Bill S7592A-2011

Authorizes pilot program permitting use of electronic means for commencing actions in certain criminal and family court proceedings

Authorizes pilot program permitting use of electronic means for commencing actions in certain criminal and family court proceedings.

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Actions

  • Jun 21, 2012: SUBSTITUTED BY A10706
  • Jun 21, 2012: ORDERED TO THIRD READING CAL.1517
  • Jun 18, 2012: PRINT NUMBER 7592A
  • Jun 18, 2012: AMEND AND RECOMMIT TO RULES
  • Jun 5, 2012: REFERRED TO RULES

Votes

VOTE: COMMITTEE VOTE: - Rules - Jun 21, 2012
Ayes (23): Skelos, Alesi, Farley, Hannon, Johnson, Larkin, LaValle, Libous, Marcellino, Maziarz, Nozzolio, Saland, Seward, Sampson, Breslin, Dilan, Hassell-Thompson, Krueger, Montgomery, Parker, Perkins, Smith, Stewart-Cousins
Ayes W/R (1): Duane
Excused (1): Fuschillo

Memo

BILL NUMBER:S7592A               REVISED 06/19/12

TITLE OF BILL: An act to amend chapter 367 of the laws of 1999, amending the civil practice law and rules and the judiciary law relating to authorization of pilot programs permitting use of facsimile transmission or electronic means to commence an action or special proceeding, in relation to authorization of pilot programs permitting use of electronic means in certain courts; and to amend chapter 416 of the laws of 2009, amending the civil practice law and rules relating to service of papers by electronic means, in relation to development of a program relating to the use of electronic means for the commencement of certain actions; and providing for the repeal of certain provisions of chapter 367 of the laws of 1999 upon expiration thereof

This measure is being introduced at the request of the Chief Judge of the State and the Chief Administrative Judge.

In its 2011 session, the Legislature directed that the Chief Administrative Judge establish two committees to consider whether the State's program for the electronic filing of papers with the courts and between litigating parties ("e-filing") should be extended into criminal courts and the Family Court, respectively. See L. 2011, c. 543. The Chief Administrative Judge thereafter established these committees, which, in accordance with the statutory direction, were comprised ofrepresentatives of bench, bar and others who would be affected by such extensions, including prosecutors, criminal defense practitioners, local government agencies, County Clerks and specialty bar associations across the State. Id.,§5. In the reports recently filed by these committees(1), it is recommended that the Legislature slowly begin to phase-in e-filing in select criminal and Family Court cases in a small number of venues. This measure would give effect to these recommendations, which include:

> Establishment by the Chief Administrative Judge, with the approval of the Administrative Board of the Courts, of a consensual e-filing program in criminal parts in Supreme Court and County Court for (i) the filing of accusatory instruments in those courts, and (ii) the filing and service of papers in criminal actions and proceedings therein. Also, authorization to convert participation in this e-filing progranl from consensual to mandatory in up to six counties (with implementation in any of these counties to be conditioned upon prior approval of the local District Attorney, each criminal defense office providing representation to 25% or more of the persons represented by public defense providers in an affected county (through the head of a legal aid society, public defender's office or local bar association, as appropriate) and the local County Clerk).

> Establishment by the Chief Administrative Judge, with the approval of the Administrative Board of the Courts, of a consensual e- filing program in Family Court for (i) the origination of proceedings in such Court, and (ii) the filing and service of papers in pending proceedings therein. Also, authorization to convert participation in this e-filing program from consensual to mandatory in up to six

counties for purposes of the filing of article 3 (juvenile delinquency) petitions with Family Court by a presentment agency, the filing of article 10 (abuse/neglect) petitions with such Court by a child protective agency, and the exchange of papers in these proceedings (with implementation in any of these counties to be conditioned upon prior approval of the local authorized presentment agency, the local child protective agency and the local Family Court Bar (represented by the head of each legal services organization representing parents and/or children, the head of each public defender organization and the president of the local bar, as appropriate).

This measure also would make two minor adjustments to the existing e-filing program in Supreme Court civil palts: (1) adding Erie and Suffolk Counties to the current list of eight counties outside New York City in which the Chief Administrative Judge may authorize a program of mandatory e-filing in Supreme Court civil parts; and (2) eliminating certain restrictions on use of e-filing in Supreme Coult civil proceedings in New York City (so that mandatory e-filing may be extended there on the same terms as it now may be extended in the authorized counties outside the City).

I. Overview

New York's experiment with e-filing began in civil parts of Supreme Court in 1999 in a very limited pilot"(2). Over the ensuing years, as judges, attorneys, litigants and others having roles in the civil justice system have developed experience and comfort with e-filing, as the technology needed to e-file has improved markedly (and grown exponentially in its availability), and as efiling has become routine practice in the Federal Court system, the State has gradually expanded its e-filing pilot. This expansion has always been very slow and deliberate: from a modest begimling where e-filing was sanctioned in only a few classes of cases in Supreme Court in a small number of venues, and only where the affected parties consented to its use, new classes of actions and venues in which e-filing may be used have gradually been added, and the e-filing program has expanded into Surrogate's Court, the Court of Claims and the New York City Civil Court. Also, the Chief Administrative Judge has been permitted to make use of e-filing mandatory in some actions in some venues. As of this time, in the spring of 2012, consensual e-filing may be authorized by court rule in all categories of cases in Supreme Court (it has, in fact, been authorized in 15 counties, primarily for commercial, tort and tax certiorari cases); in 11 counties in Surrogate's Court; in the 12 county Albany District of the Court of Claims; and in one case type in the New York City Civil Court. At the smne time, mandatory e-filing may be established in Supreme Court in eight counties and in New York City, in a broad array of cases.

This expansion has clearly demonstrated that use of e-filing in the courts can have substantial benefits - including lower litigation costs and reduced access-to-justice barriers especially for solo practitioners, small firms and rural practice. These benefits have been welldocumented in periodic reports filed by the Judiciary with the Legislature over the past decade. As now acknowledged by the advisory committees established this year

by the Chief Administrative Judge, these and other benefits promised by e-filing can likewise be found where e-filing is extended to practice in criminal courts and the Family Court, and, accordingly, these committees have urged that the Legislature act promptly to institute pilot e-filing programs in those courts.

