NY State Senate Bill 2013-S4089A

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to codes
Jun 15, 2013	print number 4089a
Jun 15, 2013	amend (t) and recommit to codes
Mar 08, 2013	referred to codes

Bill Amendments

Original

A (Active)

co-Sponsors

2013-S4089 - Details

See Assembly Version of this Bill:: A3801
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §240.40, CP L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A8080
2015-2016: A2878
2017-2018: A3056

2013-S4089 - Summary

Relates to discovery.

2013-S4089 - Sponsor Memo

                                BILL NUMBER:S4089

TITLE OF BILL:  An act to amend the criminal procedure law and the
penal law, in relation to criminal discovery; and to repeal certain
provisions of the criminal procedure law relating thereto

PURPOSE OR GENERAL IDEA OF BILL:  To modernize and make more fair the
criminal discovery rules, while providing measures to ensure the
safety of witnesses. The criminal discovery rules are set forth in
criminal procedure law Article 240.  This bill would repeal Article
240 and enact a new Article 245. It would eliminate inefficiencies of
current discovery practice, improve both parties' access to
information, reduce the possibility of wrongful convictions, and
facilitate more prompt disposition of criminal cases.

SUMMARY OF MAIN PROVISIONS:

Section 245.10 (Protective Orders): Either party may withhold any kind
of discoverable item or information, when there is a basis to believe
a protective order would be appropriate. The court may issue any type
of protective order, or alter the time periods for discovery, for good
cause shown. The standard for a showing of good cause is broad,
flexible and realistic. Courts shall consider specified factors
relating to ensuring safety of witnesses.

Sections 245.20 and 245.30 (Prosecution's Discovery In Two Stages):

The prosecution's discovery occurs in two phases. Phase One includes
types of materials possessed by or readily obtainable by prosecutors
early in the case (e.g., electronically stored police reports; etc.).
Phase Two includes materials that take longer for prosecutors to
obtain (e.g., less formalized documents from police files;
transcripts; etc.). The need for written demands for discovery is
eliminated. Disclosures are earlier and broader than under current
law.

Section 245.20 (Phase One Discovery): The prosecution automatically
discloses Phase One materials to the defense within 15 days of
arraignment. This includes types of information needed for the defense
to file pre-trial motions; to perform investigations when witnesses
and evidence are still available; and to make more informed decisions
about pleas.

Section 245.30 (Phase Two Discovery): The prosecution automatically
discloses Phase Two materials to the defense within 90 days of
arraignment, and then the prosecutor files a "Certificate of
Compliance." This includes types of information needed for evaluating
potential defenses and for trial preparation.

Sections 245.20 (3),(4) (Procedures for Witnesses): In any case, the
prosecutor has the option to withhold any witness's address or similar
contact information, without having to apply for a protective order,
by making the witness available to only counsel for the defendant for
an interview. In cases charging a violent felony offense, the
prosecutor has the additional option to withhold any witness's address
or similar contact information, without having to apply for a
protective order, by providing adequate contact information in a


confidential document accessible only to defense counsel and named
defense personnel, and not to the defendant.  This discovery can also
be made contingent upon the defendant's personal consent to use of the
attorney-only confidentiality procedure, after in-court warning
against witness tampering.

Section 245.40 (Discovery From Defense): The defense automatically
discloses its reciprocal discovery to. the prosecution within 30 days
after the prosecution's certification that its discovery is complete,
and then the defense lawyer files a "Certificate of Compliance."
Reciprocal discovery from the defense is earlier and broader than
under current law.

Section 245.90 (Remedies for Violations): If an item is disclosed
late, a remedy at trial is provided if the party entitled to
disclosure can demonstrate significant prejudice. If an item is lost
or destroyed, the court imposes a remedy at trial that is
proportionate to the harm.

JUSTIFICATION:  Under New York's current criminal discovery statute,
defendants are denied vitally important information, essential to make
rational decisions about their pending cases. The limited information
they receive is also turned over so late that it is often impossible
to intelligently investigate, to secure and use any potentially
exculpatory evidence, to fairly weigh a guilty plea offer, or to
develop a trial strategy.

New York's antiquated criminal discovery rules inhibit, at great
taxpayer cost, prompt guilty pleas from people who would be willing to
resolve their cases if shown the evidence against them. They also
force defense lawyers and prosecutors to inundate each other and the
court system with boilerplate "demands" and responses for no sound
purpose.

This restrictive discovery system is in stark contrast to the
discovery rules that apply in civil cases in New York. In civil cases,
both parties receive an opportunity through discovery to learn what
they should know about the other side's case. Yet in criminal cases,
where liberty is at stake, the current rules systematically block
innocent or over-charged defendants from investigating and formulating
a proper strategy of defense prior to the trial.

The criminal discovery system is also out of step with those in other
States. A leading treatise identifies the following fourteen States as
those that provide criminal defendants with the least discovery in the
nation: "Alabama, Georgia, Iowa, Kansas, Kentucky, Louisiana, New
York, Rhode Island, South Carolina, South Dakota, Tennessee, Texas,
Virginia, and Wyoming." This list actually understates New York's
restrictiveness, as at least eight of these "bottom fourteen" States
have other procedures that result in the defense receiving crucial
information, such as lists of witnesses' names or addresses included
as part of the indictment or early access to grand jury minutes.

By contrast, large States with big cities that ordinarily are
considered more akin to New York - including California, Florida,
Illinois, Massachusetts, Michigan, New Jersey and North Carolina -
have utilized broad criminal discovery for years.


This bill will overhaul New York's criminal discovery rules and
accomplish two key things: it will help innocent or over-charged
defendants fairly prepare for trial, and it will encourage guilty
defendants to plead guilty without needless and costly delays.

The bill is even-handed. It requires both the prosecution and the
defendant to provide the opposing party with extensive discovery early
in the case. It eliminates unduly burdensome requirements of routine
discovery paperwork. By employing new mechanisms to address concerns
about some key issues, it also represents a major advance from other
proposals for criminal discovery reform that have been put forward in
New York in past decades.

There is a broad consensus nationwide that the principal benefits of
discovery reform hinge on requiring early disclosure. But meaningful
discovery reform also requires that the obligations actually be
achievable by prosecutors and police.

To ensure that its mandates are feasible, this bill establishes that
the prosecution's discovery is provided in two calibrated stages. Key
items possessed by or readily accessible to prosecutors (such as
electronically stored police reports) are discoverable fifteen days
after arraignment. Other items - like grand jury transcripts,
exhibits, and less "formal" witness statements such as police memo
book notes or vouchers, which may be harder for a prosecutor to obtain
and may not be in electronic form - are discoverable after ninety
days.

The bill requires disclosure of witness information. At least
thirty-three States currently require that both parties disclose their
witnesses' names and addresses, subject to a protective order.  No
State that has modernized its criminal discovery rules has failed to
include such a discovery obligation, and all of them permit
prosecutors to withhold witness information from the defense only
after the court has issued a protective order allowing non-disclosure.

This uniform practice in modern discovery statutes is based upon the
bedrock legal principle that witnesses "belong" to neither party. In
addition, it recognizes that having contact information for witnesses
is frequently essential to enable an intelligent investigation of the
charges; to evaluate and develop available defenses; to find and use
exculpatory evidence; and to provide the defendant with informed
advice about the advisability of a plea. Just as prosecutors have a
crucial need for information to investigate alibi defense witnesses,
it is vital for both parties to exchange information for investigating
other witnesses as well.

The bill requires the prosecution to disclose names and addresses (or
alternative contact information) for all persons known to have
information relevant to any offense charged or to a potential defense,
not merely of "intended" witnesses. This standard is recommended by
the American Bar Association and used in States such as New Jersey,
Florida and Minnesota. It recognizes that prosecutors should not
refrain from also disclosing information about potential defense
witnesses. It will thus reduce possible "gamesmanship" during
discovery, and also help to avoid constitutional violations.


Whereas other States rely solely on the court's issuance of a
protective order if the prosecution wishes to withhold a witness's
name or address, this bill includes additional tools that will assist
courts, prosecutors and defense lawyers in ensuring the safety of
witnesses.

Initially, it specifies a robust and flexible standard to be employed
when evaluating any application for a protective order. The standard
highlights factors such as a defendant's gang affiliation, and it
allows withholding of any item where other factors outweigh its
usefulness.

The bill also gives prosecutors the alternative option, in any case,
to withhold a witness's address and contact information, without
having to show good cause or to obtain a protective order, by making
the person available to only counsel for the defendant for an
interview.

In any case involving a violent felony charge, the bill further gives
prosecutors the alternative option to withhold any witness's address
or other contact information, without having to apply for a protective
order. Adequate contact information for the witness is then separately
disclosed in a confidential document available only to defense counsel
and named defense personnel, who are prohibited from disclosing it to
anyone else. Prosecutors may also make disclosure of such information
contingent upon the defendant's personal consent to the use of the
attorney-only confidentiality procedure.

This approach recognizes that the defendant, in contrast to the lawyer
or investigator, does not in general need to learn witnesses'
addresses (unlike their names, which often are essential to
comprehending and discussing a case).

Some violations of discovery obligations are virtually inevitable in
any court system. With respect to the potential consequences for
violations, this bill employs the term "remedy," not "sanction." This
terminology underscores that the purpose of the rules is simply to
ensure that both parties receive as much discovery as is feasible, as
early as possible (consistent with witness safety) - it is not to
"penalize" prosecutors or police for inevitable "lapses" during the
discovery process despite their reasonably diligent efforts to comply.

If any discoverable material is disclosed belatedly, the bill
instructs courts to provide a "remedy" at trial if the party entitled
to disclosure is able to show significant prejudice. If any
discoverable material is lost or destroyed, the bill instructs courts
to provide a "remedy" at trial that is proportionate to how the item
reasonably might have been helpful. These are forgiving standards,
designed to rectify harm and not to create a windfall for mere
mishaps.

This bill's system of automatic, early, and broad discovery will
enhance fairness, reliability, and overall efficiency. It will permit
adequate case investigations, properly informed decisions on guilty
pleas, more fair and orderly trials, and minimize the risk of wrongful
convictions. Replacing the outmoded current framework of Article 240
with this internally consistent and balanced Article 245 will


accomplish these goals. And it will restore New York State's criminal
justice system to a sound position within the national mainstream.

PRIOR LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE:  One hundred eightieth day after it shall have become
a law.

