2. Preservation order. At any time, a party may move for an order to 14 any individual, agency or other entity in possession, custody or control 15 of items that relate to the subject matter of the case or are otherwise 16 relevant, including but not limited to requiring that such items be 17 preserved for a specified period of time. In addition, the defendant 18 may move for an order to any individual, agency or other entity in 19 possession, custody or control of a crime scene that relates to the 20 subject matter of the case or is otherwise relevant, requiring that 21 counsel for the defendant be granted prompt and reasonable access to 22 inspect, photograph or measure that crime scene, and that the condition 23 of the crime scene remain unchanged in the interim. The court shall hear 24 and rule upon motions made pursuant to this subdivision expeditiously. 25 The court may modify or vacate such an order upon a showing that preser- 26 vation of particular evidence will create significant hardship, on 27 condition that the probative value of said evidence is preserved by a 28 specified alternative means. 29 3. Material held by other governmental personnel. Upon request of the 30 defendant, the prosecutor shall use due diligence and make good faith 31 efforts to make available for disclosure to the defendant materials that 32 would be discoverable under subparagraphs (i) through (xix) of paragraph 33 (a) of subdivision one of section 240.10 of this article but that are in 34 possession, custody, or control of other governmental personnel. Where 35 the prosecutor's efforts are unsuccessful, the court upon motion of the 36 defendant shall issue suitable subpoenas or orders to cause such materi- 37 als to be made available for disclosure to the defendant. 38 4. Material witnesses and physical evidence. When police officers or 39 other law enforcement personnel participate in the investigation of an 40 apparent criminal incident, and provided that it is practicable under 41 the circumstances, they shall request and memorialize contact informa- 42 tion for all persons of whom they are aware with material evidence or 43 information that relate to the subject matter of the case or are other- 44 wise relevant, and shall gather or memorialize apparently material phys- 45 ical evidence of which they are aware. 46 5. Electronic recordings of interviews at police stations or other 47 detention facilities. No oral, written, or sign language statement of a 48 suspect made during an interview at a police station or other detention 49 facility shall be admissible as substantive evidence against that person 50 in any criminal proceeding unless an electronic recording is made of all 51 interviews of the suspect. Each recording must be of the complete inter- 52 view, must include both audio and visual recording, and must be focused 53 upon both the questioner, interpreter, if present, and the suspect 54 throughout. Any photograph, video, or object shown to the defendant 55 during the interview must be preserved for inspection.A. 4883 7 1 6. Certain recordings. The prosecutor shall expeditiously take steps 2 to discover, preserve, and disclose all video, audio, or electronic 3 recordings made in connection with the investigation of an apparent 4 criminal incident, including but not limited to 911 telephone calls, law 5 enforcement radio transmissions, and video recordings made by law 6 enforcement, including body camera footage. 7 § 240.30 Automatic discovery; remedies or sanctions for noncompliance. 8 1. Available remedies or sanctions. For failure to comply with any 9 discovery obligation issued or imposed pursuant to this article, the 10 court shall make a further order for discovery, grant a continuance, 11 order that a hearing be reopened, order that a witness be called or 12 recalled, instruct the jury that it may draw an adverse inference 13 regarding the noncompliance, preclude or strike a witness's testimony or 14 a portion of a witness's testimony, admit or exclude evidence, order a 15 mistrial, order the dismissal of all or some of the charges, or make 16 such other order as it deems just under the circumstances; except that 17 any sanction against the defendant shall comport with the defendant's 18 constitutional right to present a defense, confront witnesses, and pres- 19 ent evidence relevant to his or her defense, and the sanction of 20 precluding a defense witness from testifying shall be permissible only 21 upon a finding that the defendant's failure to comply with the discovery 22 order was willful and motivated by a desire to obtain a tactical advan- 23 tage. 24 2. Need for remedy or sanction; lost or destroyed material. When 25 material or information is discoverable under this article, but it 26 cannot be disclosed because it has been lost or destroyed, the evidence 27 shall be deemed presumptively favorable to the defendant. The court 28 shall impose an appropriate remedy or sanction whenever the party enti- 29 tled to disclosure shows that the lost or destroyed material may have 30 contained some information relevant to a contested issue. 31 3. Need for remedy or sanction; belated disclosure. When material or 32 information is discoverable under this article, but it is disclosed 33 belatedly, the defendant shall be entitled to an adjournment of up to 34 thirty days, or for a reasonable period, whichever is longer. When there 35 has been belated disclosure, the court shall impose an appropriate reme- 36 dy or sanction whenever the party entitled to disclosure shows that it 37 was prejudiced. 38 § 240.35 Automatic discovery; discretionary discovery by order of the 39 court. 