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A04360 Summary:

BILL NOA04360A
 
SAME ASSAME AS S08707
 
SPONSORLentol
 
COSPNSRTaylor, Perry, Ortiz, Jean-Pierre, Weprin, Dickens, Sepulveda
 
MLTSPNSR
 
Rpld Art 240, add Art 245 245.10 - 245.85, amd 610.20, 65.20, 200.95, 255.10, 255.20, 340.30, 400.27 & 440.30, CP L; amd 450.10, 460.80 & 480.10, Pen L
 
Establishes new criminal discovery rules; amends cross references.
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A04360 Actions:

BILL NOA04360A
 
02/02/2017referred to codes
01/03/2018referred to codes
02/12/2018amend and recommit to codes
02/12/2018print number 4360a
03/05/2018reported
03/08/2018advanced to third reading cal.710
06/06/2018passed assembly
06/06/2018delivered to senate
06/06/2018REFERRED TO RULES
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A04360 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4360A
 
SPONSOR: Lentol
  TITLE OF BILL: An act to amend the criminal procedure law and the penal law, in relation to establishing new criminal discovery rules; and to repeal article 240 of the criminal procedure law relating thereto   PURPOSE: To modernize and make New York State's criminal discovery rules fairer. This bill calls for the repeal our current flawed discovery rules (Arti- cle 240 of the Criminal Procedure Laws) and offers a better, comprehen- sive statute; Article 245.This bill eliminates the unfairness and inef- ficiencies of the present system and, if enacted, would facilitates swift, efficient, and just disposition of criminal cases.   SUMMARY OF PROVISIONS: *245.10. Timing of discovery *245.20. Automatic discovery *245.25. Disclosure prior to guilty plea deadline *245.30. Court orders for preservation, access or discovery *245.35. Court ordered procedures to facilitate compliance *245.40. Non-testimonial evidence from the defendant *245.45. DNA comparison order *245.50. Certificates of compliance *245.55. Flow of information *245.60. Continuing duty to disclose *245.65. Work product *245.70. Protective orders *245.75. Waiver of discovery by defendant *245.80. Remedies or sanctions for noncompliance *245.85. Admissibility of discovery Sections 245.10(1)&(3), 245.50: The prosecution automatically provides its discovery 15 days after arraignment, and then files a "Certificate of Compliance." The defense automatically provides its reciprocal discovery 30 days after the prosecution's completion of its discovery obligations, and then files a "Certificate of Compliance." (These rules dispense with the need for filing written discovery "demands" and discovery motion practice, and both parties' disclosures occur earlier than under current law.) Section 245.70: Either party may withhold any discoverable item or information when there is a basis to believe that a protective order would be appropriate, and the court may issue any type of protective order for good cause shown. (This rule is the same as under current law.) Section 245.20(1)(e): The prosecution timely discloses all relevant written or recorded statements in its control that were made by persons whom the prosecutor knows to have information relevant to any offense charged or to a potential defense thereto. (This occurs earlier than under current law, and is broader than under current law in particular because it includes statements by potential defense witnesses.) Sections 245.20(1)(a),(f),(g),(h): The prosecution timely discloses all relevant police reports and law enforcement agency reports, police paperwork, intended exhibits, tapes and other electronic recordings, photographs, drawings, tangible objects, reports of scientific tests and experiments,-reports of physical and mental examinations, defendants' and co-defendants' statements, and expert opinion evidence. (This occurs earlier than under current law, and is broader than under current law in particular because it includes police reports.) Sections 245.20(1)(c)&(d): The prosecution timely discloses the names of and contact information for all persons whom the prosecutor knows to have information relevant to any offense charged or to a potential defense thereto. (This information need not be disclosed under current law.) Section 245.20(1)(k): The prosecution timely discloses all information which tends to negate the defendant's guilt or to mitigate the defend- ant's culpability, or which tends to support a potential defense, or which tends to support a motion to suppress on constitutional grounds, or which would tend to reduce the punishment of the defendant. (This is similar to the ethical requirement of Rule of Professional Conduct § 3.8 . It occurs earlier than under current law, and is broader than under current law insofar as it abandons the requirement that only "mate- rially" exculpatory information need be disclosed.) Section 245.25(2): The prosecution provides "material" discovery before a guilty plea offer when a deadline has been placed on that offer. If the prosecution does not comply with a proper request made pursuant to this paragraph, the guilty plea offer shall be deemed available to the defendant until seven calendar days after the prosecution has made the disclosure or the court may take other appropriate action as necessary to address the non-compliance. (This is not an expressly stated power of the court under current law.) Sections 245.10(2), 245.20(4): The defense discloses the names of and contact information for all witnesses whom it intends to call; all rele- vant written and recorded statements in its control that were made by those persons (other than the defendant); and intended exhibits, tapes and other electronic recordings, photographs, drawings, tangible objects, reports of scientific tests and experiments, reports of phys- ical and mental examinations, and expert opinion evidence that it intends to offer.