Bill Text: NY A08085 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to the discovery provisions applicable to juvenile delinquency proceedings in family court with regard to the timing of discovery, disclosure prior to certain guilty pleas, DNA evidence, court orders, and the admissibility of discovery.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - referred to codes [A08085 Detail]
Download: New_York-2019-A08085-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8085 2019-2020 Regular Sessions IN ASSEMBLY May 31, 2019 ___________ Introduced by M. of A. JOYNER -- read once and referred to the Committee on Children and Families AN ACT to amend the family court act and the judiciary law, in relation to the discovery provisions applicable to juvenile delinquency proceedings in family court; and to repeal certain provisions of the family court act relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Sections 331.1, 331.2, 331.3, 331.4, 331.5, 331.6 and 331.7 2 of the family court act are REPEALED. 3 § 2. The family court act is amended by adding thirteen new sections 4 331.1, 331.2, 331.3, 331.4, 331.5, 331.6, 331.7, 331.8, 331.9, 331.10, 5 331.11, 331.12 and 331.13 to read as follows: 6 § 331.1. Initial appearance. 1. Disclosure. At the respondent's 7 initial appearance, as defined in section 320.1 of this article, the 8 presentment agency shall disclose to the respondent: 9 (a) any police or other law enforcement agency reports and written 10 witness statements relating to the juvenile delinquency proceeding 11 against the respondent that are within the presentment agency's 12 possession at that time; 13 (b) electronic recordings relating to the juvenile delinquency 14 proceeding against the respondent that are within the presentment agen- 15 cy's possession at that time, in accordance with paragraph (g) of subdi- 16 vision one of section 331.3 of this part; and 17 (c) exculpatory information known to the presentment agency at that 18 time. 19 2. Copy of records. If in the exercise of reasonable diligence and due 20 to the limited availability of resources for downloading or copying 21 recordings, a copy of an electronic recording discoverable under this 22 section is unavailable at the initial appearance, a copy shall be made 23 and disclosed to the respondent as soon as practicable but not later EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11961-01-9A. 8085 2 1 than five calendar days after the initial appearance, provided, however, 2 that if the respondent is in detention, a copy shall be made not later 3 than three days after the initial appearance. Portions of materials 4 under this section claimed to be non-discoverable may be withheld pend- 5 ing a prompt request by the presentment agency for a determination and 6 ruling of the court under section 331.11 of this part; but the discover- 7 able portions of such materials shall be disclosed to the extent practi- 8 cable. 9 § 331.2. Timing of discovery after the initial appearance. 1. 10 Presentment agency's performance of obligations. (a) The presentment 11 agency shall perform its initial discovery obligations under subdivision 12 one of section 331.3 of this part as soon as practicable but not later 13 than fifteen calendar days after the respondent's initial appearance or 14 not later than three days prior to the first scheduled fact-finding 15 hearing date, whichever is earlier. Portions of materials claimed to be 16 non-discoverable may be withheld pending a determination and ruling of 17 the court under section 331.11 of this part; but the respondent shall be 18 notified in writing that information has not been disclosed under a 19 particular subdivision of this section, and the discoverable portions of 20 such materials shall be disclosed to the extent practicable. When the 21 discoverable materials are exceptionally voluminous, the time periods in 22 this paragraph may be stayed by up to an additional ten calendar days 23 or, if the respondent is in detention, up to an additional period of 24 three days without need for a motion pursuant to subdivision two of 25 section 331.11 of this part. 26 (b) The presentment agency shall perform its supplemental discovery 27 obligations under subdivision three of section 331.3 of this part as 28 soon as practicable but not later than fifteen calendar days prior to 29 the first scheduled fact-finding hearing date, unless the respondent is 30 in detention, in which case the presentment agency shall fulfill its 31 supplemental discovery obligations not later than three days prior to 32 the first scheduled fact-finding hearing date. 33 2. Respondent's performance of obligations. The respondent shall 34 perform his or her discovery obligations under subdivision four of 35 section 331.3 of this part not later than twenty-five calendar days 36 after being served with the presentment agency's certificate of compli- 37 ance pursuant to subdivision two of section 331.6 of this part or not 38 later than three days prior to the first scheduled fact-finding hearing 39 date, whichever is earlier. Portions of materials claimed to be non-dis- 40 coverable may be withheld pending a determination and ruling of the 41 court under section 331.11 of this part; but the presentment agency 42 shall be notified in writing that information has not been disclosed 43 under a particular section. 44 3. Timing adjustment. The time periods in this section may be adjusted 45 by the court upon a finding of good cause based upon the needs of the 46 case, the detention status of the respondent and the need for a fair and 47 expeditious resolution of the proceeding. 48 § 331.3. Automatic discovery. 1. Initial discovery for the respondent. 49 The presentment agency shall disclose to the respondent, and permit the 50 respondent to discover, inspect, copy, photograph and test, all items 51 and information that relate to the subject matter of the case and are in 52 the possession, custody or control of the presentment agency or persons 53 under the presentment agency's direction or control, including but not 54 limited to: 55 (a) All written or recorded statements, and the substance of all oral 56 statements, made by the respondent or a co-respondent to a public serv-A. 8085 3 1 ant engaged in law enforcement activity or to a person then acting under 2 his or her direction or in cooperation with him or her. 3 (b) All transcripts of the testimony of a person who has testified 4 before a grand jury in a related criminal proceeding, including but not 5 limited to the respondent or a co-respondent. The presentment agency 6 shall request that the prosecutor of the matter before the grand jury 7 provide a transcript of the testimony and, upon receipt of the request, 8 the prosecutor shall promptly apply to the appropriate criminal court, 9 with written notice to the presentment agency and the respondent, for a 10 written order pursuant to section three hundred twenty-five of the judi- 11 ciary law releasing a transcript to the presentment agency; provided, 12 however, that the transcripts of the grand jury proceedings in a case 13 removed from the youth part pursuant to