40 The court in its discretion may, upon a showing by the defendant that 41 the request is reasonable and that the defendant is unable without undue 42 hardship to obtain the substantial equivalent by other means, order the 43 prosecution, or any individual, agency or other entity subject to the 44 jurisdiction of the court, to make available for disclosure to the 45 defendant any material or information which potentially relates to the 46 subject matter of the case or is otherwise relevant. An application 47 under this section must be on notice to any person or entity affected by 48 the order. The court may, upon request of any person or entity affected 49 by the order, vacate or modify the order if compliance would be unrea- 50 sonable or oppressive. The court may permit a party seeking or opposing 51 a discretionary order of discovery under this section, or another 52 affected person or entity, to submit papers or testify ex parte or in 53 camera. Any such papers and a transcript of such testimony shall be 54 sealed and shall constitute a part of the record on appeal. 55 § 240.40 Automatic discovery; order to grant access to premises.A. 4883 8 1 At any time, the defendant may move for a court order to any individ- 2 ual, agency or other entity in possession, custody or control of a crime 3 scene or other premises that relates to the subject matter of the case 4 or is otherwise relevant, requiring that counsel for the defendant be 5 granted prompt and reasonable access to inspect, photograph or measure 6 that crime scene or those premises, and that the condition of the crime 7 scene or premises remain unchanged in the interim. The court shall hear 8 and rule upon such motions expeditiously. The court may modify or vacate 9 such an order upon a showing that granting access to a particular crime 10 scene or premises will create significant hardship, on condition that 11 the probative value of that location is preserved by a specified alter- 12 native means. 13 § 240.45 Automatic discovery; certificate of compliance. 14 When a party has provided all discovery required by this section or by 15 court order, it shall file with the court a certificate of compliance. 16 The certificate shall state that, to the best of its knowledge and after 17 reasonable inquiry, due diligence, and good faith effort, the party has 18 disclosed and made available all items subject to discovery, and shall 19 identify each item provided. The prosecution shall not be deemed ready 20 for trial for purposes of section 30.30 of this chapter until it has 21 filed a certificate pursuant to this section. If further discovery is 22 subsequently provided, a supplemental certificate shall be filed with 23 the court identifying the additional items provided explaining why the 24 newly provided discovery was not provided prior to the original certif- 25 icate of compliance. 26 § 240.50 Automatic discovery; continuing duty. 27 If either the prosecution or the defense subsequently learns of addi- 28 tional material that it would have been under a duty to disclose or 29 produce pursuant to any provisions of this article at the time of a 30 previous discovery obligation or order, it shall expeditiously notify 31 the other party and shall disclose the material in the same manner as 32 required for initial discovery under this article, but no later than the 33 next scheduled court appearance. 34 § 240.55 Automatic discovery; work product. 35 This section does not authorize discovery by a party of those portions 36 of records, reports, correspondence, memoranda, or internal documents of 37 the adverse party that are only the legal research, opinions, theories, 38 or conclusions of the adverse party or its attorney or the attorney's 39 agents, or of statements of a defendant, written or recorded or summa- 40 rized in any writing or recording, made to the attorney for the defend- 41 ant or the attorney's agents. 42 § 240.60 Automatic discovery; protective orders. 43 1. Standard. Upon a showing of good cause by clear and convincing 44 evidence that disclosure would negatively affect the safety or security 45 of a known person or entity and that any limitation of disclosure is 46 necessary to protect a known person or entity, the court may at any time 47 order that the discovery, disclosure, or inspection be denied, 48 restricted, or deferred, or make such other order as is appropriate, 49 upon written motion of the party seeking the protective order. The court 50 may, for good cause shown, grant discovery to a defendant on the condi- 51 tion that the material to be discovered be available only to counsel for 52 the defendant. This provision does not alter the allocation of the 53 burden of proof with regard to the matter at issue, including privilege. 54 2. Hearing. Upon a request for such an order, the court shall conduct 55 a hearing, either ex parte with just a prosecutor or defense counsel or 56 in the presence of both the prosecutor and defense counsel, within threeA. 4883 9 1 business days to determine whether good cause has been shown. If there- 2 after the court enters an order granting relief, the material submitted 3 in camera must be sealed, along with the minutes to the proceeding and 4 written motions, and shall be preserved in the records of the court to 5 be made available to the appellate court in the event of an appeal. 6 § 240.65 Automatic discovery; amendment of discovery orders. 7 Upon motion of either party made subsequent to an order of the court 8 pursuant to this section, the court may alter or amend the previous 9 order or orders as the interests of justice may require. The court may, 10 for good cause shown, affirm a prior order granting discovery to a 11 defendant upon the additional condition that the material to be discov- 12 ered be available only to counsel for the defendant. 