(This reciprocal discovery occurs earlier than, and is broader than, under current law.) Section 245.30: The court has discretionary authority to order discovery of items not otherwise covered by the statute, when an appropriate show- ing is made. (This is not available under current law.)   JUSTIFICATION: In   BERGER V. UNITED STATES, 295 U.S. 78, 88 (1935), the United States Supreme Court declared that the prosecutor must be a servant of the law, both seeking to avoid wrongful convictions and using every legitimate means to bring about just ones. In recent years, far too many criminal cases have exposed the government's failure, whether through negligence or by design, to uphold our constitutional obligations to defendants. This failure has been exacerbated, principally, by our woefully inade- quate state discovery slaws. Our rules and procedures. To assist in the speedy resolution of criminal cases, to help the innocent from suffering harm, and to ensure that the guilty (every person wrongly charged enables a criminal to walk free) face certain justice, New York desper- ately needs reform in this area. Fairer discovery will not impede law enforcement from carry out its mission--it will assist them and will prevent miscarriages of justice. Our current discovery rules were last significantly revised in 1979. It's well past time for the reforms, proposed in this bill, to be instituted. The time for change is now. People litigating a civil claim in New York State, such as a debt or a contract dispute, have the opportunity through discovery to learn what they should know about the other side's case. So, too, do criminal defendants in many other states, since their criminal discovery rules allow broad, early, and automatic access to the prosecution's evidence. But under New York's 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 inves- tigate, to secure and use any potentially exculpatory evidence, to fair- ly weigh a guilty plea offer, or to develop a trial strategy. Overhaul of New York's criminal discovery rules will 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. Broad criminal discovery is in fact the mainstream approach. 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." In contrast, large states with big cities that ordinarily are considered much more akin to New York - including California, Florida, Illinois, Massachusetts, Michigan and New Jersey - have utilized broad criminal discovery provisions for years. This bill will rectify this crucial defect in New York State's criminal justice system. It is in this context that this bill would repeal New York's criminal discovery stat- ute, Criminal Procedure Law Article 240, and replace it with a new - more efficient and more fair - discovery system. This comprehensive new discovery statute, Article 245, draws on and supplements discovery rules and practices from these other States. Importantly, Article 245 is even-handed. It requires both the prose- cution and the defendant to provide the opposing party with extensive discovery early in the case. It eliminates unduly burdensome require- ments of routine discovery paperwork. And it includes a mechanism for prosecutors with legitimate concerns about the safety of their witnesses or with on-going investigations to withhold or redact any evidence or information covered by the statute and to move for a protective order. These same mechanisms for discovery in criminal cases have been shown to work successfully in states containing the big cities Los Angeles, Chicago, Detroit, Philadelphia, Miami, San Diego and Newark. They have not resulted in general problems of witness intimidation or impaired law enforcement. Instead, studies have shown that not only defense lawyers but also prosecutors in these states strongly approve of such discovery practices and consider them to be efficient and fair. Implementing a system of automatic, early, and broad discovery in New York State will be more effectively and coherently accomplished by replacing Article 240's framework with this new, comprehensive and internally consistent statute, which draws on the best features and language of modern discovery provisions that have worked in other compa- rable jurisdictions.   LEGISLATIVE HISTORY: A.6907 of 2011-12; A.3667 of 2013-14; A.2924 of 2015-16; A.4360-of 2017-18   FISCAL IMPLICATIONS: None   EFFECTIVE DATE: This act shall take effect 90 days after becoming law.
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A04360 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4360--A
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 2, 2017
                                       ___________
 