article seven hundred twenty- 14 five of the criminal procedure law shall be annexed to the petition or 15 transferred to the family court in accordance with subdivision seven of 16 section 311.1 of this article. If in the exercise of reasonable dili- 17 gence, and due to the limited availability of transcription resources, a 18 transcript is unavailable for disclosure within the time period speci- 19 fied in subdivision one of section 331.2 of this part, such time period 20 may be stayed by up to an additional fifteen calendar days or, if the 21 respondent is in detention, an additional period of three days, without 22 need for a motion pursuant to subdivision two of section 331.11 of this 23 part; provided, however, that such disclosure shall be made as soon as 24 practicable and not later than fifteen calendar days prior to the first 25 scheduled fact-finding hearing date, unless the respondent is in 26 detention, in which case such disclosure shall be made not later than 27 three days prior to the first scheduled fact-finding hearing date, 28 unless an order is obtained pursuant to section 331.11 of this part. 29 When the court is required to review grand jury transcripts, the 30 presentment agency shall disclose such transcripts to the court expe- 31 ditiously upon receipt by such agency, notwithstanding the otherwise 32 applicable time periods for disclosure in this part. 33 (c) The names of, and adequate alternative contact information for, 34 all persons other than law enforcement personnel whom the presentment 35 agency knows to have evidence or information relevant to any act of 36 juvenile delinquency charged or to any potential defense thereto, 37 including a designation by the presentment agency as to which of those 38 persons may be called as witnesses. Nothing in this paragraph shall 39 require the disclosure of physical addresses; provided, however, upon a 40 motion and good cause shown the court may direct the disclosure of a 41 physical residence. Information under this subdivision relating to a 42 confidential informant may be withheld, and redacted from discovery 43 materials, without need for a motion pursuant to section 331.11 of this 44 part; but the presentment agency shall notify the respondent in writing 45 that such information has not been disclosed, unless the court rules 46 otherwise for good cause shown. 47 (d) The name and work affiliation of all law enforcement personnel 48 whom the presentment agency knows to have evidence or information rele- 49 vant to any offense charged or to any potential defense thereto, includ- 50 ing a designation by the presentment agency as to which of those persons 51 may be called as witnesses. Information under this subdivision relating 52 to undercover personnel may be withheld, and redacted from discovery 53 materials, without need for a motion pursuant to section 331.11 of this 54 part; but the presentment agency shall notify the respondent in writing 55 that such information has not been disclosed, unless the court rules 56 otherwise for good cause shown.A. 8085 4 1 (e) All statements, written or recorded or summarized in any writing 2 or recording, made by persons who have evidence or information relevant 3 to any offense charged or to any potential defense thereto, including 4 all police reports, notes of police and other investigators, and law 5 enforcement agency reports. This provision also includes statements, 6 written or recorded or summarized in any writing or recording, by 7 persons to be called as witnesses at pre-fact-finding hearings. 8 (f) Expert opinion evidence, including the name, business address, 9 current curriculum vitae, a list of publications, and all proficiency 10 tests and results administered or taken in the current employment or 11 within the past ten years, whichever is longer, of each expert witness 12 whom the presentment agency intends to call as a witness at the fact- 13 finding hearing or at a pre-trial motion hearing, and all reports 14 prepared by the expert that pertain to the case, or if no report is 15 prepared, a written statement of the facts and opinions to which the 16 expert is expected to testify and a summary of the grounds for each 17 opinion. If in the exercise of reasonable diligence this information is 18 unavailable for disclosure within the time period specified in subdivi- 19 sion one of section 331.2 of this part, that period shall be stayed 20 without need for a motion pursuant to subdivision two of section 331.11 21 of this part; except that the presentment agency shall notify the 22 respondent in writing that such information has not been disclosed, and 23 such disclosure shall be made as soon as practicable and not later than 24 fifteen calendar days prior to the first scheduled fact-finding hearing 25 date, or, if the respondent is in detention, not later than three days 26 prior to the first scheduled fact-finding hearing date, unless an order 27 is obtained pursuant to section 331.11 of this part. When the present- 28 ment agency's expert witness is being called in response to disclosure 29 of an expert witness by the respondent, the court shall alter a sched- 30 uled fact-finding hearing date, if necessary, to allow the presentment 31 agency fifteen calendar days to make the disclosure and the respondent 32 fifteen calendar days to prepare and respond to the new materials, 33 unless the respondent is in detention, in which case the court may alter 34 the scheduled fact-finding hearing date, if necessary, to allow the 35 presentment agency an additional three days to make the disclosure and 36 the respondent three days to prepare and respond to the new materials. 37 (g) All tapes or other electronic recordings, including all electronic 38 recordings of 911 telephone calls made or received in connection with 39 the alleged incident of juvenile delinquency, and a designation by the 40 presentment agency as to which of the recordings under this paragraph 41 the presentment agency intends to introduce at fact-finding hearing or a 42 pre-trial motion hearing. If the discoverable materials under this para- 43 graph exceed ten hours in total length, the presentment agency may 44 disclose only the recordings that it intends to introduce at fact-find- 45 ing hearing or a pre-fact-finding hearing, along with a list of the 46 source and approximate quantity of other recordings and their general 47 subject matter if known, and the respondent shall have the right upon 48 request to obtain recordings not previously disclosed. The presentment 49 agency shall disclose the requested materials as soon as practicable and 50 not less than fifteen calendar days after the respondent's request, or, 51 if the respondent is in detention, not less than three days after the 52 respondent's request, unless an order is obtained pursuant to section 53 331.11 of this part. 54 (h) All photographs and drawings made or completed by a public servant 55 engaged in law enforcement activity, or which were made by a person whom 56 the presentment agency intends to call as a witness at fact-finding or aA. 8085 5 1 pre-trial motion hearing or which relate to the subject matter of the 2 proceeding. 