In making their recommendations, our advisory committees have recognized that, just as it was wise to proceed cautiously in rolling out e-filing in the State's civil courts, it makes the greatest sense to do the same with an e-filing rollout in criminal courts and the Family Court. However attractive the benefits e-filing may promise, there are simply too many important rights at stake in proceedings in these courts to start an aggressive e-filing program in them right away. For this reason, our advisory committees have proposed that, with very limited exception, the Legislature begin with strictly voluntary e-filing for Fanlily Court and criminal courts, with consent of the parties required in each case. Moreover, in the instance of criminal court, the criminal advisory committee proposes that e-filing be authorized only for commencement of proceedings in superior courts(3), and the exchange of papers between parties and between parties and the court in such courts. In this regard, the advisory committee believes that superior courts generally are ready, technically and administratively, for this step, but that local criminal coulis are not yet prepared and cannot become prepared in a cost-effective manner at this time.

Also in keeping with the historical emphasis upon caution in rolling out e-filing, the advisory committees recommend that an e-filing rollout in Family Court and in the criminal courts limit the breadth of its reach. Thus, while the Family Court advisory committee recommends that e-filing in Family Court be authorized generally, it urges that its use be consensual in most venues. In no more than six pilot counties should the Chief Administrative Judge enjoy authority to eliminate the consent requirement(4). Where he or she would act on this authority, it must be with the advance approval of appropriate justice stakeholders in the affected counties (i.e., local presentment and child protective agencies, and the local Family Court Bar) and following consultation with a broad spectrum of other interested parties, including the Family Court advisory committee. Further, he or she may only so authorize mandatory e-filing in connection with origination of Family Court Act article three and article ten proceedings and subsequent exchange of papers in those proceedings. Likewise on the criminal side, the criminal advisory committee has recommended that e-filing now be limited to the superior courts; and while, as with the Family Court advisory committee, the criminal court advisory committee believes that a broad consensual progran1 in those courts may be in order, it similarly recommends that the consent requirement in criminal court be eliminated in no more than six pilot counties and then only where the local District Attorney, the local criminal defense bar and the County Clerk give advance permission, and only after consultation with a broad spectrum of other interested parties, including the Criminal advisory committee. Moreover, both advisory committees recommend that, where mandatory e-filing is sanctioned in Family Court and superior criminal courts, all the protections now afforded to pro se litigants and counsel who, for want of computer equipment

or skill with that equipment, are unable to proceed by e-filing civil cases in Supreme Court should obtain (except that pro se litigants should not proceed by e-filing without court permission, whereas, at present, in Supreme Court civil matters subject to mandatory e-filing, such litigants must e-file unless they affirmatively opt out). Finally, the committees recommend that the e-filing programs promoted by this measure be subject to a three-year sunset, i.e., by September 1, 2015.

Paramount, in the view of the advisory committees, is recognition that Family Court and criminal court proceedings require special layers of protection against inappropriate disclosure. Unlike most civil cases, papers and records in Family Court cases are categorically protected against routine disclosure (see Family Court Act § 166), and papers filed in both pending and completed criminal cases can cany particular sensitivity - whether or not formally sealed by the court. Accordingly, the advisory committees recommend that, where e-filing is expanded into Family Court and criminal court, there be no right of public access on-line to Family Court or criminal court papers that are e-filed.

Finally, the advisory committees recommend that they continue to function and that, as it did with the gradual phase-in of civil e-filing, the Legislature require a three-year report to tlle Legislature on progress achieved in Family Court and criminal court e-filing and the sunset of its authorization after three years. The advisory committees recognize that introduction of e-filing in different courts and case types requires particular care and a period of study so that parties, counsel, stakeholders and the political branches can ensure the protection of rights and the efficient implementation of this next step in the modernization of the New York State Judiciary.

II. Section-by-Section Summary

Section 1 would amend chapter 367 of the Laws of 1999, the original e-filing statute, hy adding new sections 6-a (to govern snperior criminal court e-filing), 6-b (to govern Family Court e-filing) and 6-c (containing general provisions). Section 6-a would: (a) authorize the e-filing of superior court accusatory instruments that commence criminal acti~ns, and of the papers and docnments exchanged in those actions; (b) direct that such program be strictly voluntary upon consent of all parties, except where the Chief Administrative Judge eliminates the requirement of consent (which he or she may do in up to six counties so long as he or she secures prior consent of the local District Attorney, criminal defense bar and County Clerk and consults extensively with other interested members of the community along with the Criminal advisory committee); (c) provide that where e-filing is thereby made mandatory, parties will enjoy the same rightto opt out of Participation in e-filing for want of technical resoUl·ces or acumen as they would enjoy in a mandatorily e-filed civil case in Supreme Court and pro se litigants will automatically be excluded from such participation unless the court permits otherwise; (d) define e-filing by the same terms as CPLR 2103(f) provides for civil cases; (e) protect the confidentiality of e-filed docnments, expressly applying all laws governing the sealing and COnfidentiality of court records in

criminal proceedings, and expressly providing that no e-filed paper or document in a criminal proceeding can be available for online public inspection. Section 6-b would: (a) authorize the efiling of Family Court proceedings; (b) direct that such program be strictly voluntary upon consent of all parties, except where the Chief Administrative Judge eliminates the requirement of consent (which he or she may do in up to six counties and only for Family Court Act article 3 (juvenile delinquency) and article 10 (abuse and neglect) proceedings so long as he or she secures prior consent of the local presentment and child protective agencies and the local Family COU lt Bar and consults extensively with other interested members of the conmmnity along with the Family Court advisory committee); (c) provide that where e-filing is thereby made mandatory, parties will enjoy the same right to opt out of participation in e- filing for want of technical resources or knowledge of computer operation as they would enjoy in a mandatorily e-filed civil case in Supreme Court and pro se litigants will automatically be excluded from such participation unless the court permits otherwise; (d) define e-filing by the same terms as CPLR 2103(f) provides for civil cases; (e) protect the confidentiality of e-filed documents, expressly applying all laws governing the sealing and confidentiality of court records in Family Court proceedings, and expressly providing that no e-filed paper or document in a Family Court proceeding can be available for online public inspection. Section 6-c would define the "criminal defense bar" for purposes of establishing the proper body to give consent to e-fiIing in criminal cases in the superior court of a county. Also it would ban the imposition of a fee for access to efiled documents and papers; and require the courts to install sufficient computer kiosks in courthouses to permit parties and their counsel to have access to filed documents and papers.