        Introduced by M. of A. LENTOL -- read once and referred to the Committee
          on  Codes  -- recommitted to the Committee on Codes in accordance with
          Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
 
        AN ACT to amend the  criminal  procedure  law  and  the  penal  law,  in
          relation  to  establishing new criminal discovery rules; and to repeal
          article 240 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:
 
     1    Section 1. Article 240 of the criminal procedure law is REPEALED.
     2    § 2. The criminal procedure law is amended by adding a new article 245
     3  to read as follows:
     4                                 ARTICLE 245
     5                                  DISCOVERY
     6  Section 245.10 Timing of discovery.
     7          245.20 Automatic discovery.
     8          245.25 Disclosure prior to guilty plea deadline.
     9          245.30 Court orders for preservation, access or discovery.
    10          245.35 Court ordered procedures to facilitate compliance.
    11          245.40 Non-testimonial evidence from the defendant.
    12          245.45 DNA comparison order.
    13          245.50 Certificates of compliance.
    14          245.55 Flow of information.
    15          245.60 Continuing duty to disclose.
    16          245.65 Work product.
    17          245.70 Protective orders.
    18          245.75 Waiver of discovery by defendant.
    19          245.80 Remedies or sanctions for non-compliance.
    20          245.85 Admissibility of discovery.
    21  § 245.10 Timing of discovery.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03711-03-8