3 (i) All photographs, photocopies and reproductions made by or at the 4 direction of law enforcement personnel of any property prior to its 5 release. 6 (j) All reports, documents, records, data, calculations or writings, 7 including but not limited to preliminary tests and screening results and 8 bench notes and analyses performed or stored electronically, concerning 9 physical or mental examinations, or scientific tests or experiments or 10 comparisons, relating to the juvenile delinquency proceeding which were 11 made by or at the request or direction of a public servant engaged in 12 law enforcement activity, or which were made by a person whom the 13 presentment agency intends to call as a witness at fact-finding or a 14 pre-trial motion hearing, or which the presentment agency intends to 15 introduce at fact-finding or a pre-trial motion hearing. Information 16 under this paragraph also includes, but is not limited to, laboratory 17 information management system records relating to such materials, any 18 preliminary or final findings of non-conformance with accreditation, 19 industry or governmental standards or laboratory protocols, and any 20 conflicting analyses or results by laboratory personnel regardless of 21 the laboratory's final analysis or results. If the presentment agency 22 submitted one or more items for testing to, or received results from, a 23 forensic science laboratory or similar entity not under the presentment 24 agency's direction or control, the court on motion of a party shall 25 issue subpoenas or orders to such laboratory or entity to cause materi- 26 als under this paragraph to be made available for disclosure. 27 (k) All evidence and information, including that which is known to 28 police or other law enforcement agencies acting on the government's 29 behalf in the case, that tends to: (i) negate the respondent's guilt as 30 to a charged act of juvenile delinquency; (ii) reduce the degree of or 31 mitigate the respondent's culpability as to a charged act of juvenile 32 delinquency; (iii) support a potential defense to a charged act of juve- 33 nile delinquency; (iv) impeach the credibility of a testifying present- 34 ment agency witness; (v) undermine evidence of the respondent's identity 35 as a perpetrator of a charged act of juvenile delinquency; (vi) provide 36 a basis for a motion to suppress evidence; or (vii) mitigate the 37 restrictiveness of the disposition. Information under this subdivision 38 shall be disclosed whether or not such information is recorded in tangi- 39 ble form and irrespective of whether the presentment agency credits the 40 information. The presentment agency shall disclose the information expe- 41 ditiously upon its receipt and shall not delay disclosure if it is 42 obtained earlier than the time period for disclosure in subdivision one 43 of section 331.2 of this part. 44 (l) A summary of all promises, rewards and inducements made to, or in 45 favor of, persons who may be called as witnesses, as well as requests 46 for consideration by persons who may be called as witnesses and copies 47 of all documents relevant to a promise, reward or inducement. 48 (m) A list of all tangible objects obtained from, or allegedly 49 possessed by, the respondent or a co-respondent. The list shall include 50 a designation by the presentment agency as to which objects were phys- 51 ically or constructively possessed by the respondent and were recovered 52 during a search or seizure by a public servant or an agent thereof, and 53 which tangible objects were recovered by a public servant or an agent 54 thereof after allegedly being abandoned by the respondent. If the 55 presentment agency intends to prove the respondent's possession of any 56 tangible objects by means of a statutory presumption of possession, itA. 8085 6 1 shall designate such intention as to each such object. If reasonably 2 practicable, the presentment agency shall also designate the location 3 from which each tangible object was recovered. There is also a right to 4 inspect, copy, photograph and test the listed tangible objects. 5 (n) Whether a search warrant has been executed and all documents 6 relating thereto, including but not limited to the warrant, the warrant 7 application, supporting affidavits, a police inventory of all property 8 seized under the warrant, and a transcript of all testimony or other 9 oral communications offered in support of the warrant application. 10 (o) All tangible property that relates to the subject matter of the 11 case, along with a designation of which items the presentment agency 12 intends to introduce in its case-in-chief at fact-finding hearing or at 13 a pre-trial motion hearing. If in the exercise of reasonable diligence 14 the presentment agency has not formed an intention within the time peri- 15 od specified in subdivision one of section 331.2 of this part that an 16 item under this subdivision will be introduced at fact-finding hearing 17 or at a pre-trial motion hearing, the presentment agency shall notify 18 the respondent in writing, and the time period in which to designate 19 items as exhibits shall be stayed without need for a motion pursuant to 20 subdivision two of section 331.11 of this part; but the disclosure shall 21 be made as soon as practicable, provided, however, that if the respond- 22 ent is in detention, such disclosure shall be made no later than three 23 days prior to the first scheduled fact-finding hearing date. All proper- 24 ty under this subdivision is subject to the continuing duty to disclose 25 pursuant to section 331.9 of this part. 26 (p) The results of complete checks of juvenile delinquency fingerprint 27 records or criminal history records, as applicable, as well as any 28 history of juvenile delinquency adjudications known to the presentment 29 agency and not sealed, for all respondents and all persons designated as 30 potential presentment agency witnesses pursuant to paragraph (c) of this 31 subdivision, other than those witnesses who are experts. 32 (q) When it is known to the presentment agency, the existence of any 33 pending criminal action against all persons designated as potential 34 presentment agency witnesses pursuant to paragraph (c) of this subdivi- 35 sion. 36 (r) The approximate date, time and place of the offense or offenses 37 charged and of the respondent's seizure and arrest. 38 (s) In any juvenile delinquency proceeding alleging a violation of the 39 vehicle and traffic law, all records of calibration, certification, 40 inspection, repair or maintenance of machines and instruments utilized 41 to perform any scientific tests and experiments, including but not 42 limited to any test of a person's breath, blood, urine or saliva, for 43 the period of six months prior and six months after such test was 44 conducted, including the records of gas chromatography related to the 45 certification of all reference standards and the certification certif- 46 icate, if any, held by the operator of the machine or instrument. 47 (t) Any presentment agency alleging a violation of section 156.05 or 48 156.10 of the penal law, the time, place and manner such violation 49 occurred. 