Section 2 would make a technical amendment to chapter 416 of the Laws of 2009, as amended, to bring New York City's existing palticipation in the civil e-filing system under the same list of included and excluded categories of cases applicable to other counties subject to mandatory e-filing under CUlTent law (i.e. Livingston, Monroe, Rockland, Tompkins, Allegany, Essex, Onondaga and Westchester). This section also would add Erie and Suffolk Counties to that list of enumerated jUl"isdictions.

Section 3 would make a teclmical amendment to chapter 416 of the Laws of 2009, as amended, to continue the two e-filing advisory committees established for criminal courts and Family Court, respectively, and to require that the Chief Administrative Judge submit a repolt on e-filing in criminal courts and Family Court to the Legislature, Governor and Chief Judge not later than January 1,2015.(5)

Section 4 would malce this act effective immediately, except that sections 6-a, 6-b and 6-c as added by section 2 of this act, would expire on September 1, 2015.(6)

This measure, which would have no fiscal impact on the State, would continue the State's progress toward more streamlined and cost-effective court operations, which is especially vital to the effective operation of the justice system given continued resource restraints at al1levels of government. It would do this while continuing the strict protection of litigant rights, confidentiality

and community support that have been hallmarks of the Judiciary's gradual phasein of civil e-filing. Perhaps most importantly, by speeding judicial intervention in time-critical Family Court proceedings, this measure could help protect the most vulnerable and literally save lives.

2012 LEGISLATIVE HISTORY:

Senate 7592-A (Saland) (Rules) Assembly 10706 (Rules-Weinstein) (Codes)

FOOTNOTES:

(1) Copies of these reports may be viewed on-line at the Unified Court System's website: http://www.nycourts.gov (Under "Publications").

(2) See L. 1999, c. 367 (authorizing consensual e-filing programs in commercial and tax certiorari cases in Supreme Court in Monroe, Westchester, New York and Suffolk Counties, and in the Court of Claims).

(3) The superior courts are the Supreme Court and the County Court. Under this measure, e-filing would not be permitted in criminal proceedings in the local criminal courts of the State (i.e., the NYC Criminal Court, the District Courts, the City Courts and the Town and Village Justice Courts).

(4) Early experience with e-filing in New York, when bench and bar were generally unfamiliar with it, demonstrated that, where it is voluntary, relatively few practitioners choose to make use of it. Only where e-filing has been made mandatory have enough people made use of it -- thereby exposing them to its benefits and encouraging their future reliance upon it, as well as giving the State a fair sense of its pros and cons.

(5) Concerning on-line public inspection of papers and documents in criminal cases, the measure carves a small exception. It permits the Chief Administrative Judge to post such papers and documents on the court system's general website (which is different from the NYSCEF website used bye-filers) where doing so would serve a public interest. This is to enable the Chief Administrative Judge to continue an existing practice wherein, in recognition of a high level of public interest, certain unsealed papers and documents in a few celebrated cases are posted on-line for the convenience of the public and the media.

(6) This is the same date as is now fixed for the expiration of authorization for the ongoing program of mandatory efiling in civil parts of Supreme Court.