2013-S4089 - Bill Text download pdf

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

                                  4089

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              March 8, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the  criminal  procedure  law  and  the  penal  law,  in
  relation  to  criminal  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:

  Section 1. Article 240 of the criminal procedure law is REPEALED.
  S 2. The criminal procedure law is amended by adding a new article 245
to read as follows:
                         ARTICLE 245 - DISCOVERY
SECTION 245.10 AVAILABILITY OF PROTECTIVE ORDERS.
        245.20 PHASE ONE DISCOVERY OBLIGATION OF PROSECUTION.
        245.30 PHASE TWO DISCOVERY OBLIGATION OF PROSECUTION.
        245.40 RECIPROCAL DISCOVERY OBLIGATION OF THE DEFENDANT.
        245.45 DISCLOSURE OF PRIOR MISCONDUCT OR CRIMINAL ACTS.
        245.50 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
        245.55 COURT ORDERS FOR PRESERVATION, ACCESS OR DISCOVERY.
        245.60 MATERIAL HELD BY OTHER GOVERNMENTAL PERSONNEL.
        245.65 CERTIFICATES OF COMPLIANCE.
        245.70 COURT ORDERED PROCEDURES TO FACILITATE COMPLIANCE.
        245.75 FLOW OF INFORMATION WITH POLICE.
        245.80 CONTINUING DUTY TO DISCLOSE.
        245.85 WORK PRODUCT.
        245.90 AVAILABILITY OF REMEDIES FOR VIOLATIONS.
        245.95 ADMISSIBILITY OF DISCOVERY.
S 245.10 AVAILABILITY OF PROTECTIVE ORDERS.
  1.  ANY  DISCOVERY SUBJECT TO PROTECTIVE ORDER. UPON A SHOWING OF GOOD
CAUSE, THE COURT MAY AT ANY TIME ORDER THAT DISCOVERY OR  INSPECTION  OF
ANY  KIND  OF  MATERIAL  OR  INFORMATION  UNDER  THIS ARTICLE BE DENIED,
RESTRICTED, CONDITIONED OR DEFERRED, OR MAKE  SUCH  OTHER  ORDER  AS  IS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09687-01-3

S. 4089                             2

APPROPRIATE.    THE  COURT  MAY  IMPOSE AS A CONDITION ON DISCOVERY TO A
DEFENDANT THAT THE MATERIAL OR INFORMATION TO BE DISCOVERED BE AVAILABLE
ONLY TO COUNSEL FOR THE DEFENDANT. THE COURT MAY PERMIT A PARTY  SEEKING
OR  OPPOSING  A PROTECTIVE ORDER UNDER THIS SECTION, OR ANOTHER AFFECTED
PERSON, TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN  CAMERA.    ANY  SUCH
PAPERS  AND  A  TRANSCRIPT  OF  SUCH TESTIMONY SHALL BE SEALED AND SHALL
CONSTITUTE A PART OF THE RECORD ON APPEAL. THIS SECTION DOES  NOT  ALTER
THE  ALLOCATION  OF THE BURDEN OF PROOF WITH REGARD TO MATTERS AT ISSUE,
INCLUDING PRIVILEGE.
  2. MODIFICATION OF TIME PERIODS FOR DISCOVERY. UPON MOTION OF A  PARTY
IN  AN INDIVIDUAL CASE, THE COURT MAY ALTER THE TIME PERIODS FOR DISCOV-
ERY IMPOSED BY THIS ARTICLE UPON A SHOWING OF GOOD CAUSE.
  3. SHOWING OF GOOD CAUSE. GOOD CAUSE UNDER THIS  SECTION  MAY  INCLUDE
CONSTITUTIONAL   LIMITATIONS;   DANGER  TO  THE  INTEGRITY  OF  PHYSICAL
EVIDENCE; A SUBSTANTIAL RISK OF PHYSICAL  HARM,  INTIMIDATION,  ECONOMIC
REPRISAL,  BRIBERY  OR  UNJUSTIFIED  ANNOYANCE  OR  EMBARRASSMENT TO ANY
PERSON; A SUBSTANTIAL RISK OF AN  ADVERSE  EFFECT  UPON  THE  LEGITIMATE
NEEDS OF LAW ENFORCEMENT, INCLUDING THE PROTECTION OF THE CONFIDENTIALI-
TY  OF  INFORMANTS; DANGER TO ANY PERSON STEMMING FROM FACTORS SUCH AS A
DEFENDANT'S  GANG  AFFILIATION,  PRIOR  HISTORY  OF   INTERFERING   WITH
WITNESSES,  OR  THREATS  OR  INTIMIDATING  ACTIONS DIRECTED AT POTENTIAL
WITNESSES; OR OTHER SIMILAR FACTORS THAT OUTWEIGH THE USEFULNESS OF  THE
DISCOVERY.
S 245.20 PHASE ONE DISCOVERY OBLIGATION OF PROSECUTION.
  1.  TIMING  OF  PHASE ONE DISCOVERY FOR THE DEFENDANT. THE PROSECUTION
SHALL PERFORM ITS PHASE ONE DISCOVERY  OBLIGATIONS  UNDER  THIS  SECTION
WITHIN  FIFTEEN  CALENDAR  DAYS  AFTER THE DEFENDANT'S ARRAIGNMENT ON AN
INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR-
MATION, OR SIMPLIFIED INFORMATION.  PORTIONS OF MATERIALS CLAIMED TO  BE
NON-DISCOVERABLE  MAY  BE WITHHELD PENDING A DETERMINATION AND RULING OF
THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE DEFENDANT  SHALL
BE  NOTIFIED  IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A
PARTICULAR SUBDIVISION, AND THE DISCOVERABLE PORTIONS OF SUCH  MATERIALS
SHALL  BE  DISCLOSED IF PRACTICABLE. WHEN THE DISCOVERABLE MATERIALS ARE
EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD IN  THIS  SUBDIVISION  MAY  BE
STAYED  BY  AN  ADDITIONAL  FORTY-FIVE  CALENDAR DAYS WITHOUT NEED FOR A
MOTION PURSUANT TO SUBDIVISION TWO OF SECTION 245.10 OF THIS ARTICLE.
  2. PHASE ONE  DISCOVERY  FOR  THE  DEFENDANT.  THE  PROSECUTION  SHALL
DISCLOSE TO THE DEFENDANT AS PART OF PHASE ONE DISCOVERY, AND PERMIT THE
DEFENDANT  TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF THE FOLLOW-
ING ITEMS AND INFORMATION WHEN IT RELATES TO THE SUBJECT MATTER  OF  THE
CASE:
  (A) ALL ELECTRONICALLY STORED POLICE REPORTS AND LAW ENFORCEMENT AGEN-
CY  REPORTS THAT ARE IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSE-
CUTION, OR PERSONS UNDER THE PROSECUTION'S DIRECTION AND CONTROL.
  (B) ALL WRITTEN OR RECORDED STATEMENTS, AND THE SUBSTANCE OF ALL  ORAL
STATEMENTS,  MADE BY THE DEFENDANT OR A CO-DEFENDANT TO A PUBLIC SERVANT
ENGAGED IN LAW ENFORCEMENT ACTIVITY OR TO A PERSON THEN ACTING UNDER HIS
OR HER DIRECTION OR IN COOPERATION WITH HIM OR HER,  OTHER  THAN  STATE-
MENTS MADE IN THE COURSE OF THE CRIMINAL TRANSACTION.
  (C)  A  LIST  OF  ALL  TANGIBLE  OBJECTS  OBTAINED  FROM, OR ALLEGEDLY
POSSESSED BY, THE DEFENDANT OR A CO-DEFENDANT. THE LIST SHALL INCLUDE  A
DESIGNATION  BY  THE  PROSECUTOR  AS TO WHICH OBJECTS WERE PHYSICALLY OR
CONSTRUCTIVELY POSSESSED BY THE DEFENDANT AND WERE  RECOVERED  DURING  A
SEARCH  OR  SEIZURE  BY  A PUBLIC SERVANT OR AN AGENT THEREOF, AND WHICH
TANGIBLE OBJECTS WERE RECOVERED BY A PUBLIC SERVANT OR AN AGENT  THEREOF

S. 4089                             3

AFTER  ALLEGEDLY  BEING  ABANDONED  BY THE DEFENDANT. IF THE PROSECUTION
INTENDS TO PROVE THE DEFENDANT'S POSSESSION OF ANY TANGIBLE  OBJECTS  BY
MEANS  OF A STATUTORY PRESUMPTION OF POSSESSION, IT SHALL DESIGNATE THAT
INTENTION  AS  TO  EACH SUCH OBJECT. IF REASONABLY PRACTICABLE, IT SHALL
ALSO DESIGNATE THE LOCATION FROM WHICH EACH TANGIBLE OBJECT  WAS  RECOV-
ERED.
  (D) THE NAMES OF, AND ADDRESSES OR ADEQUATE ALTERNATIVE CONTACT INFOR-
MATION  FOR,  ALL  PERSONS OTHER THAN LAW ENFORCEMENT PERSONNEL WHOM THE
PROSECUTOR KNOWS TO HAVE EVIDENCE OR INFORMATION RELEVANT TO ANY OFFENSE
CHARGED OR TO A POTENTIAL DEFENSE THERETO, INCLUDING  A  DESIGNATION  BY
THE  PROSECUTOR AS TO WHICH OF THOSE PERSONS MAY BE CALLED AS WITNESSES.
INFORMATION UNDER THIS PARAGRAPH RELATING TO ANY PERSON MAY BE WITHHELD,
AND REDACTED FROM DISCOVERY MATERIALS, AS PROVIDED IN SUBDIVISION  THREE
OR  FOUR OF THIS SECTION. INFORMATION UNDER THIS PARAGRAPH RELATING TO A
CONFIDENTIAL INFORMANT MAY BE  WITHHELD,  AND  REDACTED  FROM  DISCOVERY
MATERIALS,  WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS
ARTICLE; BUT THE DEFENDANT SHALL BE NOTIFIED IN WRITING THAT SUCH INFOR-
MATION HAS NOT BEEN DISCLOSED, UNLESS THE COURT RULES OTHERWISE FOR GOOD
CAUSE SHOWN.
  (E) THE NAME, RANK, SHIELD NUMBER AND  BUSINESS  ADDRESS  OF  ALL  LAW
ENFORCEMENT  PERSONNEL  WHOM  THE  PROSECUTOR  KNOWS TO HAVE EVIDENCE OR
INFORMATION RELEVANT TO ANY OFFENSE CHARGED OR TO  A  POTENTIAL  DEFENSE
THERETO. INFORMATION UNDER THIS PARAGRAPH RELATING TO UNDERCOVER PERSON-
NEL MAY BE WITHHELD, AND REDACTED FROM DISCOVERY MATERIALS, WITHOUT NEED
FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS ARTICLE; BUT THE DEFEND-
ANT  SHALL  BE  NOTIFIED  IN  WRITING THAT SUCH INFORMATION HAS NOT BEEN
DISCLOSED, UNLESS THE COURT RULES OTHERWISE FOR GOOD CAUSE SHOWN.
  (F) WHEN WRITTEN AND RECORDED STATEMENTS ARE IN THE POSSESSION OF  THE
PROSECUTION  (NOT  SOLELY  IN  THE  POSSESSION  OF POLICE OR ANOTHER LAW
ENFORCEMENT AGENCY), ALL STATEMENTS, WRITTEN OR RECORDED  OR  SUMMARIZED
IN ANY WRITING OR RECORDING, MADE BY PERSONS WHO HAVE EVIDENCE OR INFOR-
MATION  RELEVANT TO ANY OFFENSE CHARGED OR TO A POTENTIAL DEFENSE THERE-
TO. STATEMENTS SOLELY  IN  THE  POSSESSION  OF  POLICE  OR  ANOTHER  LAW
ENFORCEMENT  AGENCY  AT THE TIME OF PHASE ONE DISCOVERY ARE DISCOVERABLE
UNDER PARAGRAPH (C) OF SUBDIVISION TWO OF SECTION 245.30 OF  THIS  ARTI-
CLE.
  (G) WHEN IT IS KNOWN TO THE PROSECUTION (NOT SOLELY KNOWN TO POLICE OR
ANOTHER  LAW  ENFORCEMENT AGENCY), ALL EVIDENCE AND INFORMATION, WHETHER
OR NOT ADMISSIBLE OR RECORDED IN  TANGIBLE  FORM,  THAT  TENDS  TO:  (I)
EXCULPATE THE DEFENDANT; (II) MITIGATE THE DEFENDANT'S CULPABILITY AS TO
A  CHARGED  OFFENSE;  (III)  SUPPORT  A  POTENTIAL  DEFENSE TO A CHARGED
OFFENSE; (IV) PROVIDE A BASIS FOR  A  MOTION  TO  SUPPRESS  EVIDENCE  ON
CONSTITUTIONAL  GROUNDS;  (V) SIGNIFICANTLY IMPUGN THE CREDIBILITY OF AN
IMPORTANT PROSECUTION WITNESS, INFORMANT OR EVIDENCE; OR  (VI)  MITIGATE
PUNISHMENT. FAVORABLE EVIDENCE AND INFORMATION KNOWN SOLELY TO POLICE OR
ANOTHER  LAW  ENFORCEMENT  AGENCY  AT THE TIME OF PHASE ONE DISCOVERY IS
DISCOVERABLE UNDER PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.30 OF
THIS ARTICLE.
  (H) WHETHER A SEARCH WARRANT  HAS  BEEN  EXECUTED  AND  ALL  DOCUMENTS
RELATING  THERETO, INCLUDING BUT NOT LIMITED TO THE WARRANT, THE WARRANT
APPLICATION, SUPPORTING AFFIDAVITS, A POLICE INVENTORY OF  ALL  PROPERTY
SEIZED  UNDER  THE  WARRANT,  AND A TRANSCRIPT OF ALL TESTIMONY OR OTHER
ORAL COMMUNICATIONS OFFERED IN SUPPORT OF THE WARRANT APPLICATION.
  (I) THE APPROXIMATE DATE, TIME AND PLACE OF THE  OFFENSE  OR  OFFENSES
CHARGED AND OF THE DEFENDANT'S ARREST.