50 (u) (i) A copy of all electronically created or stored information 51 seized or obtained by or on behalf of law enforcement from: (A) the 52 respondent as described in subparagraph (ii) of this paragraph; or (B) a 53 source other than the respondent which relates to the subject matter of 54 the proceeding. 55 (ii) If the electronically created or stored information originates 56 from a device, account, or other electronically stored source that theA. 8085 7 1 presentment agency believes the respondent owned, maintained, or had 2 lawful access to and is within the possession, custody or control of the 3 presentment agency or persons under the presentment agency's direction 4 or control, the presentment agency shall provide a complete copy of the 5 electronically created or stored information from the device or account 6 or other source, and a designation by the presentment agency as to which 7 portions it intends to introduce. 8 (iii) If possession of such electronically created or stored informa- 9 tion would be a crime if committed by an adult under New York state or 10 federal law, the presentment agency shall make those portions of the 11 electronically created or stored information that are not criminal to 12 possess available as specified under this paragraph and shall afford 13 counsel for the respondent access to inspect contraband portions at a 14 supervised location that provides regular and reasonable hours for such 15 access, such as a presentment agency's office, police station, or court. 16 (iv) This paragraph shall not be construed to alter or in any way 17 affect the right to be free from unreasonable searches and seizures or 18 such other rights a suspect or respondent may derive from the state 19 constitution or the United States constitution. If in the exercise of 20 reasonable diligence the information under this paragraph is not avail- 21 able for disclosure within the time period required by subdivision one 22 of section 331.2 of this part, that period shall be stayed without need 23 for a motion pursuant to subdivision two of section 331.11 of this part, 24 except that the presentment agency shall notify the respondent in writ- 25 ing that such information has not been disclosed, and such disclosure 26 shall be made as soon as practicable and not later than fifteen calendar 27 days prior to the first scheduled fact-finding hearing date or, if the 28 respondent is in detention, such disclosure shall be made no later than 29 three days prior to the first scheduled fact-finding hearing date, 30 unless an order is obtained pursuant to section 331.11 of this part. 31 2. Duties of the presentment agency. The presentment agency shall make 32 a diligent, good faith effort to ascertain the existence of material or 33 information discoverable under subdivision one of this section and to 34 cause such material or information to be made available for discovery 35 where it exists but is not within the presentment agency's possession, 36 custody or control; provided that the presentment agency shall not be 37 required to obtain by subpoena duces tecum material or information which 38 the respondent may thereby obtain. For purposes of subdivision one of 39 this section, all items and information related to the presentment agen- 40 cy of a charge in the possession of any New York state or local police 41 or law enforcement agency, and any information in the possession of a 42 laboratory having contact with evidence related to the presentment agen- 43 cy of a charge, shall be deemed to be in the possession of the present- 44 ment agency. This subdivision shall not require the presentment agency 45 to ascertain the existence of witnesses not known to the police or 46 another law enforcement agency, or the written or recorded statements 47 thereof, under paragraph (c) or (e) of subdivision one of this section. 48 3. Supplemental discovery for the respondent. The presentment agency 49 shall disclose to the respondent a list of all misconduct and acts of 50 juvenile delinquency of the respondent not charged in the petition, 51 which the presentment agency intends to use at fact-finding hearing for 52 purposes of (a) impeaching the credibility of the respondent, or (b) as 53 substantive proof of any material issue in the proceeding. In addition, 54 the presentment agency shall designate whether it intends to use each 55 listed act for impeachment and/or as substantive proof.A. 8085 8 1 4. Reciprocal discovery for the presentment agency. (a) The respondent 2 shall, subject to constitutional limitations, disclose to the present- 3 ment agency, and permit the presentment agency to discover, inspect, 4 copy or photograph, any material and relevant evidence within the 5 respondent's or counsel for the respondent's possession or control that 6 is discoverable under paragraphs (f), (g), (h), (j), (l) and (o) of 7 subdivision one of this section, which the respondent intends to intro- 8 duce at fact-finding or a pre-trial motion hearing, and the names, 9 addresses, birth dates, and all statements, written or recorded or 10 summarized in any writing or recording, of those persons other than the 11 respondent whom the respondent intends to call as witnesses at fact- 12 finding hearing or at a pre-trial motion hearing. 13 (b) Disclosure of the name, address, birth date, and all statements, 14 written or recorded or summarized in any writing or recording, of a 15 person whom the respondent intends to call as a witness for the sole 16 purpose of impeaching a presentment agency witness is not required until 17 after the presentment agency witness has testified at fact-finding hear- 18 ing. 19 (c) If in the exercise of reasonable diligence the reciprocally 20 discoverable information under paragraph (f) or (o) of subdivision one 21 of this section is unavailable for disclosure within the time period 22 specified in subdivision two of section 331.2 of this part, such time 23 period shall be stayed without need for a motion pursuant to subdivision 24 two of section 331.11 of this part; but the disclosure shall be made as 25 soon as practicable, provided, however, that if the respondent is in 26 detention, such disclosure shall be made no later than three days prior 27 to the first scheduled fact-finding hearing date. All reciprocally 28 discoverable information under this subdivision is subject to the 29 continuing duty to disclose pursuant to section 331.9 of this part. 30 5. Stay of automatic discovery; remedies and sanctions. Sections 31 331.1 and 331.2 of this part and subdivisions one, two, three and four 32 of this section shall have the force and effect of a court order, and 33 failure to provide discovery pursuant to such section or subdivision may 34 result in application of any remedies or sanctions permitted for non- 35 compliance with a court order under section 331.12 of this part. Howev- 36 er, if in the judgment of either party, good cause exists for declining 37 to make any of the disclosures set forth above, such party may move for 38 a protective order pursuant to section 331.11 of this part and 39 production of the item shall be stayed pending a ruling by the court. 