Text

STATE OF NEW YORK ________________________________________________________________________ 7592--A IN SENATE June 5, 2012 ___________
Introduced by Sen. SALAND -- (at request of the Office of Court Adminis- tration) -- read twice and ordered printed, and when printed to be committed to the Committee on Rules -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend chapter 367 of the laws of 1999, amending the civil practice law and rules and the judiciary law relating to authorization of pilot programs permitting use of facsimile transmission or elec- tronic means to commence an action or special proceeding, in relation to authorization of pilot programs permitting use of electronic means in certain courts; and to amend chapter 416 of the laws of 2009, amending the civil practice law and rules relating to service of papers by electronic means, in relation to development of a program relating to the use of electronic means for the commencement of certain actions; and providing for the repeal of certain provisions of chapter 367 of the laws of 1999 upon expiration thereof THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Chapter 367 of the laws of 1999, amending the civil prac- tice law and rules and the judiciary law relating to authorization of pilot programs permitting use of facsimile transmission or electronic means to commence an action or special proceeding, is amended by adding three new sections 6-a, 6-b and 6-c to read as follows: S 6-A. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE CHIEF ADMINISTRATOR OF THE COURTS, WITH THE APPROVAL OF THE ADMINISTRATIVE BOARD OF THE COURTS, MAY PROMULGATE RULES AUTHORIZING A PROGRAM IN THE USE OF ELECTRONIC MEANS IN THE SUPREME COURT AND IN THE COUNTY COURT FOR: (1) THE FILING WITH A COURT OF AN ACCUSATORY INSTRUMENT FOR THE PURPOSE OF ACQUIRING JURISDICTION IN A SUPERIOR COURT, AS PROVIDED BY ARTICLES 195 AND 200 OF THE CRIMINAL PROCEDURE LAW, AND (2) THE FILING AND SERVICE OF PAPERS IN PENDING CRIMINAL ACTIONS AND PROCEEDINGS. (B) (1) EXCEPT AS OTHERWISE PROVIDED IN THIS SUBDIVISION, PARTIC- IPATION IN THIS PROGRAM SHALL BE STRICTLY VOLUNTARY AND WILL TAKE PLACE ONLY UPON CONSENT OF ALL PARTIES IN THE CRIMINAL ACTION OR PROCEEDING;
EXCEPT THAT A PARTY'S FAILURE TO CONSENT TO PARTICIPATION SHALL NOT BAR ANY OTHER PARTY TO THE ACTION FROM FILING AND SERVING PAPERS BY ELEC- TRONIC MEANS UPON THE COURT OR ANY OTHER PARTY TO SUCH ACTION OR PROCEEDING WHO HAS CONSENTED TO PARTICIPATION. FILING AN ACCUSATORY INSTRUMENT BY ELECTRONIC MEANS WITH THE COURT FOR THE PURPOSE OF CONFER- RING JURISDICTION OVER A CRIMINAL ACTION UPON SUCH COURT SHALL NOT REQUIRE THE CONSENT OF ANY OTHER PARTY; PROVIDED, HOWEVER, THAT UPON SUCH FILING ANY PERSON WHO IS THE SUBJECT OF SUCH ACCUSATORY INSTRUMENT AND ANY ATTORNEY FOR SUCH PERSON SHALL BE PERMITTED TO IMMEDIATELY REVIEW AND OBTAIN COPIES OF SUCH INSTRUMENT IF SUCH PERSON OR ATTORNEY WOULD HAVE BEEN AUTHORIZED BY LAW TO REVIEW OR COPY SUCH INSTRUMENT IF IT HAD BEEN FILED WITH THE COURT IN PAPER FORM. (2) THE CHIEF ADMINISTRATOR MAY ELIMINATE THE REQUIREMENT OF CONSENT TO PARTICIPATION IN THIS PROGRAM IN SUPREME AND COUNTY COURTS OF NOT MORE THAN SIX COUNTIES PROVIDED HE OR SHE MAY NOT ELIMINATE SUCH REQUIREMENT FOR A COURT WITHOUT THE CONSENT OF THE DISTRICT ATTORNEY, THE CONSENT OF THE CRIMINAL DEFENSE BAR AS DEFINED IN SECTION SIX-C OF THIS ACT AND THE CONSENT OF THE COUNTY CLERK OF THE COUNTY IN WHICH SUCH COURT PRESIDES. NOTWITHSTANDING THE FOREGOING, THE CHIEF ADMINISTRATOR MAY NOT ELIMINATE THE REQUIREMENT OF CONSENT TO PARTICIPATION IN A COUN- TY HEREUNDER UNTIL HE OR SHE SHALL HAVE PROVIDED ALL PERSONS OR ORGAN- IZATIONS, OR THEIR REPRESENTATIVE OR REPRESENTATIVES, WHO REGULARLY APPEAR IN CRIMINAL ACTIONS OR PROCEEDINGS IN THE SUPERIOR COURT OF SUCH COUNTY WITH REASONABLE NOTICE AND AN OPPORTUNITY TO SUBMIT COMMENTS WITH RESPECT THERETO AND SHALL HAVE GIVEN DUE CONSIDERATION TO ALL SUCH COMMENTS, NOR UNTIL HE OR SHE SHALL HAVE CONSULTED WITH THE MEMBERS OF THE ADVISORY COMMITTEE CONTINUED PURSUANT TO SUBDIVISION (C) OF SECTION 6 OF CHAPTER 416 OF THE LAWS OF 2009, AS AMENDED. (C) WHERE THE CHIEF ADMINISTRATOR ELIMINATES THE REQUIREMENT OF CONSENT AS PROVIDED IN PARAGRAPH TWO OF SUBDIVISION (B) OF THIS SECTION, HE OR SHE SHALL AFFORD COUNSEL THE OPPORTUNITY TO OPT OUT OF THE PROGRAM, VIA PRESENTATION OF A PRESCRIBED FORM TO BE FILED WITH THE COURT WHERE THE CRIMINAL ACTION IS PENDING. SAID FORM, WHICH SHALL NOT BE PART OF THE CASE RECORD, SHALL PERMIT AN ATTORNEY TO OPT OUT OF PARTICIPATION IN THE PROGRAM UNDER ANY OF THE FOLLOWING CIRCUMSTANCES, IN WHICH EVENT, HE OR SHE WILL NOT BE COMPELLED TO PARTICIPATE: (1) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS APPROPRIATE COMPUTER HARDWARE AND/OR CONNECTION TO THE INTERNET AND/OR SCANNER OR OTHER DEVICE BY WHICH DOCUMENTS MAY