S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2098
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 17, 2017
                                ___________
 
 Introduced by M. of A. LENTOL -- Multi-Sponsored by -- M. of A. GANTT --
   read once and referred to the Committee on Codes
 
 AN  ACT  to  amend  the criminal procedure law, in relation to discovery
   requirements and procedures and to repeal certain provisions  of  such
   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 Article 240 of the criminal procedure law is REPEALED and a
 new article 240 is added to read as follows:
                                ARTICLE 240
              AUTOMATIC DISCOVERY PROCEDURE AND REQUIREMENTS
 SECTION 240.10 AUTOMATIC DISCOVERY.
         240.20 RECIPROCAL DISCOVERY.
         240.30 DEPOSITIONS.
         240.35 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
         240.40 PRESERVATION OF EVIDENCE.
         240.43 DISCRETIONARY DISCOVERY BY ORDER OF THE COURT.
         240.44 CERTIFICATES OF COMPLIANCE.
         240.45 CONTINUING DUTY TO DISCLOSE.
         240.50 PROTECTIVE ORDERS.
         240.60 REMEDIES AND SANCTIONS FOR NONCOMPLIANCE WITH THIS  ARTI-
                 CLE.
         240.70 LOST OR DESTROYED MATERIALS.
 § 240.10 AUTOMATIC DISCOVERY.
   THE  PROSECUTION  IS  HEREBY  REQUIRED  TO PROVIDE DISCOVERY MATERIALS
 WITHOUT A MOTION BY DEFENSE BEFORE OR AT  ARRAIGNMENT.  THE  PROSECUTION
 SHALL  DISCLOSE  TO THE DEFENDANT, AND PERMIT THE DEFENDANT TO DISCOVER,
 INSPECT,  COPY  OR  PHOTOGRAPH,  ALL  ITEMS  AND  INFORMATION  WHEN   IN
 POSSESSION,  CUSTODY  OR CONTROL OF THE PROSECUTION OR PERSONS UNDER THE
 PROSECUTION'S DIRECTION OR CONTROL INCLUDING BUT NOT LIMITED TO:
   1. WITNESS CONTACT INFORMATION AND ALL  WRITTEN  AND  RECORDED  STATE-
 MENTS,  AND  THE SUBSTANCE OF ALL ORAL STATEMENTS. THE PROBATION DEPART-
 MENT  IS  REQUIRED  TO  PROVIDE  THE  PARTIES  WITH  A  RECORD  OF   ALL
 CONVICTIONS,  COMPLAINTS, AND INDICTMENTS AGAINST ALL OF THE PROSPECTIVE
              