40 The opposing party shall be notified in writing that information has not 41 been disclosed under a particular section. When some parts of material 42 or information are discoverable but in the judgment of a party good 43 cause exists for declining to disclose other parts, the discoverable 44 parts shall be disclosed and the disclosing party shall give notice in 45 writing that non-discoverable parts have been withheld. 46 6. Redactions permitted. Either party may redact social security 47 numbers and tax numbers from disclosures under this part. 48 7. Presumption of openness. There shall be a presumption in favor of 49 disclosure when interpreting sections 331.1, 331.2 and 331.4 of this 50 part and subdivision one of this section. 51 § 331.4. Disclosure prior to an admission by the respondent; waiver of 52 discovery by respondent. 1. Disclosure of crime. Where the presentment 53 agency has made an offer to accept an admission pursuant to section 54 321.3 of this article to an act that, if committed by an adult, would be 55 a crime, the presentment agency shall disclose to the respondent, and 56 permit the respondent to discover, inspect, copy, photograph and test,A. 8085 9 1 all items and information that would be discoverable prior to the fact- 2 finding hearing under subdivision one of section 331.3 of this part and 3 are in the possession, custody or control of the presentment agency. The 4 presentment agency shall disclose the discoverable items and information 5 not less than three calendar days prior to the expiration date of the 6 offer by the presentment agency for the respondent to make an admission 7 or any deadline imposed by the court for acceptance of the offer of an 8 admission. 9 2. Timing of disclosure. If the presentment agency does not comply 10 with the requirements of this subdivision, then, notwithstanding any 11 other provision of law, such offer shall be deemed available to the 12 respondent until three calendar days after the presentment agency has 13 complied, absent extraordinary circumstances involving new adverse 14 information bearing on the respondent occurring or discovered in the 15 interim that, after appropriate notice and an opportunity for a hearing, 16 are shown by the presentment agency and found by the court. Where the 17 offer of an admission has lapsed or been withdrawn in light of non-com- 18 pliance by the presentment agency with this subdivision, the respondent 19 may make a motion alleging such non-compliance and the court shall 20 consider the impact of any non-compliance on the respondent's decision 21 to accept or reject the offer of an admission. If the court finds that 22 the non-compliance materially affected the respondent's decision and if 23 the presentment agency declines to reinstate the lapsed or withdrawn 24 plea offer, the court, as a presumptive minimum sanction, shall preclude 25 the admission at trial of any evidence not disclosed as required under 26 this subdivision. The court may take other additional appropriate 27 action as necessary to address the non-compliance. 28 3. Exception. The rights under this subdivision do not apply to items 29 or information that are the subject of a protective order under section 30 331.11 of this part; but if such information tends to be exculpatory, 31 the court shall reconsider the protective order. 32 4. Waiver. A respondent may provide a voluntary, knowing and intelli- 33 gent waiver in the presence of his or her counsel of his or her rights 34 under this section; but an offer of an admission may not be conditioned 35 on such waiver. 36 § 331.5. Court orders for preservation, access or discovery. 1. Order 37 to preserve evidence. At any time, a party may move for a court order to 38 any individual, agency or other entity in possession, custody or control 39 of items which relate to the subject matter of the case or are otherwise 40 relevant, requiring that such items be preserved for a specified period 41 of time. The court shall hear and rule upon such motions expeditiously. 42 The court may modify or vacate such an order upon a showing that preser- 43 vation of particular evidence will create significant hardship to such 44 individual, agency or entity, on condition that the probative value of 45 that evidence is preserved by a specified alternative means. 46 2. Order to grant access to premises. At any time, the respondent may 47 move for a court order to any individual, agency or other entity in 48 possession, custody or control of a crime scene or other premises that 49 relates to the subject matter of the case or is otherwise relevant, 50 requiring that counsel for the respondent be granted prompt and reason- 51 able access to inspect, photograph or measure such crime scene or prem- 52 ises, and that the condition of the crime scene or premises remain 53 unchanged in the interim. The court shall consider the respondent's 54 expressed need for access to the premises including the risk that the 55 respondent will be deprived of evidence or information relevant to the 56 case, the position of any individual or entity with possessory or owner-A. 8085 10 1 ship rights to the premises, the nature of the privacy interest and any 2 perceived or actual hardship of the individual or entity with possessory 3 or ownership rights, and the position of the presentment agency with 4 respect to any application for access to the premises. The court may 5 deny access to the premises when the probative value of access to such 6 location has been or will be preserved by specified alternative means. 7 If the court grants access to the premises, the individual or entity 8 with ownership or possessory rights to the premises may request law 9 enforcement presence at the premises while the respondent's counsel or a 10 representative thereof is present. 11 3. Discretionary discovery by order of the court. The court in its 12 discretion may, upon a showing by the respondent that the request is 13 reasonable and that the respondent is unable without undue hardship to 14 obtain the substantial equivalent by other means, order the presentment 15 agency, or any individual, agency or other entity subject to the juris- 16 diction of the court, to make available for disclosure to the respondent 17 any material or information which potentially relates to the subject 18 matter of the case and is reasonably likely to be material. 19 4. Procedure. A motion under this section shall be on notice to any 20 individual, agency or entity affected by the order. A motion may be made 21 orally on the record so long as such notice is provided. The court may, 22 on its own or upon request of any individual, agency or entity affected 23 by the order, modify or vacate the order if compliance would be unrea- 24 sonable or will create significant hardship to such individual, agency 25 or entity. For good cause shown, the court may permit a party seeking or 26 opposing a discretionary order of discovery under this subdivision, or 27 another affected individual, agency or entity, to submit papers or, for 28 good cause shown, testify on the record ex parte or in camera. For good 29 cause shown, any such papers and a transcript of such testimony may be 30 sealed and shall constitute a part of the record on appeal. 