S T A T E   O F   N E W   Y O R K
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                                  5013

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 14, 2013
                               ___________

Introduced  by  M.  of  A.  STEVENSON  --  read once and referred to the
  Committee on Codes

AN ACT to amend the criminal procedure law,  in  relation  to  mandating
  prosecutorial disclosure of exculpatory evidence

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The criminal procedure law  is  amended  by  adding  a  new
section 240.25 to read as follows:
S 240.25 DISCOVERY; PROSECUTION'S DUTY TO DISCLOSE EXCULPATORY EVIDENCE.
  1.  IN ADDITION TO THE REQUIREMENTS OF SECTION 240.20 OF THIS ARTICLE,
THE PROSECUTION SHALL DISCLOSE TO THE DEFENDANT AND MAKE  AVAILABLE  FOR
INSPECTION,  PHOTOGRAPHIC,  COPYING  OR  TESTING, THE FOLLOWING PROPERTY
WITHIN TWENTY DAYS AFTER RECEIPT OF A WRITTEN DEMAND MADE BY THE DEFEND-
ANT:
  (A) ANY AND ALL EXCULPATORY MATERIALS THEN IN THE  POSSESSION  OF  THE
PROSECUTION OR ANY BRANCH OF LAW ENFORCEMENT INVOLVED IN THE PROSECUTION
OF  THE  DEFENDANT,  OR  EXCULPATORY  MATERIALS  WHICH MAY COME INTO THE
POSSESSION OF THE PROSECUTION OR ANY BRANCH OF LAW ENFORCEMENT  INVOLVED
IN  THE  PROSECUTION  OF THE DEFENDANT THROUGH THE EXERCISE OF DUE DILI-
GENCE PURSUANT TO SECTION 240.60 OF THIS ARTICLE;
  (B) EVIDENCE WHICH DISPROVES THE IDENTITY  OF  THE  DEFENDANT  AS  THE
PERPETRATOR  OF  THE CRIME AT ISSUE IN THE CRIMINAL ACTION OR PROCEEDING
PENDING AGAINST THE DEFENDANT;
  (C) EVIDENCE WHICH TENDS TO DISPROVE AN ELEMENT OF ANY  CRIME  CHARGED
IN SUCH ACTION OR PROCEEDING;
  (D)  EVIDENCE  WHICH  CONSTITUTES  A PRIOR REPRESENTATION OF A WITNESS
ACCOUNT WHICH VARIES IN ANY DEGREE FROM ANY STATEMENTS OF  THE  WITNESS,
WHENEVER  MADE,  WITH  REGARD TO A DESCRIPTION OF THE EVENTS SURROUNDING
THE CRIME AT ISSUE IN SUCH ACTION OR PROCEEDING;
  (E) EVIDENCE THAT A WITNESS HAS A PRIOR CRIMINAL HISTORY;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08247-01-3

              