 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03405-01-7

 A. 2098                             2
 
 PROSECUTION WITNESSES AND ALL DEFENDANTS WITHIN FIVE DAYS OF THE  PROSE-
 CUTION'S  DISCLOSURE  OF  ITS  WITNESSES'  NAMES  AND  ADDRESSES  TO THE
 DEFENSE.
   2.  ALL  TRANSCRIPTS  OF  THE  TESTIMONY OF A PERSON WHO HAS TESTIFIED
 BEFORE ANY GRAND JURY WHEN THE TESTIMONY RELATES TO THE  SUBJECT  MATTER
 OF THE CASE.
   3.  IDENTIFICATION  INFORMATION  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.
   4. STATEMENTS OF IDENTIFICATION PROCEDURES.
   5. ALL TANGIBLE OBJECTS AND EXHIBITS.
   6. ALL DEFENDANTS' STATEMENTS.
   7.  ALL  EXCULPATORY  FACTS  IN  POSSESSION  OF  THE PROSECUTION OR OF
 PERSONS UNDER THE PROSECUTION'S DIRECTION OR WHO INVESTIGATED THE  CASE;
 NOT LIMITED TO "MATERIALLY EXCULPATORY" EVIDENCE.
   8.  ALL  STATEMENTS  WRITTEN  OR  RECORDED WHICH RELATE TO THE SUBJECT
 MATTER.
   9. INTENDED EXPERT OPINION INCLUDING ALL CONTACT INFORMATION, PUBLICA-
 TIONS OF INTENDED WITNESS, AND  REPORTS  PREPARED  BY  THE  EXPERT  THAT
 PERTAIN TO THE CASE.
   10.  SUMMARY OF ALL CORPOREAL OR NON-CORPOREAL OR VOICE IDENTIFICATION
 PROCEDURES.
   11. SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE  TO  PERSONS
 WHO MAY BE CALLED AS WITNESSES.
   12.  WHETHER  THE PROSECUTION HAS ANY EVIDENCE OR INFORMATION THAT MAY
 HAVE BEEN PROVIDED BY A CONFIDENTIAL OR JAILHOUSE INFORMANT.
   13. WHETHER A SEARCH WARRANT HAS BEEN  EXECUTED  AND  ALL  INFORMATION
 RELATING THERETO.
   14. WHETHER THERE HAS BEEN ANY ELECTRONIC SURVEILLANCE.
 § 240.20 RECIPROCAL DISCOVERY.
   THE  DEFENSE,  SUBJECT  TO  CONSTITUTIONAL LIMITATIONS, HAS RECIPROCAL
 DISCOVERY OBLIGATIONS AFTER IT RECEIVES THE PROSECUTOR'S DISCOVERY PACK-
 AGE. THE DEFENSE MUST DISCLOSE ALL RELEVANT MATERIAL EVIDENCE WITHIN THE
 DEFENDANT'S POSSESSION INCLUDING THE NAMES, ADDRESSES,  DATES  OF  BIRTH
 AND STATEMENTS BY INDIVIDUALS WHOM THE DEFENSE INTENDS TO CALL AT TRIAL,
 INTENDED  EXPERT OPINION EVIDENCE, PHOTOGRAPHS, TANGIBLE OBJECTS, EXHIB-
 ITS, SCIENTIFIC TEST REPORTS; AND INFORMATION REGARDING ANY  INDUCEMENTS
 OR PROMISES TO ANY WITNESS.
 § 240.30 DEPOSITIONS.
   ANY  TIME  AFTER  THE FILING OF AN ACCUSATORY INSTRUMENT, THE COURT IN
 ITS DISCRETION MAY, UPON MOTION OF ANY PARTY, ORDER THE  EXAMINATION  OF
 ANY  PERSON EXCEPT THE DEFENDANT UPON ORAL DEPOSITION IF THE PARTY SHOWS
 THAT THE PERSON'S TESTIMONY IS MATERIAL TO  THE  CASE  OR  NECESSARY  TO
 ADEQUATELY PREPARE A DEFENSE.
 § 240.35 NON-TESTIMONIAL EVIDENCE FROM THE DEFENDANT.
   AFTER THE FILING OF AN ACCUSATORY INSTRUMENT, AND SUBJECT TO CONSTITU-
 TIONAL  LIMITATIONS, THE COURT MAY, UPON MOTION BY THE PROSECUTION SHOW-
 ING PROBABLE CAUSE TO BELIEVE THE DEFENDANT HAS COMMITTED 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 APPEAR IN A LINEUP AND
 OTHER EVIDENCE.
 § 240.40 PRESERVATION OF EVIDENCE.
   EVIDENTIARY MATERIALS ARE REQUIRED TO BE MAINTAINED IN THEIR  ORIGINAL
 CONDITION AND SHALL INCLUDE BUT NOT BE LIMITED TO:

 A. 2098                             3
 
   1.  VIDEOTAPE OF INTERVIEWS AT THE POLICE STATION OR OTHER FACILITIES:
 NO ORAL, WRITTEN OR SIGN LANGUAGE STATEMENT OF A SUSPECT MADE DURING  AN
 INTERVIEW  SHALL  BE  ADMISSIBLE  AS  SUBSTANTIVE  EVIDENCE AGAINST THAT
 PERSON IN ANY CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING,  WHICH
 MUST  BE FOCUSED UPON BOTH THE QUESTIONER AND THE SUSPECT THROUGHOUT AND
 MUST INCLUDE NOT ONLY AUDIO BUT ALSO VISUAL RECORDING, IS  MADE  OF  THE
 COMPLETE INTERVIEW.
   2.  TELEPHONE  CALLS  AND  POLICE RADIO TRANSMISSIONS: WHEN ELECTRONIC
 RECORDINGS OF 911 TELEPHONE CALLS OR POLICE RADIO TRANSMISSIONS ARE MADE
 IN CONNECTION WITH AN  INVESTIGATION,  THE  ARRESTING  OFFICER  OR  LEAD
 DETECTIVE  MUST  EXPEDITIOUSLY  NOTIFY THE PROSECUTION IN WRITING OF THE
 EXISTENCE OF ALL RECORDINGS.
   3. MATERIAL POSSESSED BY OTHER GOVERNMENT PERSONNEL OR THIRD  PARTIES:
 THE  PROSECUTION  IS REQUIRED TO NOTIFY THE DEFENSE WHENEVER IT RECEIVES
 INFORMATION ABOUT THE EXISTENCE OF ANY OTHERWISE DISCOVERABLE ITEM  THAT
 IS NOT WITHIN THE POSSESSION, CUSTODY OR CONTROL OF LAW ENFORCEMENT, AND
 THE  PARTIES  CAN  MOVE  FOR A COURT ORDER REQUIRING THE PRESERVATION OF
 SUCH ITEMS BY A THIRD PARTY.
 § 240.43 DISCRETIONARY DISCOVERY BY ORDER OF THE COURT.
   UPON THE REQUEST BY THE DEFENDANT, TO THE COURT, IF THE  DEFENDANT  IS
 UNABLE  WITHOUT  UNDUE  HARDSHIP TO OBTAIN THE SUBSTANTIAL EQUIVALENT BY
 OTHER MEANS, THE COURT MAY ORDER THE  PROSECUTION,  OR  ANY  INDIVIDUAL,
 AGENCY OR OTHER ENTITY TO MAKE AVAILABLE FOR DISCLOSURE TO THE DEFENDANT
 ANY  MATERIAL  OF  INFORMATION  WHICH POTENTIALLY RELATES TO THE SUBJECT
 MATTER OF THE CASE OR IS OTHERWISE RELEVANT.
 § 240.44 CERTIFICATES OF COMPLIANCE.
   THE PROSECUTION AND DEFENSE MUST CERTIFY IN  WRITING  THAT  THEY  HAVE
 EXERCISED  DUE  DILIGENCE  IN COMPLYING WITH THEIR DISCOVERY OBLIGATIONS
 AND THIS CERTIFICATION MUST IDENTIFY EACH ITEM THAT WAS PROVIDED.
 § 240.45 CONTINUING DUTY TO DISCLOSE.
   IF THE PROSECUTION OR THE DEFENDANT SUBSEQUENTLY LEARNS OF  ADDITIONAL
 MATERIAL  OR INFORMATION WHICH IT WOULD HAVE A DUTY TO DISCLOSE PURSUANT
 TO ANY PROVISIONS OF THIS ARTICLE, IT SHALL IMMEDIATELY NOTIFY THE OTHER
 PARTY AND DISCLOSE THE ADDITIONAL MATERIAL OR INFORMATION AS REQUIRED BY
 THIS CHAPTER.
 § 240.50 PROTECTIVE ORDERS.
   THE  COURT  MAY  ORDER  THAT  DISCOVERY  OR  INSPECTION   BE   DENIED,
 RESTRICTED,  CONDITIONED  OR  DEFERRED,  OR  MAY  GRANT DISCOVERY TO THE
 DEFENDANT ON THE CONDITION THAT THE MATERIAL BE AVAILABLE ONLY TO  COUN-
 SEL FOR THE DEFENDANT.
 § 240.60 REMEDIES AND SANCTIONS FOR NONCOMPLIANCE WITH THIS ARTICLE.
   A RANGE OF LEGAL REMEDIES ARE AVAILABLE FOR FAILING TO COMPLY WITH ANY
 DISCOVERY ORDER ISSUED OR IMPOSED. THIS INCLUDES BUT SHALL NOT BE LIMIT-
 ED  TO  THE  ABILITY  OF THE COURT TO MAKE A FURTHER ORDER OF DISCOVERY,
 GRANT A CONTINUANCE, ORDER THAT THE HEARING BE REOPENED,  ORDER  THAT  A
 WITNESS  BE  CALLED  OR  RECALLED, ORDER A MISTRIAL OR DISMISSAL OF SOME
 CHARGES.
 § 240.70 LOST OR DESTROYED MATERIALS.
   WHEN MATERIAL OR INFORMATION IS DISCOVERABLE, BUT CANNOT BE  DISCLOSED
 BECAUSE  IT HAS BEEN LOST OR DESTROYED, THE COURT SHALL IMPOSE AN APPRO-
 PRIATE REMEDY OR SANCTION WHICH IS PROPORTIONATE TO THE  POTENTIAL  WAYS
 IN  WHICH  THE LOST OR DESTROYED MATERIAL COULD HAVE BEEN HELPFUL TO THE
 PARTY ENTITLED TO DISCLOSURE.
   § 2. This act shall take effect on the sixtieth  day  after  it  shall
 have  become  a law and shall apply to all arraignments commencing on or
 after such effective date.