S. 4089                             4

  3.  PROSECUTOR'S  OPTION TO RESTRICT DISCLOSURE OF CONTACT INFORMATION
BY ARRANGING WITNESS INTERVIEW.  WITHIN THE PROSECUTOR'S DISCRETION, THE
ADDRESS, TELEPHONE NUMBER OR SIMILAR CONTACT INFORMATION FOR ANY  PERSON
WHOSE  NAME IS DISCLOSED PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF
THIS  SECTION MAY BE WITHHELD, AND REDACTED FROM OTHER DISCOVERY MATERI-
ALS, WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10 OF THIS  ARTI-
CLE,  IF  THE  PROSECUTOR  MAKES THE PERSON AVAILABLE TO COUNSEL FOR THE
DEFENDANT FOR AN IN PERSON INTERVIEW WITHIN THE TIME PERIOD SPECIFIED IN
SUBDIVISION ONE OF THIS SECTION. THIS SUBDIVISION DOES  NOT  CREATE  ANY
RIGHT  FOR  THE DEFENDANT PERSONALLY TO ATTEND OR TO PARTICIPATE IN SUCH
AN INTERVIEW.
  4. PROSECUTOR'S OPTION TO RESTRICT DISCLOSURE OF  CONTACT  INFORMATION
IN  VIOLENT  FELONY  CASES.  (A)  WHERE  THE DEFENDANT IS CHARGED WITH A
VIOLENT FELONY OFFENSE, WITHIN THE PROSECUTOR'S DISCRETION THE  ADDRESS,
TELEPHONE  NUMBER  OR  SIMILAR  CONTACT INFORMATION FOR ANY PERSON WHOSE
NAME IS DISCLOSED PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO  OF  THIS
SECTION  MAY  BE  WITHHELD, AND REDACTED FROM OTHER DISCOVERY MATERIALS,
WITHOUT NEED FOR A MOTION PURSUANT TO SECTION 245.10  OF  THIS  ARTICLE;
EXCEPT  THAT  A  LIST  OF  THE ADDRESSES OR ADEQUATE ALTERNATIVE CONTACT
INFORMATION FOR PERSONS WHOSE INFORMATION HAS BEEN WITHHELD OR  REDACTED
SHALL  BE SEPARATELY PROVIDED TO COUNSEL FOR THE DEFENDANT IN A DOCUMENT
CLEARLY MARKED AS CONFIDENTIAL, UNLESS A PROTECTIVE  ORDER  PURSUANT  TO
SECTION  245.10  OF  THIS  ARTICLE IS ISSUED BY THE COURT FOR GOOD CAUSE
SHOWN. IN ADDITION DISCOVERY OF THIS INFORMATION MAY BE  CONDITIONED  ON
THE DEFENDANT'S PERSONAL CONSENT, GIVEN IN OPEN COURT IN THE PRESENCE OF
THE COURT AT ARRAIGNMENT OR AT ANOTHER TIME, TO THE USE OF THE CONFIDEN-
TIALITY  PROCEDURE  SET  FORTH  IN  THIS  SUBDIVISION.   THE COURT SHALL
SPECIFICALLY CAUTION THE DEFENDANT, IN THE COLLOQUY ABOUT  USE  OF  THIS
PROCEDURE,  CONCERNING  THE  OFFENSES  OF  TAMPERING  WITH A WITNESS AND
INTIMIDATING A VICTIM OR WITNESS IN ARTICLE TWO HUNDRED FIFTEEN  OF  THE
PENAL LAW.  NOTHING IN THIS SUBDIVISION PRECLUDES THE COURT FROM ISSUING
A  DIFFERENT PROTECTIVE ORDER PURSUANT TO SECTION 245.10 OF THIS ARTICLE
FOR GOOD CAUSE SHOWN.
  (B) WHEN THE CONFIDENTIALITY PROCEDURE SET FORTH IN  THIS  SUBDIVISION
IS USED, THE FOLLOWING REQUIREMENTS APPLY:
  (I) EXCEPT AS PROVIDED IN SUBPARAGRAPH (II) OF THIS PARAGRAPH, COUNSEL
FOR  THE  DEFENDANT  MAY  NOT  DISCLOSE  OR  PERMIT TO BE DISCLOSED TO A
DEFENDANT OR TO ANYONE ELSE THE LIST DESCRIBED IN  THIS  SUBDIVISION  OR
ITS  CONTENTS,  UNLESS  SPECIFICALLY PERMITTED TO DO SO BY THE COURT FOR
GOOD CAUSE SHOWN OR UNLESS THE PROSECUTOR  GIVES  WRITTEN  CONSENT.  THE
COURT  MAY ALLOW A PARTY SEEKING OR OPPOSING SUCH PERMISSION, OR ANOTHER
AFFECTED PERSON, TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN CAMERA.  ANY
SUCH PAPERS AND A TRANSCRIPT OF SUCH TESTIMONY SHALL BE SEALED AND SHALL
CONSTITUTE A PART OF THE RECORD ON APPEAL.
  (II)  NOTWITHSTANDING  SUBPARAGRAPH (I) OF THIS PARAGRAPH, COUNSEL FOR
THE DEFENDANT MAY DISCLOSE OR PERMIT TO BE DISCLOSED THE LISTED  CONTACT
INFORMATION  FOR A POTENTIAL WITNESS TO PERSONS EMPLOYED BY THE ATTORNEY
OR TO PERSONS APPOINTED BY THE COURT TO ASSIST IN THE PREPARATION  OF  A
DEFENDANT'S  CASE  IF  THAT DISCLOSURE IS REQUIRED FOR THAT PREPARATION.
PERSONS PROVIDED THIS INFORMATION BY THE ATTORNEY SHALL BE  INFORMED  BY
THE  ATTORNEY  THAT  FURTHER DISSEMINATION OF THE INFORMATION, EXCEPT AS
PROVIDED BY THIS SUBDIVISION, IS PROHIBITED.   WITHIN  THE  PROSECUTOR'S
DISCRETION,  DISCOVERY  OF  THE LISTED CONTACT INFORMATION MAY BE CONDI-
TIONED ON SERVICE OF A WRITTEN STATEMENT BY COUNSEL FOR THE DEFENDANT OF
THE NAMES OF ANY EMPLOYEES WHO MAY BE PROVIDED INFORMATION  PURSUANT  TO

S. 4089                             5

THIS  SUBSECTION,  AND  DESCRIBING  ANY  KNOWN PRIOR CONNECTIONS BETWEEN
THOSE EMPLOYEES AND ALL DEFENDANTS IN THE CASE.
  (III) IF THE DEFENDANT IS ACTING AS HIS OR HER OWN ATTORNEY, THE COURT
SHALL ENDEAVOR TO PROTECT THE LISTED CONTACT INFORMATION FOR A POTENTIAL
WITNESS  BY  PROVIDING FOR CONTACT ONLY THROUGH PERSONS APPOINTED BY THE
COURT TO ASSIST IN THE PREPARATION OF THE DEFENDANT'S CASE OR BY  IMPOS-
ING OTHER REASONABLE RESTRICTIONS, ABSENT A SHOWING OF GOOD CAUSE.
S 245.30 PHASE TWO DISCOVERY OBLIGATION OF PROSECUTION.
  1.  TIMING  OF  PHASE TWO DISCOVERY FOR THE DEFENDANT. THE PROSECUTION
SHALL PERFORM ITS PHASE TWO DISCOVERY  OBLIGATIONS  UNDER  THIS  SECTION
WITHIN  NINETY  CALENDAR  DAYS  AFTER  THE DEFENDANT'S ARRAIGNMENT ON AN
INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR-
MATION, OR SIMPLIFIED INFORMATION.  PORTIONS OF MATERIALS CLAIMED TO  BE
NON-DISCOVERABLE  MAY  BE WITHHELD PENDING A DETERMINATION AND RULING OF
THE COURT UNDER SECTION 245.10 OF THIS ARTICLE; BUT THE DEFENDANT  SHALL
BE  NOTIFIED  IN WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED UNDER A
PARTICULAR SUBDIVISION, AND THE DISCOVERABLE PORTIONS OF SUCH  MATERIALS
SHALL  BE  DISCLOSED IF PRACTICABLE. WHEN THE DISCOVERABLE MATERIALS ARE
EXCEPTIONALLY VOLUMINOUS, THE TIME PERIOD IN  THIS  SUBDIVISION  MAY  BE
STAYED  BY  AN ADDITIONAL THIRTY CALENDAR DAYS WITHOUT NEED FOR A MOTION
PURSUANT TO SUBDIVISION TWO OF SECTION 245.10 OF THIS ARTICLE.
  2. PHASE TWO  DISCOVERY  FOR  THE  DEFENDANT.  THE  PROSECUTION  SHALL
DISCLOSE TO THE DEFENDANT AS PART OF PHASE TWO DISCOVERY, AND PERMIT THE
DEFENDANT  TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF THE FOLLOW-
ING ITEMS AND INFORMATION WHEN IT RELATES TO THE SUBJECT MATTER  OF  THE
CASE  AND IS IN THE POSSESSION, CUSTODY OR CONTROL OF THE PROSECUTION OR
PERSONS UNDER THE PROSECUTION'S DIRECTION OR CONTROL:
  (A) ALL TRANSCRIPTS OF THE TESTIMONY OF A  PERSON  WHO  HAS  TESTIFIED
BEFORE  A  GRAND  JURY,  INCLUDING BUT NOT LIMITED TO THE DEFENDANT OR A
CO-DEFENDANT. IF IN THE EXERCISE OF REASONABLE DILIGENCE, AND DUE TO THE
LIMITED  AVAILABILITY  OF  TRANSCRIPTION  RESOURCES,  A  TRANSCRIPT   IS
UNAVAILABLE  FOR DISCLOSURE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVI-
SION ONE OF THIS SECTION, THAT PERIOD MAY BE  STAYED  BY  AN  ADDITIONAL
FORTY-FIVE  CALENDAR  DAYS WITHOUT NEED FOR A MOTION PURSUANT TO SECTION
245.10 OF THIS ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON
AS PRACTICABLE AND NOT LATER THAN THIRTY CALENDAR DAYS BEFORE  A  SCHED-
ULED  TRIAL DATE, UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10
OF THIS ARTICLE.
  (B) ALL POLICE REPORTS AND LAW ENFORCEMENT AGENCY  REPORTS,  INCLUDING
THOSE  NOT ELECTRONICALLY STORED.  REPORTS PREVIOUSLY DISCLOSED PURSUANT
TO PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION 245.20  OF  THIS  ARTICLE
NEED NOT BE DISCLOSED AGAIN.
  (C)  ALL  STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN ANY WRITING
OR RECORDING, MADE BY PERSONS WHO HAVE EVIDENCE OR INFORMATION  RELEVANT
TO  ANY  OFFENSE  CHARGED  OR  TO A POTENTIAL DEFENSE THERETO, INCLUDING
THOSE THAT WERE SOLELY IN  THE  POSSESSION  OF  POLICE  OR  ANOTHER  LAW
ENFORCEMENT AGENCY AT THE TIME OF PHASE ONE DISCOVERY. STATEMENTS PREVI-
OUSLY  DISCLOSED PURSUANT TO PARAGRAPH (F) OF SUBDIVISION TWO OF SECTION
245.20 OF THIS ARTICLE NEED NOT BE DISCLOSED AGAIN.
  (D) ALL EVIDENCE AND INFORMATION,  INCLUDING  THAT  WHICH  WAS  SOLELY
KNOWN  TO  POLICE OR OTHER LAW ENFORCEMENT AGENCIES AT THE TIME OF PHASE
ONE DISCOVERY, AND WHETHER OR NOT IT IS ADMISSIBLE OR RECORDED IN TANGI-
BLE FORM, THAT TENDS TO (I) EXCULPATE THE DEFENDANT; (II)  MITIGATE  THE
DEFENDANT'S  CULPABILITY AS TO A CHARGED OFFENSE; (III) SUPPORT A POTEN-
TIAL DEFENSE TO A CHARGED OFFENSE; (IV) PROVIDE A BASIS FOR A MOTION  TO
SUPPRESS  EVIDENCE ON CONSTITUTIONAL GROUNDS; (V) IMPUGN THE CREDIBILITY