A. 5013                             2

  (F) EVIDENCE THAT A WITNESS HAS ENGAGED IN ACTS WHICH WOULD BEAR  UPON
HIS OR HER CREDIBILITY AND THE INTEGRITY OF HIS OR HER TESTIMONY; OR
  (G)  EVIDENCE  WHICH  WOULD  CAUSE A REASONABLE PERSON TO QUESTION THE
VERACITY OF A WITNESS, SUCH AS MOTIVE, BIAS, COMPENSATION,  OR  INFORMA-
TION WHICH WOULD TEND TO DEVALUE THE TESTIMONY OFFERED.
  2.  THE  PROSECUTOR SHALL MAKE A DILIGENT, GOOD FAITH EFFORT TO ASCER-
TAIN THE EXISTENCE OF DEMANDED PROPERTY AND TO CAUSE SUCH PROPERTY TO BE
MADE AVAILABLE FOR DISCOVERY WHERE IT  EXISTS  BUT  IS  NOT  WITHIN  THE
PROSECUTOR'S POSSESSION, CUSTODY OR CONTROL; PROVIDED, THAT THE PROSECU-
TOR  SHALL  NOT  BE  REQUIRED TO OBTAIN BY SUBPOENA DUCES TECUM DEMANDED
MATERIAL WHICH THE DEFENDANT MAY THEREBY OBTAIN.
  3. THE PROSECUTION MAY REQUEST AN IN CAMERA  REVIEW  OF  ANY  EVIDENCE
DEMANDED  BY  THE DEFENDANT PURSUANT TO SUBDIVISION ONE OF THIS SECTION.
AFTER AN IN CAMERA REVIEW OF THE MATERIALS PROVIDED AND AFTER  AFFORDING
ALL  PARTIES  A  REASONABLE  OPPORTUNITY  TO  BE  HEARD, THE COURT SHALL
PROMPTLY MAKE A WRITTEN DETERMINATION WHETHER THE  REQUESTED  REVIEW  OF
THE  INFORMATION  CAN  REASONABLY  BE  EXPECTED TO CAUSE SUBSTANTIAL AND
IDENTIFIABLE HARM TO OTHERS WHICH OUTWEIGHS  THE  DEFENDANT'S  RIGHT  OF
ACCESS  TO  THE INFORMATION OR WHETHER THE REQUESTED REVIEW WOULD HAVE A
DETRIMENTAL EFFECT ON THE ACTION OR PROCEEDING, OR WHETHER ALL  OR  PART
OF  THE  MATERIALS  SOUGHT  TO BE REVIEWED CONSTITUTE PERSONAL NOTES AND
OBSERVATIONS, AND SHALL ACCORDINGLY DETERMINE WHETHER ACCESS TO  ALL  OR
PART  OF  SUCH MATERIALS BY THE DEFENDANT SHALL BE GRANTED. IN THE EVENT
THAT THE COURT DETERMINES THAT THE REQUEST FOR ACCESS SHALL  BE  GRANTED
TO THE DEFENDANT IN WHOLE OR IN PART, THE COURT SHALL NOTIFY ALL PARTIES
AND  THE  COURT  SHALL  GRANT  ACCESS  TO THE DEFENDANT PURSUANT TO SUCH
DETERMINATION.
  4. IF THE COURT FINDS THAT THE PROSECUTION HAS FAILED TO  COMPLY  WITH
ANY  OF  THE  PROVISIONS OF THIS SECTION, THE COURT MAY ORDER THE PROSE-
CUTION TO PERMIT DISCOVERY OF THE  PROPERTY  NOT  PREVIOUSLY  DISCLOSED,
GRANT A CONTINUANCE, ISSUE A PROTECTIVE ORDER, PROHIBIT THE INTRODUCTION
OF  CERTAIN  EVIDENCE  OR  THE  CALLING OF CERTAIN WITNESSES OR TAKE ANY
OTHER APPROPRIATE ACTION.
  5. IF THE COURT FINDS THAT THE PROSECUTION  HAS  WILLFULLY  FAILED  TO
COMPLY WITH ANY OF THE PROVISIONS OF THIS SECTION THE COURT MAY:
  (A)  DISMISS THE CRIMINAL ACTION OR PROCEEDING OR, IF DISMISSAL IS NOT
SUPPORTED BY THE RECORD, INSTRUCT THE JURY THAT AN ADVERSE INFERENCE MAY
BE DRAWN AGAINST THE  PROSECUTION  FOR  THEIR  FAILURE  TO  PROVIDE  THE
REQUESTED DISCLOSURE;
  (B)  FINE THE INDIVIDUAL PROSECUTOR AND THE DISTRICT ATTORNEY'S OFFICE
JOINTLY AND SEVERALLY THE AMOUNT OF TWO THOUSAND  FIVE  HUNDRED  DOLLARS
FOR EACH WILLFUL VIOLATION OF SUBDIVISION ONE OF THIS SECTION; OR
  (C)  WHERE  AN INDIVIDUAL PROSECUTOR OR DISTRICT ATTORNEY'S OFFICE HAS
BEEN PREVIOUSLY FINED FOR VIOLATING THIS SECTION,  FINE  THE  INDIVIDUAL
PROSECUTOR  AND THE DISTRICT ATTORNEY'S OFFICE JOINTLY AND SEVERALLY THE
AMOUNT OF FIVE THOUSAND DOLLARS FOR EACH WILLFUL VIOLATION  OF  SUBDIVI-
SION ONE OF THIS SECTION.
  S 2. This act shall take effect immediately.