BE CONVERTED TO AN ELEC- TRONIC FORMAT; OR (2) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS THE REQUISITE KNOWLEDGE IN THE OPERATION OF SUCH COMPUTERS AND/OR SCAN- NERS NECESSARY TO PARTICIPATE. FOR THE PURPOSES OF THIS PARAGRAPH, THE KNOWLEDGE OF ANY EMPLOYEE OF AN ATTORNEY, OR ANY EMPLOYEE OF THE ATTOR- NEY'S LAW FIRM, OFFICE OR BUSINESS WHO IS SUBJECT TO SUCH ATTORNEY'S DIRECTION, SHALL BE IMPUTED TO THE ATTORNEY. NOTWITHSTANDING THE FOREGOING: (I) WHERE A PARTY IS NOT REPRESENTED BY COUNSEL, HE OR SHE MAY NOT PARTICIPATE IN THE PROGRAM EXCEPT UPON HIS OR HER REQUEST AND PERMISSION OF THE COURT; (II) A PARTY NOT REPRESENTED BY COUNSEL WHO HAS OPTED IN SHALL BE AFFORDED THE OPPORTUNITY TO OPT OUT OF THE PROGRAM FOR ANY REASON VIA PRESENTATION OF A PRESCRIBED FORM TO BE FILED WITH THE CLERK OF THE COURT WHERE THE PROCEEDING IS PENDING; AND (III) A COURT MAY EXEMPT ANY ATTORNEY FROM BEING REQUIRED TO PARTICIPATE IN THE PROGRAM UPON APPLICATION FOR SUCH EXEMPTION, SHOWING GOOD CAUSE THEREFOR.
(D) FOR PURPOSES OF THIS SECTION, "ELECTRONIC MEANS" SHALL BE AS DEFINED IN SUBDIVISION (F) OF RULE 2103 OF THE CIVIL PRACTICE LAW AND RULES. (E) (1) NOTHING IN THIS SECTION SHALL AFFECT OR CHANGE ANY EXISTING LAWS GOVERNING THE SEALING AND CONFIDENTIALITY OF COURT RECORDS IN CRIM- INAL PROCEEDINGS OR ACCESS TO COURT RECORDS BY THE PARTIES TO SUCH PROCEEDINGS, NOR SHALL THIS SECTION BE CONSTRUED TO COMPEL A PARTY TO FILE A SEALED DOCUMENT BY ELECTRONIC MEANS. (2) NOTWITHSTANDING ANY OTHER PROVISION OF THIS CHAPTER, NO PAPER OR DOCUMENT THAT IS FILED BY ELECTRONIC MEANS IN A CRIMINAL PROCEEDING IN SUPREME COURT OR COUNTY COURT SHALL BE AVAILABLE FOR PUBLIC INSPECTION ON-LINE. SUBJECT TO THE PROVISIONS OF EXISTING LAWS GOVERNING THE SEAL- ING AND CONFIDENTIALITY OF COURT RECORDS, NOTHING HEREIN SHALL PREVENT THE UNIFIED COURT SYSTEM FROM SHARING STATISTICAL INFORMATION THAT DOES NOT INCLUDE ANY PAPERS OR DOCUMENTS FILED WITH THE ACTION; AND, PROVIDED FURTHER, THAT THIS PARAGRAPH SHALL NOT PROHIBIT THE CHIEF ADMINISTRATOR, IN THE EXERCISE OF HIS OR HER DISCRETION, FROM POSTING PAPERS OR DOCU- MENTS THAT HAVE NOT BEEN SEALED PURSUANT TO LAW ON A PUBLIC WEBSITE MAINTAINED BY THE UNIFIED COURT SYSTEM WHERE: (I) THE WEBSITE IS NOT THE WEBSITE ESTABLISHED BY THE RULES PROMULGATED PURSUANT TO SUBDIVISION (A) OF THIS SECTION, AND (II) TO DO SO WOULD BE IN THE PUBLIC INTEREST. FOR PURPOSES OF THIS SUBDIVISION, THE CHIEF ADMINISTRATOR, IN DETERMINING WHETHER POSTING PAPERS OR DOCUMENTS ON A PUBLIC WEBSITE IS IN THE PUBLIC INTEREST, SHALL, AT A MINIMUM, TAKE INTO ACCOUNT FOR EACH POSTING THE FOLLOWING FACTORS: (I) THE TYPE OF CASE INVOLVED; (II) WHETHER SUCH POSTING WOULD CAUSE HARM TO ANY PERSON, INCLUDING ESPECIALLY A MINOR OR CRIME VICTIM; (III) WHETHER SUCH POSTING WOULD INCLUDE LEWD OR SCANDAL- OUS MATTERS; AND (IV) THE POSSIBILITY THAT SUCH PAPERS OR DOCUMENTS MAY ULTIMATELY BE SEALED. (3) NOTHING IN THIS SECTION SHALL AFFECT OR CHANGE EXISTING LAWS GOVERNING SERVICE OF PROCESS, NOR SHALL THIS SECTION BE CONSTRUED TO ABROGATE EXISTING PERSONAL SERVICE REQUIREMENTS AS SET FORTH IN THE CRIMINAL PROCEDURE LAW. S 6-B. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE CHIEF ADMINISTRATOR OF THE COURTS, WITH THE APPROVAL OF THE ADMINISTRATIVE BOARD OF THE COURTS, MAY PROMULGATE RULES AUTHORIZING A PROGRAM IN THE USE OF ELECTRONIC MEANS IN THE FAMILY COURT FOR: (1) THE ORIGINATION OF PROCEEDINGS IN SUCH COURT, AND (2) THE FILING AND SERVICE OF PAPERS IN PENDING PROCEEDINGS. (B) (1) EXCEPT AS OTHERWISE PROVIDED IN THIS SUBDIVISION, PARTIC- IPATION IN THIS PROGRAM SHALL BE STRICTLY VOLUNTARY AND WILL TAKE PLACE ONLY UPON CONSENT OF ALL PARTIES IN THE PROCEEDING; EXCEPT THAT FAILURE OF A PARTY OR OTHER PERSON WHO IS ENTITLED TO NOTICE OF THE PROCEEDINGS TO CONSENT TO PARTICIPATION SHALL NOT BAR ANY OTHER PARTY FROM FILING AND SERVING PAPERS BY ELECTRONIC MEANS UPON THE COURT OR ANY OTHER PARTY OR PERSON ENTITLED TO RECEIVE NOTICE OF SUCH PROCEEDING WHO HAS CONSENTED TO PARTICIPATION. FILING A PETITION WITH THE COURT BY ELEC- TRONIC MEANS FOR THE PURPOSE OF ORIGINATING A PROCEEDING SHALL NOT REQUIRE THE CONSENT OF ANY OTHER PARTY; PROVIDED, HOWEVER, THAT, UPON SUCH FILING, A PARTY TO SUCH PROCEEDING AND ANY ATTORNEY FOR SUCH PERSON SHALL BE PERMITTED TO IMMEDIATELY REVIEW AND OBTAIN COPIES OF SUCH DOCU- MENTS AND PAPERS IF SUCH PERSON OR ATTORNEY WOULD HAVE BEEN AUTHORIZED BY LAW TO REVIEW OR OBTAIN COPIES OF SUCH DOCUMENTS AND PAPERS IF THEY HAD BEEN FILED WITH THE COURT IN PAPER FORM. (2) IN THE RULES PROMULGATED PURSUANT TO SUBDIVISION (A) OF THIS SECTION, THE CHIEF ADMINISTRATOR MAY ELIMINATE THE REQUIREMENT OF