S. 4089                             6

OF A PROSECUTION  WITNESS,  INFORMANT  OR  EVIDENCE;  OR  (VI)  MITIGATE
PUNISHMENT.  EVIDENCE  OR  INFORMATION  PREVIOUSLY DISCLOSED PURSUANT TO
PARAGRAPH (G) OF SUBDIVISION TWO OF SECTION 245.20 OF THIS ARTICLE  NEED
NOT BE DISCLOSED AGAIN.
  (E) A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE TO PERSONS
WHO MAY BE CALLED AS WITNESSES, AS WELL AS REQUESTS FOR CONSIDERATION BY
PERSONS  WHO  MAY  BE  CALLED  AS WITNESSES, AND COPIES OF ALL DOCUMENTS
RELEVANT TO A PROMISE, REWARD OR INDUCEMENT.
  (F) ALL TANGIBLE PROPERTY THAT THE PROSECUTION INTENDS TO INTRODUCE IN
ITS CASE-IN-CHIEF AT TRIAL OR A PRE-TRIAL HEARING.  DISCOVERY  OF  ITEMS
UNDER  THIS  PARAGRAPH  MAY  BE  CONDITIONED  ON  SERVICE OF A DEMAND TO
PRODUCE MADE BY THE DEFENDANT, IF IN PHASE ONE DISCOVERY THE PROSECUTION
TIMELY SERVED NOTICE ON THE DEFENDANT THAT A  DEMAND  TO  PRODUCE  ITEMS
UNDER  THIS  PARAGRAPH WOULD HAVE TO BE SERVED ON THE PROSECUTION WITHIN
THIRTY DAYS OF THAT NOTICE.
  (G) ALL TAPES OR OTHER ELECTRONIC  RECORDINGS  WHICH  THE  PROSECUTION
INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING.
  (H) ALL PHOTOGRAPHS AND DRAWINGS MADE OR COMPLETED BY A PUBLIC SERVANT
ENGAGED IN LAW ENFORCEMENT ACTIVITY, OR WHICH WERE MADE BY A PERSON WHOM
THE  PROSECUTOR  INTENDS  TO  CALL  AS A WITNESS AT TRIAL OR A PRE-TRIAL
HEARING, OR WHICH THE PROSECUTION INTENDS TO INTRODUCE  AT  TRIAL  OR  A
PRE-TRIAL HEARING.
  (I)  ALL  PHOTOGRAPHS, PHOTOCOPIES AND REPRODUCTIONS MADE BY OR AT THE
DIRECTION OF LAW ENFORCEMENT PERSONNEL OF  ANY  PROPERTY  PRIOR  TO  ITS
RELEASE PURSUANT TO SECTION 450.10 OF THE PENAL LAW.
  (J)  ALL  REPORTS AND DOCUMENTS CONCERNING PHYSICAL OR MENTAL EXAMINA-
TIONS, OR SCIENTIFIC TESTS OR EXPERIMENTS OR  COMPARISONS,  RELATING  TO
THE  CRIMINAL  ACTION OR PROCEEDING WHICH WERE MADE BY OR AT THE REQUEST
OR DIRECTION OF A PUBLIC SERVANT ENGAGED IN LAW ENFORCEMENT ACTIVITY, OR
WHICH WERE MADE BY A PERSON WHOM THE PROSECUTOR INTENDS  TO  CALL  AS  A
WITNESS  AT  TRIAL  OR  A  PRE-TRIAL  HEARING,  OR WHICH THE PROSECUTION
INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING.
  (K) EXPERT OPINION EVIDENCE, INCLUDING  THE  NAME,  BUSINESS  ADDRESS,
CURRENT  CURRICULUM  VITAE,  AND  A  LIST OF PUBLICATIONS OF EACH EXPERT
WITNESS WHOM THE PROSECUTOR INTENDS TO CALL AS A WITNESS AT TRIAL  OR  A
PRE-TRIAL  HEARING,  AND ALL REPORTS PREPARED BY THE EXPERT THAT PERTAIN
TO THE CASE, OR IF NO REPORT IS PREPARED, A  WRITTEN  STATEMENT  OF  THE
FACTS  AND  OPINIONS  TO  WHICH  THE EXPERT IS EXPECTED TO TESTIFY AND A
SUMMARY OF THE GROUNDS FOR EACH OPINION. THIS PARAGRAPH DOES  NOT  ALTER
OR  IN ANY WAY AFFECT THE PROCEDURES, OBLIGATIONS OR RIGHTS SET FORTH IN
SECTION 250.10 OF THIS TITLE. IF IN THE EXERCISE OF REASONABLE DILIGENCE
THIS INFORMATION IS UNAVAILABLE FOR DISCLOSURE WITHIN  THE  TIME  PERIOD
SPECIFIED  IN  SUBDIVISION  ONE  OF  THIS  SECTION, THAT PERIOD SHALL BE
STAYED WITHOUT NEED FOR A MOTION PURSUANT  TO  SECTION  245.10  OF  THIS
ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE
AND  NOT  LATER  THAN SIXTY CALENDAR DAYS BEFORE A SCHEDULED TRIAL DATE,
UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10 OF THIS ARTICLE.
  (L) (I) IF COUNSEL FOR THE DEFENDANT HAS ACCESS TO A DATABASE BY WHICH
TO OBTAIN THE COMPLETE  CRIMINAL  HISTORY  OF  ALL  DEFENDANTS  AND  ALL
PERSONS  DESIGNATED AS POTENTIAL PROSECUTION WITNESSES PURSUANT TO PARA-
GRAPH (D) OF SUBDIVISION TWO OF SECTION  245.20  OF  THIS  ARTICLE,  THE
PROSECUTOR  SHALL  EITHER  DISCLOSE  A LIST OF THE BIRTH DATES AND KNOWN
ALIASES OF THOSE PERSONS, OR PROVIDE THE  DEFENDANT  WITH  THE  CRIMINAL
HISTORY INFORMATION. (II) IF COUNSEL FOR THE DEFENDANT LACKS ACCESS TO A
DATABASE BY WHICH TO OBTAIN THE COMPLETE CRIMINAL HISTORY OF ALL DEFEND-
ANTS  AND  ALL  PERSONS  DESIGNATED  AS  POTENTIAL PROSECUTION WITNESSES

S. 4089                             7

PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.20  OF  THIS
ARTICLE,  THE  PROSECUTOR SHALL EITHER PROVIDE COUNSEL FOR THE DEFENDANT
WITH ACCESS TO SUCH A DATABASE AND DISCLOSE A LIST OF  THE  BIRTH  DATES
AND  KNOWN  ALIASES  OF THOSE PERSONS, OR PROVIDE THE DEFENDANT WITH THE
CRIMINAL HISTORY INFORMATION.
  (M) WHEN IT IS KNOWN TO THE PROSECUTION, THE EXISTENCE OF ANY  PENDING
CRIMINAL  ACTION AGAINST ALL PERSONS DESIGNATED AS POTENTIAL PROSECUTION
WITNESSES PURSUANT TO PARAGRAPH (D) OF SUBDIVISION TWO OF SECTION 245.20
OF THIS ARTICLE.
  (N) IN ANY PROSECUTION ALLEGING A VIOLATION OF THE VEHICLE AND TRAFFIC
LAW, WHERE THE DEFENDANT IS CHARGED BY INDICTMENT, SUPERIOR COURT INFOR-
MATION, PROSECUTOR'S INFORMATION, INFORMATION,  OR  SIMPLIFIED  INFORMA-
TION,  THE  MOST  RECENT RECORD OF INSPECTION, CALIBRATION AND REPAIR OF
MACHINES AND INSTRUMENTS UTILIZED TO PERFORM ANY  SCIENTIFIC  TESTS  AND
EXPERIMENTS AND THE CERTIFICATION CERTIFICATE, IF ANY, HELD BY THE OPER-
ATOR  OF  THE  MACHINE OR INSTRUMENT, AND ALL OTHER DISCLOSURES REQUIRED
UNDER THIS ARTICLE.
  (O) IN ANY PROSECUTION ALLEGING  A  VIOLATION  OF  SECTION  156.05  OR
156.10  OF  THE  PENAL  LAW,  THE  TIME, PLACE AND MANNER SUCH VIOLATION
OCCURRED.
S 245.40 RECIPROCAL DISCOVERY OBLIGATION OF THE DEFENDANT.
  1. TIMING OF RECIPROCAL DISCOVERY FOR THE PROSECUTION.  THE  DEFENDANT
SHALL  PERFORM  HIS  OR  HER RECIPROCAL DISCOVERY OBLIGATIONS UNDER THIS
SECTION WITHIN THIRTY CALENDAR DAYS AFTER BEING SERVED WITH  THE  PROSE-
CUTION'S  CERTIFICATE  OF  COMPLIANCE  PURSUANT  TO  SUBDIVISION  ONE OF
SECTION 245.65 OF THIS ARTICLE. PORTIONS  OF  MATERIALS  CLAIMED  TO  BE
NON-DISCOVERABLE  MAY  BE WITHHELD PENDING A DETERMINATION AND RULING OF
THE COURT UNDER SECTION 245.10 OF  THIS  ARTICLE;  BUT  THE  PROSECUTION
SHALL  BE  NOTIFIED  IN  WRITING THAT INFORMATION HAS NOT BEEN DISCLOSED
UNDER THIS SECTION, AND THE  DISCOVERABLE  PORTIONS  OF  SUCH  MATERIALS
SHALL BE DISCLOSED IF PRACTICABLE.
  2.  RECIPROCAL  DISCOVERY  FOR  THE  PROSECUTION. THE DEFENDANT SHALL,
SUBJECT TO CONSTITUTIONAL LIMITATIONS, DISCLOSE TO THE PROSECUTION,  AND
PERMIT THE PROSECUTION TO DISCOVER, INSPECT, COPY OR PHOTOGRAPH, EACH OF
THE FOLLOWING ITEMS AND INFORMATION WHEN IT IS WITHIN THE DEFENDANT'S OR
COUNSEL FOR THE DEFENDANT'S POSSESSION OR CONTROL:
  (A) THE NAMES, KNOWN ALIASES, ADDRESSES AND BIRTH DATES OF ALL PERSONS
OTHER THAN THE DEFENDANT WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES
AT  TRIAL  OR  A PRE-TRIAL HEARING. DISCLOSURE OF THIS INFORMATION FOR A
PERSON WHOM THE DEFENDANT INTENDS TO CALL AS  A  WITNESS  FOR  THE  SOLE
PURPOSE  OF IMPEACHING A PROSECUTION WITNESS IS NOT REQUIRED UNTIL AFTER
THE PROSECUTION WITNESS HAS TESTIFIED.
  (B) ALL STATEMENTS, WRITTEN OR RECORDED OR SUMMARIZED IN  ANY  WRITING
OR  RECORDING,  MADE  BY  ALL  PERSONS OTHER THAN THE DEFENDANT WHOM THE
DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL OR A PRE-TRIAL  HEARING;
EXCEPT  THAT  DISCLOSURE  OF  SUCH  STATEMENTS MADE BY A PERSON WHOM THE
DEFENDANT INTENDS TO CALL AS A WITNESS FOR THE SOLE PURPOSE OF  IMPEACH-
ING  A  PROSECUTION  WITNESS IS NOT REQUIRED UNTIL AFTER THE PROSECUTION
WITNESS HAS TESTIFIED.
  (C) A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE TO PERSONS
WHOM THE DEFENDANT INTENDS TO CALL AS WITNESSES AT TRIAL OR A  PRE-TRIAL
HEARING,  AS  WELL  AS  REQUESTS  FOR CONSIDERATION BY SUCH PERSONS, AND
COPIES OF ALL DOCUMENTS RELEVANT TO A PROMISE, REWARD OR INDUCEMENT.
  (D) ALL TANGIBLE PROPERTY THAT THE DEFENDANT INTENDS TO  INTRODUCE  IN
THE DEFENDANT'S CASE-IN-CHIEF AT TRIAL OR A PRE-TRIAL HEARING.