31 § 331.6. Court ordered procedures to facilitate compliance; certif- 32 icates of compliance. 1. Discretion of courts. To facilitate compliance 33 with this part, and to reduce or streamline litigation of any disputes 34 about discovery, the court in its discretion may issue an order: 35 (a) requiring that the presentment agency and counsel for the respond- 36 ent diligently confer to attempt to reach an accommodation as to any 37 dispute concerning discovery prior to seeking a ruling from the court; 38 (b) requiring a discovery compliance conference at a specified time 39 prior to the fact-finding hearing between the presentment agency, coun- 40 sel for all respondents, and the court or its staff; 41 (c) requiring the presentment agency to file a certificate of compli- 42 ance that states that the presentment agency and/or an appropriate named 43 agent has made reasonable inquiries of all police officers and other 44 persons who have participated in investigating or evaluating the case 45 about the existence of any favorable evidence or information within 46 paragraph (k) of subdivision one of section 331.3 of this part, includ- 47 ing such evidence or information that was not reduced to writing or 48 otherwise memorialized or preserved as evidence, and has disclosed any 49 such information to the respondent; and/or 50 (d) requiring other measures or proceedings designed to carry into 51 effect the goals of this part. 52 2. Certificates of compliance. (a) When the presentment agency has 53 provided the discovery required by subdivision one of section 331.3 of 54 this part, except for any items or information that are the subject of 55 an order pursuant to section 331.11 of this part, it shall serve upon 56 the respondent and file with the court a certificate of compliance. TheA. 8085 11 1 certificate of compliance shall state that, after exercising due dili- 2 gence and making reasonable inquiries to ascertain the existence of 3 material and information subject to discovery, the presentment agency 4 has disclosed and made available all known material and information 5 subject to discovery. It shall also identify the items provided. If 6 additional discovery is subsequently provided prior to the fact-finding 7 hearing pursuant to section 331.9 of this part, a supplemental certif- 8 icate shall be served upon the respondent and filed with the court iden- 9 tifying the additional material and information provided. No adverse 10 consequence to the presentment agency or the prosecutor shall result 11 from the filing of a certificate of compliance in good faith; but the 12 court may grant a remedy or sanction for a discovery violation as 13 provided in section 331.12 of this part. 14 (b) When the respondent has provided all discovery required by subdi- 15 vision four of section 331.3 of this part, except for any items or 16 information that are the subject of an order pursuant to section 331.11 17 of this part, counsel for the respondent shall serve upon the present- 18 ment agency and file with the court a certificate of compliance. The 19 certificate shall state that, after exercising due diligence and making 20 reasonable inquiries to ascertain the existence of material and informa- 21 tion subject to discovery, counsel for the respondent has disclosed and 22 made available all known material and information subject to discovery. 23 It shall also identify the items provided. If additional discovery is 24 subsequently provided prior to trial pursuant to section 331.9 of this 25 part, a supplemental certificate shall be served upon the presentment 26 agency and filed with the court identifying the additional material and 27 information provided. No adverse consequence to the respondent or coun- 28 sel for the respondent shall result from the filing of a certificate of 29 compliance in good faith; but the court may grant a remedy or sanction 30 for a discovery violation as provided in section 331.12 of this part. 31 § 331.7. Non-testimonial evidence from the respondent; DNA comparison 32 order. 1. Availability. After the filing of the petition, and subject 33 to constitutional limitations, the court may, upon motion of the 34 presentment agency showing probable cause to believe the respondent has 35 committed the act that if committed by an adult would constitute a 36 crime, a clear indication that relevant material evidence will be found, 37 and that the method used to secure such evidence is safe and reliable, 38 require a respondent to provide non-testimonial evidence, including to: 39 (a) appear in a lineup; 40 (b) speak for identification by a witness or potential witness; 41 (c) be fingerprinted if authorized in accordance with section 306.1 of 42 this article; 43 (d) pose for photographs not involving reenactment of an event, 44 provided respondent is subject to photographing pursuant to section 45 306.1 of this article; 46 (e) permit the taking of samples of the respondent's blood, hair, and 47 other materials of the respondent's body that involves no unreasonable 48 intrusion thereof or a risk of serious physical injury thereto; 49 (f) provide specimens of the respondent's handwriting; and 50 (g) submit to a reasonable physical or medical inspection of the 51 respondent's body. 52 2. Limitations. This section shall not be construed to alter or in any 53 way affect the issuance of a similar court order, as may be authorized 54 by law, before the filing of the petition, consistent with such rights 55 as the respondent may derive from this article, the state constitution 56 or the United States constitution. This section shall not be construedA. 8085 12 1 to alter or in any way affect the administration of a chemical test 2 where otherwise authorized. An order pursuant to this section may be 3 denied, limited or conditioned as provided in section 331.11 of this 4 part. 5 3. DNA comparison order. Where property in the presentment agency's 6 possession, custody, or control consists of a DNA profile obtained from 7 probative biological material gathered in connection with the investi- 8 gation of the crime, and the respondent establishes: (a) that such 9 profile complies with federal bureau of investigation or state require- 10 ments, whichever are applicable and as such requirements are applied to 11 law enforcement agencies seeking a keyboard search or similar compar- 12 ison, and (b) that the data meets state DNA index system or national DNA 13 index system criteria as such criteria are applied to law enforcement 14 agencies seeking such a keyboard search or similar comparison, the court 15 may, upon motion of a respondent against whom a petition is pending, 16 order an entity that has access to the combined DNA index system or its 17 successor system to compare such DNA profile against DNA databanks by 18 keyboard searches, or a similar method that does not involve uploading, 19 upon notice to both parties and the entity required to perform the 20 search, upon a showing by the respondent that such a comparison is mate- 21 rial to the presentation of his or her defense and that the request is 22 reasonable. For purposes of this section, a "keyboard search" shall mean 23 a search of a DNA profile against the databank in which the profile that 24 is searched is not uploaded to or maintained in the databank. Nothing in 25 this section authorizes the taking of a DNA profile from the respondent 26 or any other person unless specifically authorized by law. 27 § 331.8. Flow of information. 