        A. 4360--A                          2
 
     1    1. Prosecution's performance of obligations. (a) The prosecution shall
     2  perform  its  initial    discovery  obligations under subdivision one of
     3  section 245.20 of this article as soon as   practicable  but  not  later
     4  than  fifteen  calendar  days  after  the  defendant's arraignment on an
     5  indictment, superior court information, prosecutor's information, infor-
     6  mation,  or  simplified information. Portions of materials claimed to be
     7  non-discoverable may be withheld pending a determination and  ruling  of
     8  the  court under section 245.70 of this article; but the defendant shall
     9  be notified in writing that information has not been disclosed  under  a
    10  particular subdivision of such section, and the discoverable portions of
    11  such  materials shall be disclosed if practicable. When the discoverable
    12  materials are exceptionally voluminous, the time period  in  this  para-
    13  graph  may be stayed by up to an additional thirty calendar days without
    14  need for a motion pursuant to  subdivision two of section 245.70 of this
    15  article.
    16    (b) The prosecution shall perform  its  supplemental  discovery  obli-
    17  gations  under  subdivision  three  of section 245.20 of this article as
    18  soon as practicable but not later  than  fifteen  calendar  days  before
    19  trial.
    20    (c)  Upon timely defense request, the prosecution shall disclose mate-
    21  rials under paragraph (a) of subdivision one of section 245.20  of  this
    22  article  to  any  defendant  who  has been arraigned in a local criminal
    23  court upon a  currently  undisposed  of  felony  complaint  charging  an
    24  offense  which  is  a  subject  of  a  prospective or pending grand jury
    25  proceeding, no later than forty-eight hours before  the  time  scheduled
    26  for  the  defendant  to  testify  at a grand jury proceeding pursuant to
    27  subdivision five of section 190.50 of this part.
    28    2. Defendant's performance of obligations. The defendant shall perform
    29  his or her discovery  obligations  under  subdivision  four  of  section
    30  245.20  of  this article not later than thirty calendar days after being
    31  served with the prosecution's  certificate  of  compliance  pursuant  to
    32  subdivision  one of section 245.50 of this article, except that portions
    33  of materials claimed to be non-discoverable may be  withheld  pending  a
    34  determination and ruling of the court under section 245.70 of this arti-
    35  cle;  but  the  prosecution must be notified in writing that information
    36  has not been disclosed under a particular section.
    37  § 245.20 Automatic discovery.
    38    1. Initial discovery for the defendant. The prosecution shall disclose
    39  to the defendant, and permit the defendant to discover, inspect, copy or
    40  photograph, each of the following items and information when it  relates
    41  to  the  subject matter of the case and is in the possession, custody or
    42  control of the prosecution or persons under the prosecution's  direction
    43  or control:
    44    (a)  All written or recorded statements, and the substance of all oral
    45  statements, made by the defendant or a co-defendant to a public  servant
    46  engaged in law enforcement activity or to a person then acting under his
    47  or  her  direction  or in cooperation with him or her, other than state-
    48  ments made in the course of the criminal transaction.
    49    (b) All transcripts of the testimony of a  person  who  has  testified
    50  before  a  grand  jury,  including but not limited to the defendant or a
    51  co-defendant. If in the exercise of reasonable diligence, and due to the
    52  limited  availability  of  transcription  resources,  a  transcript   is
    53  unavailable  for disclosure within the time period specified in subdivi-
    54  sion one of section 245.10 of this article,  such  time  period  may  be
    55  stayed  by  up  to an additional thirty calendar days without need for a
    56  motion pursuant to subdivision two of section 245.70  of  this  article;

        A. 4360--A                          3
 
     1  except that such disclosure shall be made as soon as practicable and not
     2  later  than  thirty calendar days before a scheduled  trial date, unless
     3  an order is obtained pursuant to section 245.70 of  this  article.  When
     4  the court is  required to review grand jury transcripts, the prosecution
     5  shall  disclose such transcripts to the court expeditiously upon receipt
     6  by the prosecutor, notwithstanding the otherwise-applicable time periods
     7  for disclosure in this article.
     8    (c) The names of, and addresses or adequate alternative contact infor-
     9  mation for, all  persons other than law enforcement personnel  whom  the
    10  prosecutor knows to have evidence or information relevant to any offense
    11  charged  or  to  a potential defense thereto, including a designation by
    12  the prosecutor as to which of those persons may be called as  witnesses.
    13  Information  under this subdivision relating to a confidential informant
    14  may be withheld, and redacted from discovery materials, without need for
    15  a motion pursuant to section 245.70 of this article; but  the  defendant
    16  shall  be  notified  in  writing  that  such  information  has  not been
    17  disclosed, unless the court rules otherwise for good cause shown.
    18    (d) The name and work affiliation of  all  law  enforcement  personnel
    19  whom  the  prosecutor  knows to have evidence or information relevant to
    20  any offense charged or to a potential  defense    thereto,  including  a
    21  designation by the prosecutor as to which of those persons may be called
    22  as  witnesses. Information under this subdivision relating to undercover
    23  personnel  may be withheld, and redacted from discovery materials, with-
    24  out need for a motion pursuant to section 245.70 of  this  article;  but
    25  the defendant shall be notified in writing that such information has not
    26  been disclosed, unless the court rules otherwise for good cause shown.
    27    (e)  All  statements, written or recorded or summarized in any writing
    28  or recording, made by persons who have evidence or information  relevant
    29  to any offense charged or to a potential  defense thereto, including all
    30  police  reports and law enforcement agency reports.  This provision also
    31  includes statements, written or recorded or summarized in any writing or
    32  recording, by persons to be called as witnesses at pre-trial hearings.
    33    (f) Expert opinion evidence, including  the  name,  business  address,
    34  current  curriculum    vitae,  and a list of publications of each expert
    35  witness whom the prosecutor intends to call as a witness at trial  or  a
    36  pre-trial  hearing,  and all reports prepared by the expert that pertain
    37  to the case, or if no report is prepared, a  written  statement  of  the
    38  facts  and  opinions  to  which  the expert is expected to testify and a
    39  summary of the grounds for each opinion. This paragraph does  not  alter
    40  or  in any way affect the procedures, obligations or rights set forth in
    41  section 250.10 of this  title. If in the exercise  of  reasonable  dili-
    42  gence  this  information  is  unavailable for disclosure within the time
    43  period specified in subdivision one of section 245.10 of  this  article,
    44  that  period    shall  be  stayed  without need for a motion pursuant to
    45  subdivision two of section 245.70 of this    article;  except  that  the
    46  disclosure shall be made as soon as practicable and not later than sixty
    47  calendar days before a scheduled trial date, unless an order is obtained
    48  pursuant  to  section  245.70  of  this  article. When the prosecution's
    49  expert witness is being called in response to disclosure  of  an  expert
    50  witness  by the defendant, the court shall alter a scheduled trial date,
    51  if necessary, to  allow the prosecution thirty calendar days to make the
    52  disclosure and the defendant thirty calendar days to prepare and respond
    53  to the new materials.
    54    (g) All tapes or other electronic  recordings  which  the  prosecution
    55  intends to introduce at trial or a pre-trial hearing.