S. 4089                             8

  (E)  ALL  TAPES  OR  OTHER  ELECTRONIC  RECORDINGS WHICH THE DEFENDANT
INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING.
  (F) ALL PHOTOGRAPHS AND DRAWINGS WHICH THE DEFENDANT INTENDS TO INTRO-
DUCE AT TRIAL OR A PRE-TRIAL HEARING.
  (G)  ALL  REPORTS AND DOCUMENTS CONCERNING PHYSICAL OR MENTAL EXAMINA-
TIONS, OR SCIENTIFIC TESTS OR  EXPERIMENTS  OR  COMPARISONS,  WHICH  THE
DEFENDANT INTENDS TO INTRODUCE AT TRIAL OR A PRE-TRIAL HEARING, OR WHICH
WERE MADE BY A PERSON WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS AT
TRIAL OR A PRE-TRIAL HEARING.
  (H)  INTENDED  EXPERT  OPINION  EVIDENCE, INCLUDING THE NAME, BUSINESS
ADDRESS, CURRENT CURRICULUM VITAE, AND A LIST OF  PUBLICATIONS  OF  EACH
EXPERT  WITNESS WHOM THE DEFENDANT INTENDS TO CALL AS A WITNESS AT TRIAL
OR A PRE-TRIAL HEARING, AND ALL REPORTS  PREPARED  BY  THE  EXPERT  THAT
PERTAIN TO THE CASE, OR IF NO REPORT IS PREPARED, A WRITTEN STATEMENT OF
THE  FACTS AND OPINIONS TO WHICH THE EXPERT IS EXPECTED TO TESTIFY AND A
SUMMARY OF THE GROUNDS FOR EACH OPINION. THIS PARAGRAPH DOES  NOT  ALTER
OR  IN ANY WAY AFFECT THE PROCEDURES, OBLIGATIONS OR RIGHTS SET FORTH IN
SECTION 250.10 OF THIS TITLE. IF IN THE EXERCISE OF REASONABLE DILIGENCE
THIS INFORMATION IS UNAVAILABLE FOR DISCLOSURE WITHIN  THE  TIME  PERIOD
SPECIFIED  IN  SUBDIVISION  ONE  OF  THIS  SECTION, THAT PERIOD SHALL BE
STAYED WITHOUT NEED FOR A MOTION PURSUANT  TO  SECTION  245.10  OF  THIS
ARTICLE; EXCEPT THAT THE DISCLOSURE SHALL BE MADE AS SOON AS PRACTICABLE
AND  NOT  LATER THAN THIRTY CALENDAR DAYS BEFORE A SCHEDULED TRIAL DATE,
UNLESS AN ORDER IS OBTAINED PURSUANT TO SECTION 245.10 OF THIS ARTICLE.
S 245.45 DISCLOSURE OF PRIOR MISCONDUCT OR CRIMINAL ACTS.
  1. USE AT TRIAL. NOT LATER THAN FIFTEEN CALENDAR DAYS BEFORE A  SCHED-
ULED  TRIAL DATE, THE PROSECUTION SHALL DISCLOSE TO THE DEFENDANT A LIST
OF ALL MISCONDUCT AND CRIMINAL ACTS OF THE DEFENDANT NOT CHARGED IN  THE
INDICTMENT, SUPERIOR COURT INFORMATION, PROSECUTOR'S INFORMATION, INFOR-
MATION,  OR SIMPLIFIED INFORMATION, WHICH THE PROSECUTION INTENDS TO USE
AT TRIAL FOR PURPOSES OF:
  (A) IMPEACHING THE CREDIBILITY OF THE DEFENDANT; OR
  (B) AS SUBSTANTIVE PROOF OF ANY MATERIAL ISSUE IN THE CASE.
  2. NOTIFICATION FOR WHAT PURPOSE. IN ADDITION,  THE  PROSECUTOR  SHALL
DESIGNATE  WHETHER HE OR SHE INTENDS TO USE EACH LISTED ACT FOR IMPEACH-
MENT AND/OR AS SUBSTANTIVE PROOF.
S 245.50 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
  1. AVAILABILITY. AFTER THE FILING OF  AN  ACCUSATORY  INSTRUMENT,  AND
SUBJECT TO CONSTITUTIONAL LIMITATIONS, THE COURT MAY, UPON MOTION OF THE
PROSECUTION  SHOWING PROBABLE CAUSE TO BELIEVE THE DEFENDANT HAS COMMIT-
TED THE CRIME, A CLEAR INDICATION THAT RELEVANT MATERIAL  EVIDENCE  WILL
BE  FOUND,  AND  THAT THE METHOD USED TO SECURE IT IS SAFE AND RELIABLE,
REQUIRE A DEFENDANT TO PROVIDE NON-TESTIMONIAL EVIDENCE, INCLUDING TO:
  (A) APPEAR IN A LINEUP;
  (B) SPEAK FOR IDENTIFICATION BY A WITNESS OR POTENTIAL WITNESS;
  (C) BE FINGERPRINTED;
  (D) POSE FOR PHOTOGRAPHS NOT INVOLVING REENACTMENT OF AN EVENT;
  (E) PERMIT THE TAKING OF SAMPLES OF THE DEFENDANT'S BLOOD,  HAIR,  AND
OTHER  MATERIALS  OF  THE DEFENDANT'S BODY THAT INVOLVES NO UNREASONABLE
INTRUSION THEREOF;
  (F) PROVIDE SPECIMENS OF THE DEFENDANT'S HANDWRITING; AND
  (G) SUBMIT TO A REASONABLE  PHYSICAL  OR  MEDICAL  INSPECTION  OF  THE
DEFENDANT'S BODY.
  2. LIMITATIONS. THIS SECTION SHALL NOT BE CONSTRUED TO ALTER OR IN ANY
WAY  AFFECT  THE ISSUANCE OF A SIMILAR COURT ORDER, AS MAY BE AUTHORIZED
BY LAW, BEFORE THE FILING OF AN ACCUSATORY INSTRUMENT,  CONSISTENT  WITH

S. 4089                             9

SUCH  RIGHTS  AS THE DEFENDANT MAY DERIVE FROM THE STATE CONSTITUTION OR
THE UNITED STATES CONSTITUTION. THIS SECTION SHALL NOT BE  CONSTRUED  TO
ALTER  OR  IN ANY WAY AFFECT THE ADMINISTRATION OF A CHEMICAL TEST WHERE
OTHERWISE  AUTHORIZED.  AN ORDER PURSUANT TO THIS SECTION MAY BE DENIED,
LIMITED OR CONDITIONED AS PROVIDED IN SECTION 245.10 OF THIS ARTICLE.
S 245.55 COURT ORDERS FOR PRESERVATION, ACCESS OR DISCOVERY.
  1. ORDER TO PRESERVE EVIDENCE. AT ANY TIME, A PARTY  MAY  MOVE  FOR  A
COURT  ORDER  TO  ANY  INDIVIDUAL, AGENCY OR OTHER ENTITY IN POSSESSION,
CUSTODY OR CONTROL OF ITEMS WHICH RELATE TO THE SUBJECT  MATTER  OF  THE
CASE  OR  ARE OTHERWISE RELEVANT, REQUIRING THAT SUCH ITEMS BE PRESERVED
FOR A SPECIFIED PERIOD OF TIME. THE COURT SHALL HEAR AND RULE UPON  SUCH
MOTIONS EXPEDITIOUSLY. THE COURT MAY MODIFY OR VACATE SUCH AN ORDER UPON
A  SHOWING  THAT PRESERVATION OF PARTICULAR EVIDENCE WILL CREATE SIGNIF-
ICANT HARDSHIP, ON CONDITION THAT THE PROBATIVE VALUE OF  THAT  EVIDENCE
IS PRESERVED BY A SPECIFIED ALTERNATIVE MEANS.
  2.  ORDER  TO GRANT ACCESS TO PREMISES. AT ANY TIME, THE DEFENDANT MAY
MOVE FOR A COURT ORDER TO ANY INDIVIDUAL,  AGENCY  OR  OTHER  ENTITY  IN
POSSESSION,  CUSTODY  OR CONTROL OF A CRIME SCENE OR OTHER PREMISES THAT
RELATES TO THE SUBJECT MATTER OF THE  CASE  OR  IS  OTHERWISE  RELEVANT,
REQUIRING  THAT  COUNSEL FOR THE DEFENDANT BE GRANTED PROMPT AND REASON-
ABLE ACCESS TO INSPECT, PHOTOGRAPH OR MEASURE THAT CRIME SCENE OR  THOSE
PREMISES,  AND  THAT THE CONDITION OF THE CRIME SCENE OR PREMISES REMAIN
UNCHANGED IN THE INTERIM. THE  COURT  SHALL  HEAR  AND  RULE  UPON  SUCH
MOTIONS EXPEDITIOUSLY. THE COURT MAY MODIFY OR VACATE SUCH AN ORDER UPON
A  SHOWING  THAT GRANTING ACCESS TO A PARTICULAR CRIME SCENE OR PREMISES
WILL CREATE SIGNIFICANT HARDSHIP, ON CONDITION THAT THE PROBATIVE  VALUE
OF THAT LOCATION IS PRESERVED BY A SPECIFIED ALTERNATIVE MEANS.
  3.  DISCRETIONARY  DISCOVERY  BY  ORDER OF THE COURT. THE COURT IN ITS
DISCRETION MAY, UPON A SHOWING BY THE  DEFENDANT  THAT  THE  REQUEST  IS
REASONABLE  AND  THAT  THE DEFENDANT IS UNABLE WITHOUT UNDUE HARDSHIP TO
OBTAIN THE SUBSTANTIAL EQUIVALENT BY OTHER MEANS, ORDER THE PROSECUTION,
OR ANY INDIVIDUAL, AGENCY OR OTHER ENTITY SUBJECT TO THE JURISDICTION OF
THE COURT, TO MAKE AVAILABLE FOR DISCLOSURE TO THE DEFENDANT ANY MATERI-
AL OR INFORMATION WHICH POTENTIALLY RELATES TO THE SUBJECT MATTER OF THE
CASE OR IS OTHERWISE RELEVANT. A MOTION UNDER THIS SUBDIVISION  MUST  BE
ON  NOTICE TO ANY PERSON OR ENTITY AFFECTED BY THE ORDER. THE COURT MAY,
UPON REQUEST OF ANY PERSON OR ENTITY AFFECTED BY THE  ORDER,  VACATE  OR
MODIFY  THE ORDER IF COMPLIANCE WOULD BE UNREASONABLE OR OPPRESSIVE. THE
COURT MAY PERMIT A PARTY SEEKING OR OPPOSING A  DISCRETIONARY  ORDER  OF
DISCOVERY  UNDER THIS SUBDIVISION, OR ANOTHER AFFECTED PERSON OR ENTITY,
TO SUBMIT PAPERS OR TESTIFY EX PARTE OR IN CAMERA. ANY SUCH PAPERS AND A
TRANSCRIPT OF SUCH TESTIMONY SHALL BE SEALED AND SHALL CONSTITUTE A PART
OF THE RECORD ON APPEAL.
S 245.60 MATERIAL HELD BY OTHER GOVERNMENTAL PERSONNEL.
  UPON THE DEFENDANT'S REQUEST AND DESIGNATION OF MATERIAL  OR  INFORMA-
TION  WHICH WOULD BE DISCOVERABLE UNDER SECTION 245.20 OR 245.30 OF THIS
ARTICLE IF IN THE POSSESSION, CUSTODY OR CONTROL OF THE  PROSECUTION  OR
PERSONS  UNDER  THE PROSECUTION'S DIRECTION OR CONTROL, BUT WHICH IS, IN
FACT, IN THE  POSSESSION,  CUSTODY  OR  CONTROL  OF  OTHER  GOVERNMENTAL
PERSONNEL,  THE  PROSECUTOR  SHALL MAKE A DILIGENT, GOOD FAITH EFFORT TO
ASCERTAIN THE EXISTENCE OF SUCH MATERIAL OR INFORMATION AND TO CAUSE  IT
TO BE MADE AVAILABLE FOR DISCOVERY. IF THE PROSECUTOR'S EFFORT IS UNSUC-
CESSFUL AND SUCH MATERIAL OR INFORMATION OR OTHER GOVERNMENTAL PERSONNEL
ARE  SUBJECT TO THE JURISDICTION OF THE COURT, THE COURT, UPON MOTION OF
THE DEFENDANT, SHALL ISSUE SUITABLE SUBPOENAS OR ORDERS  TO  CAUSE  SUCH
MATERIAL OR INFORMATION TO BE MADE AVAILABLE FOR DISCOVERY.