1. Sufficient communication for compli- 28 ance. The presentment agency shall endeavor to ensure that a flow of 29 information is maintained with the police and other investigative 30 personnel and sufficient to place within the presentment agency's 31 possession or control all material and information pertinent to the 32 respondent and the offense or offenses charged, including, but not 33 limited to, any evidence or information discoverable under paragraph (k) 34 of subdivision one of section 331.3 of this part. 35 2. Provision of law enforcement agency files. Absent a court order or 36 a requirement that the respondent's counsel obtain a security clearance 37 mandated by law or authorized government regulation, upon request by the 38 presentment agency, each New York state and local law enforcement agency 39 shall make available to the presentment agency a complete copy of its 40 complete records and files related to the investigation of the case or 41 related to the presentment agency regarding compliance with this part. 42 3. 911 telephone call and police radio transmission electronic 43 recordings, police-worn body camera recordings and other police 44 recordings. (a) Whenever an electronic recording of a 911 telephone call 45 or a police radio transmission or video or audio footage from a police- 46 worn body camera or other police recording was made or received in 47 connection with the investigation of an apparent criminal incident, the 48 arresting officer or lead detective shall expeditiously notify the 49 presentment agency in writing upon the filing of the petition of the 50 existence of all such known recordings. The presentment agency shall 51 expeditiously take whatever reasonable steps are necessary to ensure 52 that all known electronic recordings of 911 telephone calls, police 53 radio transmissions and video and audio footage and other police 54 recordings made or available in connection with the case are preserved. 55 Upon the respondent's timely request and designation of a specific elec- 56 tronic recording of a 911 telephone call, the presentment agency shallA. 8085 13 1 also expeditiously take whatever reasonable steps are necessary to 2 ensure that it is preserved. 3 (b) If the presentment agency fails to disclose such an electronic 4 recording to the respondent pursuant to paragraph (e), (g) or (k) of 5 subdivision one of section 331.3 of this part due to a failure to comply 6 with this obligation by police officers or other law enforcement or 7 prosecution personnel, the court upon motion of the respondent shall 8 impose an appropriate remedy or sanction pursuant to section 331.12 of 9 this part. 10 § 331.9. Continuing duty to disclose. If either the presentment agency 11 or the respondent subsequently learns of additional material or informa- 12 tion which it would have been under a duty to disclose pursuant to any 13 provisions of this part had it known of it at the time of a previous 14 discovery obligation or discovery order, it shall expeditiously notify 15 the other party and disclose the additional material and information as 16 required for initial discovery under this part. This section also 17 requires expeditious disclosure by the presentment agency of material or 18 information that became relevant to the case or discoverable based on 19 reciprocal discovery received from the respondent pursuant to subdivi- 20 sion four of section 331.3 of this part. 21 § 331.10. Work product. This part does not authorize discovery by a 22 party of those portions of records, reports, correspondence, memoranda, 23 or internal documents of the adverse party which are only the legal 24 research, opinions, theories or conclusions of the adverse party or its 25 attorney or the attorney's agents, or of statements of a respondent, 26 written or recorded or summarized in any writing or recording, made to 27 the attorney for the respondent or the attorney's agents. 28 § 331.11. Protective orders. 1. Any discovery subject to protective 29 order. Upon a showing of good cause by either party, the court may at 30 any time order that discovery or inspection of any kind of material or 31 information under this part be denied, restricted, conditioned or 32 deferred, or make such other order as is appropriate. The court may 33 impose as a condition on discovery to a respondent that the material or 34 information to be discovered be available only to counsel for the 35 respondent; or, alternatively, that counsel for the respondent, and 36 persons employed by the attorney or appointed by the court to assist in 37 the preparation of a respondent's case, may not disclose physical copies 38 of the discoverable documents to a respondent or to anyone else, 39 provided that the presentment agency affords the respondent access to 40 inspect redacted copies of the discoverable documents at a supervised 41 location that provides regular and reasonable hours for such access, 42 such as a presentment agency's office, police station, facility of 43 detention, or court. Should the court impose as a condition that some 44 material or information be available only to counsel for the respondent, 45 the court shall inform the respondent on the record that his or her 46 attorney is not permitted by law to disclose such material or informa- 47 tion to the respondent. The court may permit a party seeking or opposing 48 a protective order under this section, or another affected person, to 49 submit papers or testify on the record ex parte or in camera. Any such 50 papers and a transcript of such testimony may be sealed and shall 51 constitute a part of the record on appeal. This section does not alter 52 the allocation of the burden of proof with regard to matters at issue, 53 including privilege. 54 2. Modification of time periods for discovery. Upon motion of a party 55 in an individual case, the court may alter the time periods for discov- 56 ery imposed by this part upon a showing of good cause.A. 8085 14 1 3. Prompt hearing. Upon request for a protective order, the court 2 shall conduct an appropriate hearing within three business days to 3 determine whether good cause has been shown and when practicable shall 4 render decision expeditiously. Any materials submitted and a transcript 5 of the proceeding may be sealed and shall constitute a part of the 6 record on appeal. 