        A. 4360--A                          4
 
     1    (h) All photographs and drawings made or completed by a public servant
     2  engaged  in  law    enforcement activity, or which were made by a person
     3  whom the prosecutor intends to call as a witness at trial or a pre-trial
     4  hearing, or which the prosecution intends to introduce  at  trial  or  a
     5  pre-trial hearing.
     6    (i)  All  photographs, photocopies and reproductions made by or at the
     7  direction of law enforcement personnel of  any  property  prior  to  its
     8  release pursuant to section 450.10 of the penal  law.
     9    (j)  All reports, documents, data, calculations or writings, including
    10  but not limited to   preliminary tests or screening  results  and  bench
    11  notes,  concerning physical or mental  examinations, or scientific tests
    12  or experiments or comparisons, and  analyses  performed  electronically,
    13  relating  to  the criminal action or proceeding which were made by or at
    14  the request or direction of a public servant engaged in law  enforcement
    15  activity,  or which were made by a person whom the prosecutor intends to
    16  call as a witness at trial or a pre-trial hearing, or which  the  prose-
    17  cution intends to introduce at trial or a pre-trial hearing.
    18    (k)  All  evidence  and  information, including that which is known to
    19  police or other law enforcement  agencies  acting  on  the  government's
    20  behalf  in  the case, that tends to: (i) negate the defendant's guilt as
    21  to a charged offense; (ii) reduce the degree of or mitigate the  defend-
    22  ant's    culpability  as to a charged offense; (iii) support a potential
    23  defense to a charged offense; (iv)  impeach the credibility of a  testi-
    24  fying  prosecution  witness;  (v)  undermine evidence of the defendant's
    25  identity as a perpetrator of a charged offense; (vi) provide a basis for
    26  a motion to  suppress evidence; or (vii) mitigate  punishment.  Informa-
    27  tion  under  this  subdivision  shall  be  disclosed whether or not such
    28  information is recorded in tangible form and irrespective of whether the
    29  prosecutor credits the information. The prosecutor  shall  disclose  the
    30  information  expeditiously  upon its receipt and shall not delay disclo-
    31  sure if it is obtained earlier than the time period  for  disclosure  in
    32  subdivision one of section 245.10 of this article.
    33    (l)  A summary of all promises, rewards and inducements made to, or in
    34  favor of, persons who may be called as witnesses, as  well  as  requests
    35  for  consideration by persons who may be called as  witnesses and copies
    36  of all documents relevant to a promise, reward or inducement.
    37    (m) A list  of  all  tangible  objects  obtained  from,  or  allegedly
    38  possessed by, the defendant  or a co-defendant. The list shall include a
    39  designation  by  the  prosecutor  as to which objects were physically or
    40  constructively possessed by the defendant and were  recovered  during  a
    41  search  or  seizure  by  a public servant or an agent thereof, and which
    42  tangible objects were recovered by a  public servant or an agent thereof
    43  after allegedly being abandoned by the  defendant.  If  the  prosecution
    44  intends  to  prove the defendant's possession of any tangible objects by
    45  means of a statutory presumption of possession, it shall designate  such
    46  intention  as to each such object. If reasonably practicable, the prose-
    47  cution shall also designate the location from which each tangible object
    48  was recovered.  There is also a right to inspect or copy  or  photograph
    49  the listed tangible objects.
    50    (n)  Whether  a  search  warrant  has  been executed and all documents
    51  relating thereto, including but not limited to the warrant, the  warrant
    52  application,  supporting  affidavits, a police inventory of all property
    53  seized under the warrant, and a transcript of  all  testimony  or  other
    54  oral communications offered in support of the warrant application.
    55    (o) All tangible property that the prosecution intends to introduce in
    56  its case-in-chief at trial or a pre-trial hearing. If in the exercise of