S. 4089                            10

S 245.65 CERTIFICATES OF COMPLIANCE.
  1. BY THE PROSECUTION. WHEN THE PROSECUTION HAS PROVIDED THE DISCOVERY
REQUIRED  BY  SECTIONS 245.20 AND 245.30 OF THIS ARTICLE, EXCEPT FOR ANY
ITEMS OR INFORMATION THAT ARE  THE  SUBJECT  OF  AN  ORDER  PURSUANT  TO
SECTION  245.10  OF  THIS ARTICLE, IT SHALL SERVE UPON THE DEFENDANT AND
FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE. THE  CERTIFICATE  SHALL
STATE  THAT,  AFTER  EXERCISING  DUE  DILIGENCE  AND  MAKING  REASONABLE
INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL AND INFORMATION SUBJECT
TO DISCOVERY, THE PROSECUTOR HAS DISCLOSED AND MADE AVAILABLE ALL  KNOWN
MATERIAL  AND  INFORMATION  SUBJECT TO DISCOVERY. IT SHALL ALSO IDENTIFY
THE ITEMS PROVIDED. IF ADDITIONAL  DISCOVERY  IS  SUBSEQUENTLY  PROVIDED
PRIOR  TO  TRIAL  PURSUANT  TO SECTION 245.80 OF THIS ARTICLE, A SUPPLE-
MENTAL CERTIFICATE SHALL BE SERVED UPON THE DEFENDANT AND FILED WITH THE
COURT IDENTIFYING THE ADDITIONAL MATERIAL AND INFORMATION  PROVIDED.  NO
ADVERSE  CONSEQUENCE  TO  THE PROSECUTION OR THE PROSECUTOR SHALL RESULT
FROM THE FILING OF A CERTIFICATE OF COMPLIANCE IN GOOD  FAITH;  BUT  THE
COURT  MAY  GRANT  A  REMEDY  FOR  A  DISCOVERY VIOLATION AS PROVIDED IN
SECTION 245.90 OF THIS ARTICLE.
  2. BY THE DEFENDANT. WHEN THE DEFENDANT  HAS  PROVIDED  ALL  DISCOVERY
REQUIRED  BY  SECTION  245.40  OF  THIS ARTICLE, EXCEPT FOR ANY ITEMS OR
INFORMATION THAT ARE THE SUBJECT OF AN ORDER PURSUANT TO SECTION  245.10
OF  THIS  ARTICLE, COUNSEL FOR THE DEFENDANT SHALL SERVE UPON THE PROSE-
CUTION AND FILE WITH THE COURT A CERTIFICATE OF COMPLIANCE. THE  CERTIF-
ICATE  SHALL  STATE  THAT,  AFTER  EXERCISING  DUE  DILIGENCE AND MAKING
REASONABLE INQUIRIES TO ASCERTAIN THE EXISTENCE OF MATERIAL AND INFORMA-
TION SUBJECT TO DISCOVERY, COUNSEL FOR THE DEFENDANT HAS  DISCLOSED  AND
MADE  AVAILABLE ALL KNOWN MATERIAL AND INFORMATION SUBJECT TO DISCOVERY.
IT SHALL ALSO IDENTIFY THE ITEMS PROVIDED. IF  ADDITIONAL  DISCOVERY  IS
SUBSEQUENTLY  PROVIDED PRIOR TO TRIAL PURSUANT TO SECTION 245.80 OF THIS
ARTICLE, A SUPPLEMENTAL CERTIFICATE SHALL BE SERVED UPON THE PROSECUTION
AND FILED WITH THE COURT IDENTIFYING THE ADDITIONAL MATERIAL AND  INFOR-
MATION  PROVIDED. NO ADVERSE CONSEQUENCE TO THE DEFENDANT OR COUNSEL FOR
THE DEFENDANT SHALL RESULT FROM THE FILING OF A CERTIFICATE  OF  COMPLI-
ANCE  IN  GOOD  FAITH;  BUT THE COURT MAY GRANT A REMEDY FOR A DISCOVERY
VIOLATION AS PROVIDED IN SECTION 245.90 OF THIS ARTICLE.
S 245.70 COURT ORDERED PROCEDURES TO FACILITATE COMPLIANCE.
  TO FACILITATE COMPLIANCE WITH THIS ARTICLE, AND TO REDUCE  OR  STREAM-
LINE  LITIGATION  OF  ANY  DISPUTES  ABOUT  DISCOVERY,  THE COURT IN ITS
DISCRETION MAY ISSUE AN ORDER:
  1. REQUIRING THAT THE PROSECUTOR AND COUNSEL FOR THE  DEFENDANT  DILI-
GENTLY  CONFER  TO  ATTEMPT  TO REACH AN ACCOMMODATION AS TO ANY DISPUTE
CONCERNING DISCOVERY PRIOR TO SEEKING A RULING FROM THE COURT;
  2. REQUIRING A DISCOVERY COMPLIANCE CONFERENCE  AT  A  SPECIFIED  TIME
PRIOR  TO  TRIAL BETWEEN THE PROSECUTOR, COUNSEL FOR ALL DEFENDANTS, AND
THE COURT OR ITS STAFF;
  3. REQUIRING THE PROSECUTION TO  FILE  AN  ADDITIONAL  CERTIFICATE  OF
COMPLIANCE  THAT  STATES THAT THE PROSECUTOR AND/OR AN APPROPRIATE NAMED
AGENT HAS MADE REASONABLE INQUIRIES OF ALL  POLICE  OFFICERS  AND  OTHER
PERSONS  WHO  HAVE  PARTICIPATED IN INVESTIGATING OR EVALUATING THE CASE
ABOUT THE EXISTENCE OF ANY  FAVORABLE  EVIDENCE  OR  INFORMATION  WITHIN
PARAGRAPH  (D)  OF  SUBDIVISION  TWO  OF SECTION 245.30 OF THIS ARTICLE,
INCLUDING SUCH EVIDENCE OR INFORMATION THAT WAS NOT REDUCED  TO  WRITING
OR  OTHERWISE  MEMORIALIZED  OR PRESERVED AS EVIDENCE, AND HAS DISCLOSED
ANY SUCH INFORMATION TO THE DEFENDANT; AND/OR
  4. REQUIRING OTHER MEASURES OR  PROCEEDINGS  DESIGNED  TO  CARRY  INTO
EFFECT THE GOALS OF THIS ARTICLE.