13 § 240.70 Automatic discovery; non-testimonial evidence from the defend- 14 ant. 15 After the filing of an accusatory instrument, and subject to constitu- 16 tional limitations, the court may, upon motion of the prosecution show- 17 ing probable cause to believe the defendant has committed the crime, a 18 clear indication that relevant material evidence will be found, and that 19 the method used to secure it is safe and reliable, require a defendant 20 to provide non-testimonial evidence, including to: 21 1. Appear in a lineup; 22 2. Speak for identification by a witness or potential witness; 23 3. Be fingerprinted; 24 4. Pose for photographs not involving reenactment of an event; 25 5. Permit the taking of samples of the defendant's blood, hair, or 26 other materials of the defendant's body that involves no unreasonable 27 intrusion thereof; 28 6. Provide specimens of the defendant's handwriting; or 29 7. Submit to a reasonable physical or medical inspection of the 30 defendant's body. 31 § 240.75 Automatic discovery; orders regarding DNA comparisons. 32 Where property in the prosecution's possession, custody, or control 33 that consists of a deoxyribonucleic acid ("DNA") profile obtained from 34 probative biological material gathered in connection with the investi- 35 gation or prosecution of the defendant and the defendant establishes 36 that such profile complies with federal bureau of investigation or state 37 requirements, whichever are applicable and as such requirements are 38 applied to law enforcement agencies seeking a keyboard search or similar 39 comparison, and that the data meets state DNA index system or national 40 DNA index system criteria as such criteria are applied to law enforce- 41 ment agencies seeking such a keyboard search or similar comparison, the 42 court may order an entity that has access to the combined DNA index 43 system or its successor system to compare such DNA profile against DNA 44 databanks by keyboard searches, or a similar method that does not 45 involve uploading, upon notice to both parties and the entity required 46 to perform the search, upon a showing by the defendant that such a 47 comparison is material to the presentation of his or her defense and 48 that the request is reasonable. For purposes of this paragraph, a 49 "keyboard search" shall mean a search of a DNA profile against the data- 50 bank in which the profile that is searched is not uploaded to or main- 51 tained in the databank. 52 § 2. Subdivision 9 of section 65.20 of the criminal procedure law, as 53 added by chapter 505 of the laws of 1985 and as renumbered by chapter 54 548 of the laws of 2007, is amended to read as follows: 55 9. (a) Prior to the commencement of the hearing conducted pursuant to 56 subdivision five of this section, the district attorney shall, subjectA. 4883 10 1 to a protective order, comply with the provisions of [subdivision one of2section 240.45] article two hundred forty of this chapter as they 3 concern any witness whom the district attorney intends to call at the 4 hearing and the child witness. 5 (b) Before a defendant calls a witness at such hearing, he or she 6 must, subject to a protective order, comply with the provisions of 7 [subdivision two of section 240.45] article two hundred forty of this 8 chapter as they concern all the witnesses the defendant intends to call 9 at such hearing. 10 § 3. Subdivision 5 of section 200.95 of the criminal procedure law, as 11 added by chapter 558 of the laws of 1982, is amended to read as follows: 12 5. Court ordered bill of particulars. Where a prosecutor has timely 13 served a written refusal pursuant to subdivision four of this section 14 and upon motion, made in writing, of a defendant, who has made a request 15 for a bill of particulars and whose request has not been complied with 16 in whole or in part, the court must, to the extent a protective order is 17 not warranted, order the prosecutor to comply with the request if it is 18 satisfied that the items of factual information requested are authorized 19 to be included in a bill of particulars, and that such information is 20 necessary to enable the defendant adequately to prepare or conduct his 21 defense and, if the request was untimely, a finding of good cause for 22 the delay. Where a prosecutor has not timely served a written refusal 23 pursuant to subdivision four of this section the court must, unless it 24 is satisfied that the people have shown good cause why such an order 25 should not be issued, issue an order requiring the prosecutor to comply 26 or providing for any other [order] remedy or sanction authorized by 27 [subdivision one of] section [240.70] 240.30 of this part. 28 § 4. Subdivision 14 of section 400.27 of the criminal procedure law, 29 as added by chapter 1 of the laws of 1995, is amended to read as 30 follows: 31 14. (a) At a reasonable time prior to the sentencing proceeding or a 32 mental retardation hearing: 33 (i) the prosecutor shall, unless previously disclosed and subject to a 34 protective order, make available to the defendant the statements and 35 information specified in [subdivision one of section 240.45] sections 36 240.10, 240.20 and 240.25 of this part and make available for 37 inspection, photographing, copying or testing the property specified in 38 [subdivision one of section 240.20] such sections; and 39 (ii) the defendant shall, unless previously disclosed and subject to a 40 protective order, make available to the prosecution the statements and 41 information specified in subdivision [two] four of section [240.45] 42 240.10 of this part and make available for inspection, photographing, 43 copying or testing, subject to constitutional limitations, the reports, 44 documents and other property specified in such subdivision [one of45section 240.30]. 