CONSENT TO PARTICIPATION IN THIS PROGRAM IN FAMILY COURTS OF NOT MORE THAN SIX COUNTIES FOR: (I) THE FILING WITH THE COURT OF A PETITION ORIGINATING A JUVENILE DELINQUENCY PROCEEDING UNDER ARTICLE 3 OF THE FAMILY COURT ACT BY A PRESENTMENT AGENCY AS DEFINED IN SECTION 301.2 OF SUCH ACT; (II) THE FILING WITH THE COURT OF A PETITION ORIGINATING A PROCEEDING TO DETERMINE ABUSE OR NEGLECT PURSUANT TO ARTICLE 10 OF THE FAMILY COURT ACT BY A CHILD PROTECTIVE AGENCY, AS DEFINED IN SECTION 1012 OF SUCH ACT; AND (III) THE FILING AND SERVICE OF PAPERS IN PROCEEDINGS SPECIFIED IN SUBPARAGRAPHS (I) AND (II) OF THIS PARAGRAPH WHERE, PURSUANT TO SUCH SUBPARAGRAPHS, SUCH PROCEEDINGS WERE ORIGINATED IN THE COURT BY ELEC- TRONIC FILING. NOTWITHSTANDING THE FOREGOING, THE CHIEF ADMINISTRATOR MAY NOT ELIMI- NATE THE REQUIREMENT OF CONSENT TO PARTICIPATION WITHOUT THE CONSENT OF EACH AUTHORIZED PRESENTMENT AGENCY, CHILD PROTECTIVE AGENCY OF AN AFFECTED COUNTY, THE FAMILY COURT BAR PROVIDING REPRESENTATION TO PARENTS, AND THE FAMILY COURT BAR PROVIDING REPRESENTATION TO CHILDREN (AS REPRESENTED BY THE HEAD OF EACH LEGAL SERVICES ORGANIZATION REPRES- ENTING PARENTS AND/OR CHILDREN, THE HEAD OF EACH PUBLIC DEFENDER ORGAN- IZATION, AND PRESIDENT OF THE LOCAL BAR ASSOCIATION AS APPLICABLE) IN ANY COUNTY IN WHICH SUCH ELIMINATION SHALL APPLY. NOTWITHSTANDING THE FOREGOING, THE CHIEF ADMINISTRATOR MAY NOT ELIMI- NATE THE REQUIREMENT OF CONSENT TO PARTICIPATION IN A COUNTY HEREUNDER UNTIL HE OR SHE SHALL HAVE PROVIDED ALL PERSONS OR ORGANIZATIONS, OR THEIR REPRESENTATIVE OR REPRESENTATIVES, WHO REGULARLY APPEAR IN PROCEEDINGS IN THE FAMILY COURT OF SUCH COUNTY, IN WHICH PROCEEDINGS THE REQUIREMENT OF CONSENT IS TO BE ELIMINATED, WITH REASONABLE NOTICE AND AN OPPORTUNITY TO SUBMIT COMMENTS WITH RESPECT THERETO AND SHALL HAVE GIVEN DUE CONSIDERATION TO ALL SUCH COMMENTS, NOR UNTIL HE OR SHE SHALL HAVE CONSULTED WITH THE MEMBERS OF THE ADVISORY COMMITTEE CONTINUED PURSUANT TO SUBDIVISION (D) OF SECTION 6 OF CHAPTER 416 OF THE LAWS OF 2009, AS AMENDED. (C) WHERE THE CHIEF ADMINISTRATOR ELIMINATES THE REQUIREMENT OF CONSENT AS PROVIDED IN PARAGRAPH TWO OF SUBDIVISION (B) OF THIS SECTION, HE OR SHE SHALL AFFORD COUNSEL THE OPPORTUNITY TO OPT OUT OF THE PROGRAM, VIA PRESENTATION OF A PRESCRIBED FORM TO BE FILED WITH THE CLERK OF THE COURT WHERE THE PROCEEDING IS PENDING. SAID FORM, WHICH SHALL NOT BE PART OF THE CASE RECORD, SHALL PERMIT AN ATTORNEY TO OPT OUT OF PARTICIPATION IN THE PROGRAM UNDER ANY OF THE FOLLOWING CIRCUM- STANCES, IN WHICH EVENT, HE OR SHE WILL NOT BE COMPELLED TO PARTICIPATE: (1) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS APPROPRIATE COMPUTER HARDWARE AND/OR CONNECTION TO THE INTERNET AND/OR SCANNER OR OTHER DEVICE BY WHICH DOCUMENTS MAY BE CONVERTED TO AN ELEC- TRONIC FORMAT; OR (2) WHERE THE ATTORNEY CERTIFIES IN GOOD FAITH THAT HE OR SHE LACKS THE REQUISITE KNOWLEDGE IN THE OPERATION OF SUCH COMPUTERS AND/OR SCAN- NERS NECESSARY TO PARTICIPATE. FOR THE PURPOSES OF THIS PARAGRAPH, THE KNOWLEDGE OF ANY EMPLOYEE OF AN ATTORNEY, OR ANY EMPLOYEE OF THE ATTOR- NEY'S LAW FIRM, OFFICE OR BUSINESS WHO IS SUBJECT TO SUCH ATTORNEY'S DIRECTION, SHALL BE IMPUTED TO THE ATTORNEY. NOTWITHSTANDING THE FOREGOING: (I) WHERE A PARTY OR A PERSON ENTITLED TO NOTICE OF THE PROCEEDINGS IS NOT REPRESENTED BY COUNSEL, HE OR SHE MAY NOT PARTICIPATE IN THE PROGRAM EXCEPT UPON HIS OR HER REQUEST AND PERMISSION OF THE COURT; (II) A PARTY WHO IS NOT REPRESENTED BY COUNSEL THAT HAS OPTED IN, SHALL BE AFFORDED THE OPPORTUNITY TO OPT OUT OF THE
PROGRAM FOR ANY REASON VIA PRESENTATION OF A PRESCRIBED FORM TO BE FILED WITH THE CLERK OF THE COURT WHERE THE PROCEEDING IS PENDING; AND (III) A COURT MAY EXEMPT ANY ATTORNEY FROM BEING REQUIRED TO PARTICIPATE IN THE PROGRAM UPON APPLICATION FOR SUCH EXEMPTION, SHOWING GOOD CAUSE THERE- FOR. (D) FOR PURPOSES OF THIS SECTION, "ELECTRONIC MEANS" SHALL BE AS DEFINED IN SUBDIVISION (F) OF RULE 2103 OF THE CIVIL PRACTICE LAW AND RULES. (E) NOTWITHSTANDING ANY PROVISION OF THIS CHAPTER, NO PAPER OR DOCU- MENT THAT IS FILED BY ELECTRONIC MEANS IN A PROCEEDING IN FAMILY COURT SHALL BE AVAILABLE FOR PUBLIC INSPECTION ON-LINE. SUBJECT TO THE PROVISIONS OF EXISTING LAWS GOVERNING THE SEALING AND CONFIDENTIALITY OF COURT RECORDS, NOTHING HEREIN SHALL PREVENT THE UNIFIED COURT SYSTEM FROM SHARING STATISTICAL INFORMATION THAT DOES NOT INCLUDE ANY PAPERS OR DOCUMENTS FILED WITH THE ACTION. (F) NOTHING IN THIS SECTION SHALL AFFECT OR CHANGE ANY EXISTING LAWS GOVERNING THE SEALING AND CONFIDENTIALITY OF COURT RECORDS IN FAMILY COURT PROCEEDINGS OR ACCESS TO COURT RECORDS BY THE PARTIES TO SUCH PROCEEDINGS, NOR SHALL THIS SECTION BE CONSTRUED TO COMPEL A PARTY TO FILE A SEALED DOCUMENT BY ELECTRONIC MEANS. (G) NOTHING IN THIS SECTION SHALL AFFECT OR CHANGE EXISTING LAWS GOVERNING SERVICE OF PROCESS, NOR SHALL THIS SECTION BE CONSTRUED TO ABROGATE EXISTING PERSONAL SERVICE REQUIREMENTS AS SET FORTH IN THE FAMILY COURT ACT AND THE CIVIL PRACTICE LAW AND RULES. S 6-C. (A) FOR