S. 4089                            11

S 245.75 FLOW OF INFORMATION WITH POLICE.
  1.  PROVISION  OF  LAW  ENFORCEMENT  AGENCY FILES. UPON REQUEST BY THE
PROSECUTION, A NEW YORK STATE LAW ENFORCEMENT AGENCY SHALL  MAKE  AVAIL-
ABLE TO THE PROSECUTION A COMPLETE COPY OF ITS COMPLETE FILES RELATED TO
THE  INVESTIGATION  OF  THE CASE OR THE PROSECUTION OF THE DEFENDANT FOR
COMPLIANCE WITH THIS ARTICLE, UNLESS EXCEPTIONAL CIRCUMSTANCES AS  FOUND
BY  SENIOR  LAW ENFORCEMENT PERSONNEL JUSTIFY WITHHOLDING OF ANY MATERI-
ALS; BUT THE PROSECUTION SHALL BE NOTIFIED IN WRITING  THAT  INFORMATION
HAS  NOT  BEEN PROVIDED, UNLESS EXCEPTIONAL CIRCUMSTANCES REQUIRE OTHER-
WISE.
  2. SUFFICIENT  COMMUNICATION  FOR  COMPLIANCE.  THE  PROSECUTOR  SHALL
ENDEAVOR  TO ENSURE THAT A FLOW OF INFORMATION IS MAINTAINED BETWEEN THE
POLICE AND OTHER INVESTIGATIVE PERSONNEL AND HIS OR  HER  OFFICE  SUFFI-
CIENT  TO PLACE WITHIN HIS OR HER POSSESSION OR CONTROL ALL MATERIAL AND
INFORMATION PERTINENT TO THE  DEFENDANT  AND  THE  OFFENSE  OR  OFFENSES
CHARGED,  INCLUDING ANY EVIDENCE OR INFORMATION WHICH TENDS TO EXCULPATE
THE DEFENDANT OR TO MITIGATE THE DEFENDANT'S CULPABILITY AS TO A CHARGED
OFFENSE, OR WHICH TENDS TO SUPPORT A POTENTIAL DEFENSE THERETO, OR WHICH
TENDS TO PROVIDE A BASIS FOR A MOTION TO SUPPRESS EVIDENCE ON  CONSTITU-
TIONAL  GROUNDS,  OR  WHICH  TENDS TO IMPUGN THE CREDIBILITY OF A PROSE-
CUTION WITNESS, INFORMANT OR EVIDENCE, OR WHICH WOULD TEND  TO  MITIGATE
THE PUNISHMENT OF THE DEFENDANT.
S 245.80 CONTINUING DUTY TO DISCLOSE.
  IF  EITHER  THE  PROSECUTION  OR  THE DEFENDANT SUBSEQUENTLY LEARNS OF
ADDITIONAL MATERIAL OR INFORMATION WHICH IT WOULD HAVE BEEN UNDER A DUTY
TO DISCLOSE PURSUANT TO ANY PROVISIONS OF THIS ARTICLE AT THE TIME OF  A
PREVIOUS DISCOVERY OBLIGATION OR DISCOVERY ORDER, IT SHALL EXPEDITIOUSLY
NOTIFY  THE OTHER PARTY AND DISCLOSE THE ADDITIONAL MATERIAL OR INFORMA-
TION  AS  REQUIRED  FOR  INITIAL  DISCOVERY  UNDER  THIS  ARTICLE.  THIS
PROVISION  ALSO  REQUIRES  EXPEDITIOUS  DISCLOSURE BY THE PROSECUTION OF
MATERIAL OR INFORMATION THAT BECAME RELEVANT TO THE CASE OR DISCOVERABLE
BASED UPON RECIPROCAL DISCOVERY RECEIVED FROM THE DEFENDANT PURSUANT  TO
SECTION 245.40 OF THIS ARTICLE.
S 245.85 WORK PRODUCT.
  THIS ARTICLE DOES NOT AUTHORIZE DISCOVERY BY A PARTY OF THOSE PORTIONS
OF RECORDS, REPORTS, CORRESPONDENCE, MEMORANDA, OR INTERNAL DOCUMENTS OF
THE  ADVERSE PARTY WHICH ARE ONLY THE LEGAL RESEARCH, OPINIONS, THEORIES
OR CONCLUSIONS OF THE ADVERSE PARTY OR ITS ATTORNEY  OR  THE  ATTORNEY'S
AGENTS,  OR  OF STATEMENTS OF A DEFENDANT, WRITTEN OR RECORDED OR SUMMA-
RIZED IN ANY WRITING OR RECORDING, MADE TO THE ATTORNEY FOR THE  DEFEND-
ANT OR THE ATTORNEY'S AGENTS.
S 245.90 AVAILABILITY OF REMEDIES FOR VIOLATIONS.
  1.  NEED  FOR REMEDY. (A) WHEN MATERIAL OR INFORMATION IS DISCOVERABLE
UNDER THIS ARTICLE BUT IS DISCLOSED BELATEDLY, THE COURT SHALL IMPOSE AN
APPROPRIATE REMEDY IF THE PARTY ENTITLED TO DISCLOSURE SHOWS THAT IT WAS
SIGNIFICANTLY PREJUDICED. IF THE UNTIMELY  DISCLOSURE  OCCURRED  BECAUSE
THE  PARTY  RESPONSIBLE  FAILED  TO  MAKE REASONABLY DILIGENT EFFORTS TO
COMPLY WITH THIS ARTICLE, THE COURT HAS DISCRETION TO IMPOSE  AN  APPRO-
PRIATE  REMEDY IF THE PARTY ENTITLED TO DISCLOSURE SHOWS SOME PREJUDICE.
IN EITHER SITUATION THE PARTY ENTITLED  TO  DISCLOSURE  SHALL  BE  GIVEN
REASONABLE TIME TO PREPARE AND RESPOND TO THE NEW MATERIAL.
  (B)  WHEN  MATERIAL  OR INFORMATION IS DISCOVERABLE UNDER THIS ARTICLE
BUT CANNOT BE DISCLOSED BECAUSE IT HAS BEEN LOST OR DESTROYED, THE COURT
SHALL IMPOSE AN APPROPRIATE REMEDY IF THE PARTY ENTITLED  TO  DISCLOSURE
SHOWS THAT THE LOST OR DESTROYED MATERIAL MAY HAVE CONTAINED SOME INFOR-
MATION  RELEVANT  TO  A  CONTESTED ISSUE. THE APPROPRIATE REMEDY IS THAT

S. 4089                            12

WHICH IS PROPORTIONATE TO THE  POTENTIAL  WAYS  IN  WHICH  THE  LOST  OR
DESTROYED MATERIAL REASONABLY COULD HAVE BEEN HELPFUL TO THE PARTY ENTI-
TLED TO DISCLOSURE.
  2.  AVAILABLE REMEDIES. FOR FAILURE TO COMPLY WITH ANY DISCOVERY ORDER
IMPOSED OR ISSUED PURSUANT TO THIS ARTICLE, THE COURT MAY MAKE A FURTHER
ORDER FOR DISCOVERY, GRANT  A  CONTINUANCE,  ORDER  THAT  A  HEARING  BE
REOPENED,  ORDER THAT A WITNESS BE CALLED OR RECALLED, INSTRUCT THE JURY
THAT IT MAY DRAW  AN  ADVERSE  INFERENCE  REGARDING  THE  NONCOMPLIANCE,
PRECLUDE  OR  STRIKE  A  WITNESS'S TESTIMONY OR A PORTION OF A WITNESS'S
TESTIMONY, ADMIT OR  EXCLUDE  EVIDENCE,  ORDER  A  MISTRIAL,  ORDER  THE
DISMISSAL  OF ALL OR SOME OF THE CHARGES, OR MAKE SUCH OTHER ORDER AS IT
DEEMS JUST UNDER THE CIRCUMSTANCES; EXCEPT THAT ANY SANCTION AGAINST THE
DEFENDANT SHALL COMPORT WITH THE  DEFENDANT'S  CONSTITUTIONAL  RIGHT  TO
PRESENT  A  DEFENSE,  AND  PRECLUDING  A DEFENSE WITNESS FROM TESTIFYING
SHALL BE PERMISSIBLE ONLY UPON A FINDING THAT THE DEFENDANT'S FAILURE TO
COMPLY WITH THE DISCOVERY OBLIGATION OR ORDER WAS WILLFUL AND  MOTIVATED
BY A DESIRE TO OBTAIN A TACTICAL ADVANTAGE.
  3.  CONSEQUENCES  OF  NONDISCLOSURE  OF STATEMENT OF TESTIFYING PROSE-
CUTION WITNESS. THE FAILURE OF THE PROSECUTOR OR ANY AGENT OF THE PROSE-
CUTOR TO DISCLOSE ANY WRITTEN OR RECORDED STATEMENT  MADE  BY  A  PROSE-
CUTION  WITNESS  WHICH  RELATES  TO  THE SUBJECT MATTER OF THE WITNESS'S
TESTIMONY SHALL NOT CONSTITUTE GROUNDS FOR ANY  COURT  TO  ORDER  A  NEW
PRE-TRIAL  HEARING  OR  SET  ASIDE  A  CONVICTION, OR REVERSE, MODIFY OR
VACATE A JUDGMENT OF CONVICTION, IN THE ABSENCE  OF  A  SHOWING  BY  THE
DEFENDANT THAT THERE IS A REASONABLE POSSIBILITY THAT THE NON-DISCLOSURE
MATERIALLY  CONTRIBUTED  TO THE RESULT OF THE TRIAL OR OTHER PROCEEDING;
PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION SHALL  AFFECT  OR  LIMIT
ANY  RIGHT  THE  DEFENDANT MAY HAVE TO A REOPENED PRE-TRIAL HEARING WHEN
SUCH STATEMENTS WERE DISCLOSED BEFORE THE CLOSE OF EVIDENCE AT TRIAL.
S 245.95 ADMISSIBILITY OF DISCOVERY.
  THE FACT THAT A PARTY HAS INDICATED DURING THE  DISCOVERY  PROCESS  AN
INTENTION  TO OFFER SPECIFIED EVIDENCE OR TO CALL A SPECIFIED WITNESS IS
NOT ADMISSIBLE IN EVIDENCE OR GROUNDS FOR ADVERSE COMMENT AT  A  HEARING
OR A TRIAL.
  S  3. Subdivision 9 of section 65.20 of the criminal procedure law, as
added by chapter 505 of the laws of 1985 and as  renumbered  by  chapter
548 of the laws of 2007, is amended to read as follows:
  9.  (a) Prior to the commencement of the hearing conducted pursuant to
subdivision five of this section, the district attorney  shall,  subject
to  a  protective order, comply with the provisions of subdivision [one]
TWO of section [240.45] 245.30 of  this  chapter  as  they  concern  any
witness  whom  the  district attorney intends to call at the hearing and
the child witness.
  (b) Before a defendant calls a witness at  such  hearing,  he  or  she
must,  subject  to  a  protective  order,  comply with the provisions of
subdivision two of section [240.45]  245.30  of  this  chapter  as  they
concern all the witnesses the defendant intends to call at such hearing.
  S 4. Subdivision 5 of section 200.95 of the criminal procedure law, as
added by chapter 558 of the laws of 1982, is amended to read as follows:
  5.  Court  ordered bill of particulars.  Where a prosecutor has timely
served a written refusal pursuant to subdivision four  of  this  section
and upon motion, made in writing, of a defendant, who has made a request
for  a  bill of particulars and whose request has not been complied with
in whole or in part, the court must, to the extent a protective order is
not warranted, order the prosecutor to comply with the request if it  is
satisfied that the items of factual information requested are authorized

S. 4089                            13

to  be  included  in a bill of particulars, and that such information is
necessary to enable the defendant adequately to prepare or  conduct  his
defense  and,  if  the request was untimely, a finding of good cause for
the  delay.  Where  a prosecutor has not timely served a written refusal
pursuant to subdivision four of this section the court must,  unless  it
is  satisfied  that  the  people have shown good cause why such an order
should not be issued, issue an order requiring the prosecutor to  comply
or providing for any other [order] REMEDY authorized by [subdivision one
of] section [240.70] 245.90 OF THIS TITLE.
  S  5. Paragraph (c) of subdivision 1 of section 255.10 of the criminal
procedure law, as added by chapter 763 of the laws of 1974,  is  amended
to read as follows:
  (c)  granting discovery pursuant to article [240] 245; or
  S  6.  Section 340.30 of the criminal procedure law is amended to read
as follows:
S 340.30 Pre-trial discovery and notices of defenses.
  The provisions of article two hundred [forty]  FORTY-FIVE,  concerning
pre-trial discovery by a defendant under indictment in a superior court,
and article two hundred fifty, concerning pre-trial notice to the people
by  a  defendant  under  indictment  in  a superior court who intends to
advance a trial defense of mental disease or defect or of  alibi,  apply
to a prosecution of an information in a local criminal court.
  S  7.  Subdivision 14 of section 400.27 of the criminal procedure law,
as added by chapter 1 of the  laws  of  1995,  is  amended  to  read  as
follows:
  14.  (a)  At a reasonable time prior to the sentencing proceeding or a
mental retardation hearing:
  (i) the prosecutor shall, unless previously disclosed and subject to a
protective order, make available to the  defendant  the  statements  and
information  specified  in  subdivision  [one]  TWO  of section [240.45]
245.20 AND SUBDIVISION TWO OF SECTION  245.30  and  make  available  for
inspection,  photographing, copying or testing the property specified in
[subdivision one of section 240.20] SUCH SECTIONS; and
  (ii) the defendant shall, unless previously disclosed and subject to a
protective order, make available to the prosecution the  statements  and
information  specified in subdivision two of section [240.45] 245.40 and
make  available  for  inspection,  photographing,  copying  or  testing,
subject  to constitutional limitations, the reports, documents and other
property specified in [subdivision one of section 240.30] SUCH SECTION.
  (b) Where a party refuses to make disclosure pursuant to this section,
the provisions of [section 240.35, subdivision one of section 240.40 and
section 240.50] SECTIONS 245.55, 245.70 AND 245.90 shall apply.
  (c) If, after complying with the provisions  of  this  section  or  an
order pursuant thereto, a party finds either before or during a sentenc-
ing  proceeding  or  mental  retardation  hearing,  additional  material
subject to discovery or covered by court order, the party shall promptly
make disclosure or apply for a  protective  order  PURSUANT  TO  SECTION
245.10.
  (d)  If  the court finds that a party has failed to comply with any of
the provisions of this section, the court may enter any of the  [orders]
REMEDIES specified in subdivision one of section [240.70] 245.90.
  S  8.  The  opening  paragraph  of  paragraph  (b) of subdivision 1 of
section 440.30 of the criminal procedure law, as added by chapter 19  of
the laws of 2012, is amended to read as follows:
  In  conjunction with the filing or consideration of a motion to vacate
a judgment pursuant to section 440.10 of this  article  by  a  defendant