        A. 4360--A                          5
 
     1  reasonable  diligence  the prosecutor has not formed an intention within
     2  the time period specified in subdivision one of section 245.10  of  this
     3  article  that an item under this subdivision will be introduced at trial
     4  or  a  pre-trial  hearing, such time period shall be stayed without need
     5  for a motion pursuant to subdivision two of section 245.70 of this arti-
     6  cle; but the disclosure shall be made as soon as practicable and subject
     7  to the continuing duty to disclose in section 245.60 of this article.
     8    (p) The results of complete criminal history  record  checks  for  all
     9  defendants and all persons designated as potential prosecution witnesses
    10  pursuant  to  paragraph  (c)  of  this  subdivision,  other  than  those
    11  witnesses who are experts.
    12    (q) When it is known to the prosecution, the existence of any  pending
    13  criminal  action against all persons designated as potential prosecution
    14  witnesses pursuant to paragraph (c) of this subdivision.
    15    (r) The approximate date, time and place of the  offense  or  offenses
    16  charged and of the defendant's seizure and arrest.
    17    (s) In any prosecution alleging a violation of the vehicle and traffic
    18  law, where the defendant is charged by indictment, superior court infor-
    19  mation,  prosecutor's  information,  information, or simplified informa-
    20  tion, the most recent record of inspection, calibration  and  repair  of
    21  machines  and  instruments  utilized to perform any scientific tests and
    22  experiments and the certification certificate, if any, held by the oper-
    23  ator of the machine or instrument, and all   other disclosures  required
    24  under this article.
    25    (t)  In  any  prosecution  alleging  a  violation of section 156.05 or
    26  156.10 of the penal law, the  time,  place  and  manner  such  violation
    27  occurred.
    28    2.  Discovery  by the prosecution.   The prosecutor shall make a dili-
    29  gent, good faith effort to ascertain the existence of material or infor-
    30  mation discoverable under subdivision one of this section and  to  cause
    31  such    material or information to be made available for discovery where
    32  it exists but is not within  the  prosecutor's  possession,  custody  or
    33  control; provided that the prosecutor shall not be required to obtain by
    34  subpoena  duces  tecum  material  or information which the defendant may
    35  thereby obtain. This provision  shall  not  require  the  prosecutor  to
    36  ascertain  the existence of witnesses not known to police or another law
    37  enforcement agency, or the written or recorded statements thereof, under
    38  paragraph (c) or (e) of subdivision one of this section.
    39    3. Supplemental discovery for the  defendant.  The  prosecution  shall
    40  disclose  to the defendant a list of all misconduct and criminal acts of
    41  the defendant not charged in the indictment, superior court information,
    42  prosecutor's information, information, or simplified information,  which
    43  the  prosecution  intends to use at trial for purposes of (a) impeaching
    44  the credibility of the defendant, or (b) as  substantive  proof  of  any
    45  material  issue in the case. In addition the prosecution shall designate
    46  whether it intends to use each listed  act  for  impeachment  and/or  as
    47  substantive proof.
    48    4.  Reciprocal discovery for the prosecution. (a) The defendant shall,
    49  subject to constitutional limitations, disclose to the prosecution,  and
    50  permit  the  prosecution  to  discover, inspect, copy or photograph, any
    51  material and relevant evidence within the defendant's or counsel for the
    52  defendant's possession or control that is discoverable under  paragraphs
    53  (f),  (g),  (h),  (j),  (1)  and (o) of subdivision one of this section,
    54  which the defendant intends to offer at trial  or a  pre-trial  hearing,
    55  and  the  names,  addresses, birth dates, and all statements, written or
    56  recorded or summarized in any writing or  recording,  of  those  persons