PURPOSES OF SECTION SIX-A OF THIS ACT, "CONSENT OF THE CRIMINAL DEFENSE BAR" SHALL MEAN THAT CONSENT HAS BEEN OBTAINED FROM ALL PROVIDER OFFICES AND/OR ORGANIZATIONS IN THE COUNTY THAT REPRESENTED TWENTY-FIVE PERCENT OR MORE OF THE PERSONS REPRESENTED BY PUBLIC DEFENSE PROVIDERS PURSUANT TO SECTION 722 OF THE COUNTY LAW, AS SHOWN IN THE MOST RECENT ANNUAL REPORTS FILED PURSUANT TO SUBDIVISION ONE OF SECTION 722-F OF THE COUNTY LAW. SUCH CONSENT, WHEN GIVEN, MUST BE EXPRESSED IN A WRITTEN DOCUMENT THAT IS PROVIDED BY A PERSON WHO IS AUTHORIZED TO CONSENT ON BEHALF OF THE RELEVANT PUBLIC DEFENDER ORGANIZATION, AGENCY OR OFFICE. (B) NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW, NO PARTY OR HIS OR HER COUNSEL SHALL BE CHARGED A FEE FOR VIEWING INFORMATION FILED BY ELECTRONIC MEANS, OR FOR DOWNLOADING OR PRINTING SUCH INFORMATION THROUGH THE USE OF SUCH PARTY'S OR COUNSEL'S OWN EQUIPMENT. THE CHIEF ADMINISTRATOR OF THE COURTS SHALL ENSURE THAT SUFFICIENT COMPUTER TERMI- NALS AND STAFF ARE AVAILABLE AT THE COURTHOUSE OF EACH COURT PARTICIPAT- ING IN THE PROGRAM IN THE USE OF ELECTRONIC MEANS, TO ENABLE PARTIES AND THEIR COUNSEL TO ACCESS INFORMATION, SUBJECT TO THE PROVISIONS OF SECTIONS SIX-A AND SIX-B OF THIS ACT AND LAWS GOVERNING THE SEALING AND CONFIDENTIALITY OF COURT RECORDS, FILED BY ELECTRONIC MEANS AT SUCH COURTHOUSE IN A PROMPT AND CONVENIENT MANNER. S 2. Subparagraphs 1 and 2 of paragraph (B) of subdivision (b) of section 6 of chapter 367 of the laws of 1999, amending the civil prac- tice law and rules and the judiciary law relating to authorization of pilot programs permitting use of facsimile transmission or electronic means to commence an action or special proceeding, are REPEALED, subpar- agraphs 3, 4 and 5 of paragraph (B) are renumbered subparagraphs 1, 2 and 3 and subparagraph 1, as amended by chapter 543 of the laws of 2011, is amended to read as follows: 1. One or more classes of cases (excluding matrimonial actions as defined by the civil practice law and rules, election law proceedings, proceedings brought pursuant to article 78 of the civil practice law and
rules, and proceedings brought pursuant to the mental hygiene law) in supreme court in ERIE, Livingston, Monroe, Rockland, Tompkins, Allegany, Essex, Onondaga, SUFFOLK and Westchester counties AND IN THE COUNTIES WITHIN THE CITY OF NEW YORK, and S 3. Subdivisions (c) and (d) of section 6 of chapter 416 of the laws of 2009, amending the civil practice law and rules relating to service of papers by electronic means, as added by chapter 543 of the laws of 2011, are amended to read as follows: (c)(1) The [chief administrator shall create an] advisory committee to consult with [him or her] THE CHIEF ADMINISTRATOR regarding the develop- ment of a program relating to the use of electronic means for the commencement of criminal actions and the filing and service of papers in pending criminal actions and proceedings IS CONTINUED. The committee shall consist of such number of members as will enable the chief admin- istrator to obtain input from those who ARE OR would be affected by such electronic filing program, and such members shall include county clerks; chief clerks of supreme, county and other courts; district attorneys; not-for-profit legal service providers; public defenders; statewide and local specialty bar associations whose membership devotes a significant portion of their practice to assigned criminal cases pursuant to subpar- agraph (i) of paragraph (a) of subdivision 3 of section 722 of the coun- ty law; institutional providers of criminal defense services and other members of the criminal defense bar; representatives of victims' rights organizations; unaffiliated attorneys who regularly appear in proceedings that ARE OR would be affected by such electronic filing program and other interested members of the criminal justice community. Such committee shall help the chief administrator to evaluate the impact of such electronic filing program on litigants including unrepresented parties, practitioners and the courts and to obtain input from those who ARE OR would be affected by such electronic filing program, including district attorneys, not-for-profit legal service providers, public defenders, statewide and local specialty bar associations whose member- ship devotes a significant portion of their practice to assigned crimi- nal cases pursuant to subparagraph (i) of paragraph (a) of subdivision 3 of section 722 of the county law, institutional providers of criminal defense services and other members of the criminal defense bar, repre- sentatives of victims' rights organizations, unaffiliated attorneys who regularly appear in proceedings that ARE OR would be affected by such electronic filing program and other interested members of the criminal justice community. (2) No later than January 1, [2012] 