46 (b) Where a party refuses to make disclosure pursuant to this section, 47 the provisions of [section 240.35, subdivision one of section 240.40 and48section 240.50] section 240.60 of this part shall apply. 49 (c) If, after complying with the provisions of this section or an 50 order pursuant thereto, a party finds either before or during a sentenc- 51 ing proceeding or mental retardation hearing, additional material 52 subject to discovery or covered by court order, the party shall promptly 53 make disclosure or apply for a protective order pursuant to section 54 240.60 of this part. 55 (d) If the court finds that a party has failed to comply with any of 56 the provisions of this section, the court may enter any of the [orders]A. 4883 11 1 remedies or sanctions specified in [subdivision one of] section [240.70] 2 240.30 of this part. 3 § 5. The opening paragraph of paragraph (b) of subdivision 1 of 4 section 440.30 of the criminal procedure law, as added by chapter 19 of 5 the laws of 2012, is amended to read as follows: 6 In conjunction with the filing or consideration of a motion to vacate 7 a judgment pursuant to section 440.10 of this article by a defendant 8 convicted after a trial, in cases where the court has ordered an eviden- 9 tiary hearing upon such motion, the court may order that the people 10 produce or make available for inspection property, as defined [in subdi-11vision three of section 240.10 of this part] as any existing tangible 12 personal or real property, including, but not limited to, books, 13 records, reports, memoranda, papers, photographs, tapes or other elec- 14 tronic recordings, articles of clothing, fingerprints, blood samples, 15 fingernail scrapings or handwriting specimens, but excluding attorneys' 16 work product, in its possession, custody, or control that was secured in 17 connection with the investigation or prosecution of the defendant upon 18 credible allegations by the defendant and a finding by the court that 19 such property, if obtained, would be probative to the determination of 20 the defendant's actual innocence, and that the request is reasonable. 21 The court shall deny or limit such a request upon a finding that such a 22 request, if granted, would threaten the integrity or chain of custody of 23 property or the integrity of the processes or functions of a laboratory 24 conducting DNA testing, pose a risk of harm, intimidation, embarrass- 25 ment, reprisal, or other substantially negative consequences to any 26 person, undermine the proper functions of law enforcement including the 27 confidentiality of informants, or on the basis of any other factor iden- 28 tified by the court in the interests of justice or public safety. The 29 court shall further ensure that any property produced pursuant to this 30 paragraph is subject to a protective order, where appropriate. The court 31 shall deny any request made pursuant to this paragraph where: 32 § 6. Subdivision 10 of section 450.10 of the penal law, as added by 33 chapter 795 of the laws of 1984, is amended to read as follows: 34 10. Where there has been a failure to comply with the provisions of 35 this section, and where the district attorney does not demonstrate to 36 the satisfaction of the court that such failure has not caused the 37 defendant prejudice, the court shall instruct the jury that it may 38 consider such failure in determining the weight to be given such 39 evidence and may also impose any other [sanction] remedy or sanction set 40 forth in [subdivision one of] section [240.70] 240.30 of the criminal 41 procedure law; provided, however, that unless the defendant has 42 convinced the court that such failure has caused him undue prejudice, 43 the court shall not preclude the district attorney from introducing into 44 evidence the property, photographs, photocopies, or other reproductions 45 of the property or, where appropriate, testimony concerning its value 46 and condition, where such evidence is otherwise properly authenticated 47 and admissible under the rules of evidence. Failure to comply with any 48 one or more of the provisions of this section shall not for that reason 49 alone be grounds for dismissal of the accusatory instrument. 50 § 7. Subdivision 5 of section 480.10 of the penal law, as added by 51 chapter 655 of the laws of 1990, is amended to read as follows: 52 5. In addition to information required to be disclosed pursuant to 53 article two hundred forty of the criminal procedure law, when forfeiture 54 is sought pursuant to this article, and following the defendant's 55 arraignment on the special forfeiture information, the court shall order 56 discovery of any information not otherwise disclosed which is materialA. 4883 12 1 and reasonably necessary for preparation by the defendant with respect 2 to a forfeiture proceeding brought pursuant to this article. Such mate- 3 rial shall include those portions of the grand jury minutes and such 4 other information which pertain solely to the special forfeiture infor- 5 mation and shall not include information which pertains to the criminal 6 charges. Upon application of the prosecutor, the court may issue a 7 protective order pursuant to section [240.40] 240.60 of the criminal 8 procedure law with respect to any information required to be disclosed 9 pursuant to this subdivision. 10 § 8. This act shall take effect on the ninetieth day after it shall 11 have become a law and shall apply to all arraignments commencing on or 12 after such effective date; provided, however, that the amendments to 13 subdivision 9 of section 65.20 of the criminal procedure law made by 14 section two of this act shall not affect the repeal of such section and 15 shall be deemed repealed therewith.