7 4. Showing of good cause. In determining good cause under this section 8 the court may consider: constitutional rights or limitations; danger to 9 the integrity of physical evidence or the safety of a witness; risk of 10 intimidation, economic reprisal, bribery, harassment or unjustified 11 annoyance or embarrassment to any person, and the nature, severity and 12 likelihood of that risk; a risk of an adverse effect upon the legitimate 13 needs of law enforcement, including the protection of the confidentiali- 14 ty of informants, and the nature, severity and likelihood of that risk; 15 the nature and circumstances of the factual allegations in the case; 16 whether the respondent has a history of witness intimidation or tamper- 17 ing and the nature of that history; the nature of the stated reasons in 18 support of a protective order; the nature of the witness identifying 19 information that is sought to be addressed by a protective order, 20 including the option of employing adequate alternative contact informa- 21 tion; danger to any person stemming from factors such as a respondent's 22 substantiated affiliation with a criminal enterprise as defined in 23 subdivision three of section 460.10 of the penal law; and other similar 24 factors found to outweigh the usefulness of the discovery. 25 5. Successor counsel. In cases in which the attorney-client relation- 26 ship is terminated prior to trial for any reason, any material or infor- 27 mation disclosed subject to a condition that it be available only to 28 counsel for the respondent, or limited in dissemination by protective 29 order or otherwise, shall be provided only to successor counsel for the 30 respondent under the same condition or conditions or be returned to the 31 presentment agency, unless the court rules otherwise for good cause 32 shown or the presentment agency gives written consent. Any work product 33 derived from such material or information shall not be provided to the 34 respondent, unless the court rules otherwise or the presentment agency 35 gives written consent. 36 6. Compliance with protective order. Any protective order issued under 37 this part is a mandate of the court for purposes of the offense of crim- 38 inal contempt in subdivision three of section 215.50 of the penal law. 39 § 331.12. Remedies or sanctions for non-compliance. 1. Need for remedy 40 or sanction. (a) When material or information is discoverable under this 41 part but is disclosed belatedly, the court shall impose an appropriate 42 remedy or sanction if the party entitled to disclosure shows that it was 43 prejudiced. Regardless of a showing of prejudice the party entitled to 44 disclosure shall be given reasonable time to prepare and respond to the 45 new material. 46 (b) When material or information is discoverable under this part but 47 cannot be disclosed because it has been lost or destroyed, the court 48 shall impose an appropriate remedy or sanction if the party entitled to 49 disclosure shows that the lost or destroyed material may have contained 50 some information relevant to a contested issue. The appropriate remedy 51 or sanction is that which is proportionate to the potential ways in 52 which the lost or destroyed material reasonably could have been helpful 53 to the party entitled to disclosure. 54 2. Available remedies or sanctions. For failure to comply with any 55 discovery order imposed or issued pursuant to this part, the court may 56 make a further order for discovery, grant a continuance, order that aA. 8085 15 1 hearing be reopened, order that a witness be called or recalled, draw an 2 adverse inference regarding the non-compliance, preclude or strike a 3 witness's testimony or a portion of a witness's testimony, admit or 4 exclude evidence, order a mistrial, order the dismissal of all or some 5 of the charges, or make such other order as it deems just under the 6 circumstances; except that any sanction against the respondent shall 7 comport with the respondent's constitutional right to present a defense, 8 and precluding a witness from testifying on behalf of the respondent 9 shall be permissible only upon a finding that the respondent's failure 10 to comply with the discovery obligation or order was willful and moti- 11 vated by a desire to obtain a tactical advantage. 12 3. Consequences of non-disclosure of statement of witness testifying 13 for the presentment agency. The failure of the presentment agency to 14 disclose any written or recorded statement made by a witness testifying 15 on the agency's behalf, which relates to the subject matter of the 16 witness's testimony, shall not constitute grounds for any court to order 17 a new pre-trial hearing or set aside an adjudication, or reverse, modify 18 or vacate an adjudication, in the absence of a showing by the respondent 19 that there is a reasonable possibility that the non-disclosure mate- 20 rially contributed to the result of the trial or other proceeding; 21 provided, however, that nothing in this section shall affect or limit 22 any right the respondent may have to a reopened pre-trial hearing when 23 such statements were disclosed before the close of evidence at the fact- 24 finding hearing. 25 § 331.13. Admissibility of discovery. The fact that a party has indi- 26 cated during the discovery process an intention to offer specified 27 evidence or to call a specified witness is not admissible in evidence or 28 grounds for adverse comment at a pre-trial or fact-finding hearing. 29 § 3. Subdivision 2 of section 325 of the judiciary law, as added by 30 chapter 920 of the laws of 1982, is amended to read as follows: 31 2. Where an application follows a demand to produce any transcript of 32 testimony at a grand jury proceeding pursuant to paragraph (b) of subdi- 33 vision [two] one of section [331.2] 331.3 [or paragraph (a) of subdivi-34sion one of section 331.4] of the family court act the presentment agen- 35 cy and respondent shall be given notice of such application and an 36 opportunity to be heard. 37 § 4. Subdivision 5 of section 330.1 of the family court act, as added 38 by chapter 398 of the laws of 1983, is amended to read as follows: 39 5. Court ordered bill of particulars. Where a presentment agency has 40 timely served a written refusal pursuant to subdivision four of this 41 section and upon motion, made in writing, of a respondent, who has made 42 a request for a bill of particulars and whose request has not been 43 complied with in whole or in part, the court must, to the extent a 44 protective order is not warranted, order the presentment agency to 45 comply with the request if it is satisfied that the items of factual 46 information requested are authorized to be included in a bill of partic- 47 ulars, and that such information is necessary to enable the respondent 48 adequately to prepare or conduct his defense and, if the request was 49 untimely, a finding of good cause for the delay. Where a presentment 50 agency has not timely served a written refusal pursuant to subdivision 51 four of this section the court must, unless it is satisfied that the 52 presentment agency has shown good cause why such an order should not be 53 issued, issue an order requiring the presentment agency to comply or 54 providing for any other order authorized by subdivision one of section 55 [331.6] 331.12 of this part. 56 § 5. This act shall take effect January 1, 2020.