        A. 4360--A                          6
 
     1  other than the defendant whom the defendant intends to call as witnesses
     2  at trial or a pre-trial hearing.
     3    (b)  Disclosure  of the name, address, birth date, and all statements,
     4  written or recorded or summarized in any  writing  or  recording,  of  a
     5  person  whom  the  defendant  intends  to call as a witness for the sole
     6  purpose of impeaching a prosecution witness is not required until  after
     7  the prosecution witness has testified at trial.
     8    (c)  If  in  the  exercise  of  reasonable  diligence the reciprocally
     9  discoverable information  under paragraph (f) or (o) of subdivision  one
    10  of  this  section  is unavailable for disclosure within  the time period
    11  specified in subdivision two of section 245.10  of  this  article,  such
    12  time period shall be stayed without need for a motion pursuant to subdi-
    13  vision  two of section 245.70 of this  article; but the disclosure shall
    14  be made as soon as practicable and subject to  the  continuing  duty  to
    15  disclose in section 245.60 of this article.
    16    5. Stay of automatic discovery; remedies and sanctions. Section 245.10
    17  and  subdivisions    one, two, three and four of this section shall have
    18  the force and effect of a court order, and failure to provide  discovery
    19  pursuant to such section or subdivision may result in application of any
    20  remedies  or  sanctions  permitted for non-compliance with a court order
    21  under section 245.80 of this article. However, if  in  the  judgment  of
    22  either  party good cause exists for declining to make any of the disclo-
    23  sures set forth above, such party may move for a protective order pursu-
    24  ant to section 245.70 of this article and production of the  item  shall
    25  be  stayed  pending  a  ruling by the court. The opposing party shall be
    26  notified in writing that information has not   been  disclosed  under  a
    27  particular  section.  When  some  parts  of  material or information are
    28  discoverable but in the judgment  of  a  party  good  cause  exists  for
    29  declining  to  disclose  other  parts,  the  discoverable parts shall be
    30  disclosed and the disclosing party shall give notice in    writing  that
    31  non-discoverable parts have been withheld.
    32    6.  Redactions  permitted.  Either  party  may  redact social security
    33  numbers and tax numbers from disclosures under this article.
    34  § 245.25 Disclosure prior to guilty plea deadline.
    35    1. Pre-indictment guilty pleas. Upon a  felony  complaint,  where  the
    36  prosecution has made a pre-indictment guilty plea offer requiring a plea
    37  to  a crime, the defendant shall have the right  upon timely request and
    38  reasonable notice to the prosecution to inspect any available police  or
    39  other  law  enforcement  agency report of a factual nature regarding the
    40  arrest or investigation of the charges, and/or any designated and avail-
    41  able items or information that could be of material   importance to  the
    42  decision  on  the  guilty  plea offer and would be discoverable prior to
    43  trial under subdivision one of section 245.20 of this article. The pros-
    44  ecution shall disclose the requested and  designated items  or  informa-
    45  tion,  as  well as any known information that tends to be exculpatory or
    46  to support a defense to a charged offense, not less than three  calendar
    47  days prior to the expiration date of any guilty plea offer by the prose-
    48  cution  or any deadline imposed by the court for acceptance of a negoti-
    49  ated guilty plea offer.  If the prosecution does not comply with a prop-
    50  er request made pursuant to  this    subdivision,  the  court  may  take
    51  appropriate action as necessary to address the non-compliance, including
    52  allowing a guilty plea to the original guilty plea offer notwithstanding
    53  other  provisions    of  this  chapter. The inspection rights under this
    54  subdivision do not apply to items or information that are the subject of
    55  a protective order under section 245.70 of this  article;  but  if  such
    56  information  tends  to  be  exculpatory,  the court shall reconsider the