2015, the chief administrator of the courts shall submit to the legislature, the governor and the chief judge of the state a report of the evaluation including the entities or individuals consulted, the input received, ALL PROBLEMS ENCOUNTERED OR OTHERWISE BROUGHT TO THE ATTENTION OF THE CHIEF ADMINISTRATOR OF THE COURTS OR HIS OR HER AGENTS, ALL SOLUTIONS DEVISED TO ADDRESS THE PROB- LEMS, PRESENTMENT OF ALL OUTSTANDING PROBLEMS, any recommendations of the advisory committee to the chief administrator, along with recommen- dations for legislation [authorizing the development of a program relat- ing] IN RELATION to the use of electronic means for the commencement of criminal actions and the filing and service of papers in pending crimi- nal actions and proceedings. IN THE REPORT, THE CHIEF ADMINISTRATOR ALSO SHALL ADDRESS ISSUES THAT BEAR UPON THE NEED FOR THE COURTS, DISTRICT ATTORNEYS AND OTHERS TO RETAIN PAPERS FILED WITH COURTS OR SERVED UPON PARTIES IN CRIMINAL PROCEEDINGS WHERE ELECTRONIC MEANS CAN OR HAVE BEEN USED AND MAKE RECOMMENDATIONS FOR SUCH CHANGES IN LAWS REQUIRING
RETENTION OF SUCH PAPERS AS TO THE CHIEF ADMINISTRATOR MAY SEEM APPRO- PRIATE. (d) (1) The [chief administrator shall create an] advisory committee to consult with [him or her] THE CHIEF ADMINISTRATOR regarding the development of a program relating to the use of electronic means for the origination of juvenile delinquency proceedings under article 3 of the family court act and abuse or neglect proceedings pursuant to article 10 of the family court act in family court and the filing and service of papers in such pending proceedings IS CONTINUED. The committee shall consist of such number of members as will enable the chief administrator to obtain input from those who ARE OR would be affected by such elec- tronic filing [programs] PROGRAM, and such members shall include chief clerks of family courts; representatives of authorized presentment and child protective agencies; other appropriate county and city government officials; institutional providers of legal services for children and/or parents; not-for-profit legal service providers; public defenders; attorneys assigned pursuant to article 18-B of the county law; and other members of the family court bar; representatives of victims' rights organizations; unaffiliated attorneys who regularly appear in proceedings that ARE OR would be affected by such electronic filing program; and other interested members of the family practice community. Such committee shall help the chief administrator to evaluate the impact of such electronic filing program on litigants including unrepresented parties, practitioners and the courts and to obtain input from those who ARE OR would be affected by such electronic filing program, including representatives of authorized presentment and child protective agencies, other appropriate county and city government officials, institutional providers of legal services for children and/or parents, not-for-profit legal service providers, public defenders, attorneys assigned pursuant to article 18-B of the county law and other members of the family court bar, representatives of victims' rights organizations, unaffiliated attorneys who regularly appear in proceedings that ARE OR would be affected by such electronic filing program, and other interested members of the criminal justice community. (2) No later than January 1, [2012] 2015, the chief administrator of the courts shall submit to the legislature, the governor and the chief judge of the state a report of the evaluation including the entities or individuals consulted, input received, ALL PROBLEMS ENCOUNTERED OR OTHERWISE BROUGHT TO THE ATTENTION OF THE CHIEF ADMINISTRATOR OF THE COURTS OR HIS OR HER AGENTS, ALL SOLUTIONS DEVISED TO ADDRESS THE PROB- LEMS, PRESENTMENT OF ALL OUTSTANDING PROBLEMS, any recommendations of the advisory committee to the chief administrator, along with recommen- dations for legislation [authorizing the development of a program relat- ing] IN RELATION to the use of electronic means for the origination of juvenile delinquency proceedings under article 3 of the family court act and abuse or neglect proceedings pursuant to article 10 of the family court act in family court and the filing and service of papers in such pending proceedings. S 4. This act shall take effect immediately; provided, however, that sections 6-a, 6-b, and 6-c of chapter 367 of the laws of 1999, as added by section one of this act, shall expire and be deemed repealed Septem- ber 1, 2015; and provided further that the amendments to paragraph (B) of subdivision (b) of section 6 of chapter 367 of the laws of 1999 made by section two of this act shall not affect the expiration of such provisions and shall be deemed to be repealed therewith.

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