S. 4089                            14

convicted after a trial, in cases where the court has ordered an eviden-
tiary  hearing  upon  such  motion,  the court may order that the people
produce or make available for inspection property, [as defined in subdi-
vision  three of section 240.10 of this part,] in its possession, custo-
dy, or control that was secured in connection with the investigation  or
prosecution  of the defendant upon credible allegations by the defendant
and a finding by the court that such property,  if  obtained,  would  be
probative to the determination of defendant's actual innocence, and that
the  request is reasonable. The court shall deny or limit such a request
upon a finding that such a  request,  if  granted,  would  threaten  the
integrity  or chain of custody of property or the integrity of the proc-
esses or functions of a laboratory conducting DNA testing, pose  a  risk
of  harm,  intimidation, embarrassment, reprisal, or other substantially
negative consequences to any person, undermine the proper  functions  of
law  enforcement  including the confidentiality of informants, or on the
basis of any other factor identified by the court in  the  interests  of
justice  or public safety. The court shall further ensure that any prop-
erty produced pursuant to this paragraph  is  subject  to  a  protective
order, where appropriate. The court shall deny any request made pursuant
to this paragraph where:
  S  9.  Subdivision  10 of section 450.10 of the penal law, as added by
chapter 795 of the laws of 1984, is amended to read as follows:
  10. Where there has been a failure to comply with  the  provisions  of
this  section,  and  where the district attorney does not demonstrate to
the satisfaction of the court that  such  failure  has  not  caused  the
defendant  prejudice,  the  court  shall  instruct  the jury that it may
consider such failure  in  determining  the  weight  to  be  given  such
evidence  and may also impose any other [sanction] REMEDIES set forth in
[subdivision one of] section [240.70] 245.90 of the  criminal  procedure
law;  provided,  however,  that  unless  the defendant has convinced the
court that such failure has caused him undue prejudice, the court  shall
not  preclude  the  district attorney from introducing into evidence the
property, photographs, photocopies, or other reproductions of the  prop-
erty  or,  where  appropriate, testimony concerning its value and condi-
tion, where such evidence is otherwise properly authenticated and admis-
sible under the rules of evidence. Failure to comply  with  any  one  or
more  of  the provisions of this section shall not for that reason alone
be grounds for dismissal of the accusatory instrument.
  S 10. Subdivision 5 of section 480.10 of the penal law,  as  added  by
chapter 655 of the laws of 1990, is amended to read as follows:
  5.  In  addition  to  information required to be disclosed pursuant to
article two hundred [forty] FORTY-FIVE of the  criminal  procedure  law,
when  forfeiture  is  sought pursuant to this article, and following the
defendant's arraignment on the special forfeiture information, the court
shall order discovery of any information not otherwise  disclosed  which
is  material  and  reasonably necessary for preparation by the defendant
with respect to a forfeiture proceeding brought pursuant to  this  arti-
cle.  Such  material  shall  include  those  portions  of the grand jury
minutes and such other information which pertain solely to  the  special
forfeiture  information and shall not include information which pertains
to the criminal charges. Upon application of the prosecutor,  the  court
may  issue a protective order pursuant to section [240.40] 245.10 of the
criminal procedure law with respect to any information  required  to  be
disclosed pursuant to this subdivision.
  S  11. Section 460.80 of the penal law, as added by chapter 516 of the
laws of 1986, is amended to read as follows:

S. 4089                            15

S 460.80 Court ordered disclosure.
  Notwithstanding   the   provisions  of  article  two  hundred  [forty]
FORTY-FIVE of the criminal procedure  law,  when  forfeiture  is  sought
pursuant  to  section  460.30  of  this [chapter] ARTICLE, the court may
order discovery of any property not otherwise disclosed which is materi-
al and reasonably  necessary  for  preparation  by  the  defendant  with
respect to the forfeiture proceeding pursuant to such section. The court
may  issue  a protective order denying, limiting, conditioning, delaying
or regulating such discovery where a danger to the integrity of physical
evidence or a substantial risk of physical harm, intimidation,  economic
reprisal,  bribery  or  unjustified  annoyance  or  embarrassment to any
person or an adverse effect upon the legitimate needs  of  law  enforce-
ment,  including the protection of the confidentiality of informants, or
any other factor or set of  factors  outweighs  the  usefulness  of  the
discovery.
  S  12.  This  act  shall  take effect on the one hundred eightieth day
after it shall have become a law; provided that the amendments to subdi-
vision 9 of section 65.20 of the criminal procedure law made by  section
three  of this act shall not affect the repeal of such section and shall
be deemed repealed therewith.

co-Sponsors

2013-S4089A (ACTIVE) - Details

See Assembly Version of this Bill:: A3801
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §240.40, CP L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A8080
2015-2016: A2878
2017-2018: A3056

2013-S4089A (ACTIVE) - Summary

Relates to discovery.

2013-S4089A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S4089A

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to discovery

PURPOSE: To strengthen the ability of a court to order disclosure by
the prosecution of relevant property that is shown to be material to
preparation of the defense, whether or not the prosecution intends to
introduce the property at trial. Removing the latter restriction will
effectuate the transmission of information potentially favorable to
the defense, a constitutional duty often frustrated by inconsistent
interpretations of the obligation, non-compliance, or belated
disclosure.

SUMMARY OF PROVISIONS: Section 1 of the bill amends 240.40 of the
criminal procedure law to allow a court to order disclosure by the
prosecution of relevant property that is shown to be material to
preparation of the defense, whether or not the prosecution intends to
introduce the property at trial.

Section 2 is the effective date.

JUSTIFICATION: The ever-present reality of the criminal justice
process is that most of the information necessary to fair adjudication
is in the hands of the State. One purpose of the discovery law is to
disclose to the accused before trial inculpatory evidence making up

the State's case, in order to prevent unfair surprise. An equally
critical component of the discovery process is to provide the accused
with material in the hands of the State, with its superior
investigatory resources, that may aid in the preparation of a defense.
this duty to disclose what is loosely referred to as "exculpatory"
evidence had been a constitutional requirement since Brady v.
Maryland, 373 U.S. 83 (1963).

More accurately, the Brady rule encompasses all material "favorable"
to the accused. See People v. Fuentes, 12 MY3d 259, 263 (2009).
"Favorable" is a broad category, including any evidence "inconsistent
with a fundamental aspect of the People's case." People v. Garcia, 46
A23d 461, 262 (1st Dept. 2007).

The basic flaw in the Brady disclosure process is that it places the
duty to search, for evidentiary material favorable to the defense in
the hands of its adversary. Some prosecutors may take an unduly narrow
view of the Brady obligation, one that does not encompass impeachment
material or recognizes only obvious exculpatory evidence.  And even
the conscientious prosecutor may not understand how an item might fit
within a defense theory, or lead to evidence favorable to the defense.

The amendment to CPL 5240.40(1) (c) would strengthen the effectuation
of the Brady rule. The current version, with the "which the people
intend to introduce at trial" restriction, serves only the discovery
function of preventing surprise. It does little to aid the preparation
of the defense function. The part of the information in the
prosecution's possession that it selects to introduce at trial will
likely not be favorable to the defense. On the other hand, the
material that it chooses not to present to the trier of fact is the
category where information favorable to the defense is more likely to


be found. For example, the prosecution may feel that an "inconclusive"
scientific test proves nothing, but the' defense may interpret it as
supporting a reasonable doubt.

By excising the "intend to introduce at the trial" limitation, the
discovery law will effectuate access for the defense to potentially
favorable matter in a manner not dependent on what may be the
adversary's narrow, skeptical, or uninformed assessment of its
significance. As the Court of Appeals has emphasized: "We have often
repeated that the best judge of the value of evidence to a defendant's
case is 'the single-minded devotion of counsel for- the accused.'"
People v. DaGata, 96 NY2d 40, 45 (1995). DaGata ruled that,
"consistent with this State's philosophy of broad pretrial
disclosure," notes related to DNA testing should have been turned
over;, in the hands of the defense, they might have led to information
favorable to its case. Id.

The DaGata court recognized that the prosecution could obtain a
protective order under CPL § 240.50 against inappropriate disclosure.
Id. At 44. More important, the amendment to CPL 9240.40(1)(c) keeps
control of this area of discovery in the hands of the court, and
requires a showing of materiality and reasonableness. The court is
well-situated to make any reasonable accommodations to the prosecution
where problems of privilege or witness intimidation are shown to
exist.

The benefits of more thorough and timely disclosure of material
potentially favorable to defense of a case far outweigh any problems
in ironing out the details of this discovery. The steady cascade of
reversals and wrongful convictions owing to withheld Brady material is
a sign nor only of insufficient compliance but of the inefficiency of
an entirely "backward-looking" enforcement process, which offers a
cure for non-disclosure only when egregious errors are revealed in
post-conviction review. Giving the court the authority to order more
targeted disclosure in the pre-trial setting can only enhance the
fairness and reliability of the administration of justice.

LEGISLATIVE HISTORY: A9080 of 2011-12, 2013 Session Now bill in Senate

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This shall take effect immediately.

2013-S4089A (ACTIVE) - Bill Text download pdf

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

                                 4089--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              March 8, 2013
                               ___________

Introduced  by  Sens.  SAVINO, PARKER -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes --  commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee

AN ACT to amend the criminal procedure law, in relation to discovery

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

  Section  1.  Paragraph  (c)  of subdivision 1 of section 240.40 of the
criminal procedure law, as amended by chapter 19 of the laws of 2012, is
amended to read as follows:
  (c) may order discovery with respect to any other property[, which the
people intend to introduce at the trial,] upon a showing by the  defend-
ant  that  discovery  with  respect  to such property is material to the
preparation of his or her defense, and that the request  is  reasonable;
and
  S 2. This act shall take effect immediately.






 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09687-02-3

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Senate Bill S4089A

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

Bill Amendments

co-Sponsors

2013-S4089 - Details

2013-S4089 - Summary

2013-S4089 - Sponsor Memo

2013-S4089 - Bill Text download pdf

co-Sponsors

2013-S4089A (ACTIVE) - Details

2013-S4089A (ACTIVE) - Summary

2013-S4089A (ACTIVE) - Sponsor Memo

2013-S4089A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S4089A

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Sponsored By

Diane J. Savino

Archive: Last Bill Status - In Senate Committee Codes Committee

Bill Amendments

co-Sponsors

Kevin S. Parker

2013-S4089 - Details

2013-S4089 - Summary

2013-S4089 - Sponsor Memo

2013-S4089 - Bill Text download pdf

co-Sponsors

Kevin S. Parker

2013-S4089A (ACTIVE) - Details

2013-S4089A (ACTIVE) - Summary

2013-S4089A (ACTIVE) - Sponsor Memo

2013-S4089A (ACTIVE) - Bill Text download pdf

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