        A. 4360--A                          7
 
     1  protective order. The court may deny  an  inspection  right  under  this
     2  subdivision  when  a reasonable person in the defendant's position would
     3  not consider the requested and designated item or information to  be  of
     4  material  importance to the decision on the guilty plea offer. A defend-
     5  ant may waive his or her rights under this  subdivision;  but  a  guilty
     6  plea offer may not be conditioned on such waiver.
     7    2. Other guilty pleas. Upon an indictment, superior court information,
     8  prosecutor's    information,  information,  simplified  information,  or
     9  misdemeanor complaint, where the prosecution  has  made  a  guilty  plea
    10  offer  requiring  a  plea to a crime, the defendant shall have the right
    11  upon timely request and reasonable notice to the prosecution to  inspect
    12  any available police or other law enforcement agency report of a factual
    13  nature  regarding the arrest or investigation of the charges, and/or any
    14  designated and available items or information that could be of  material
    15  importance to the decision on the guilty plea offer and would be discov-
    16  erable  prior  to  trial under subdivision one of section 245.20 of this
    17  article. The prosecution shall disclose  the  requested  and  designated
    18  items  or information, as well as any known information that tends to be
    19  exculpatory or to support a defense to a charged offense, not less  than
    20  seven  calendar  days  prior  to  the expiration date of any guilty plea
    21  offer by the prosecution or any deadline imposed  by  the  court  for  a
    22  guilty  plea.  If  the prosecution does not comply with a proper request
    23  made pursuant to this subdivision, the guilty plea offer may  be  deemed
    24  available  to  the  defendant until seven calendar days after the prose-
    25  cution has made the disclosure or the court may take  other  appropriate
    26  action as necessary to address the non-compliance. The inspection rights
    27  under this subdivision do not apply to items or information that are the
    28  subject  of a protective order under section 245.70 of this article; but
    29  if such information tends to be exculpatory, the court shall  reconsider
    30  the  protective order. The court may deny an inspection right under this
    31  subdivision  when  a reasonable person in the defendant's position would
    32  not consider the requested and designated item or information to  be  of
    33  material  importance to the decision on the guilty plea offer. A defend-
    34  ant may waive his or her rights under this  subdivision,  but  a  guilty
    35  plea offer may not be conditioned on such waiver.
    36  § 245.30 Court orders for preservation, access or discovery.
    37    1.  Order  to  preserve  evidence. At any time, a party may move for a
    38  court order to any individual, agency or  other  entity  in  possession,
    39  custody  or  control  of items which relate to the subject matter of the
    40  case or are otherwise relevant, requiring that such items  be  preserved
    41  for  a specified period of time. The court shall hear and rule upon such
    42  motions expeditiously. The  court may modify or  vacate  such  an  order
    43  upon  a  showing  that  preservation  of particular evidence will create
    44  significant hardship, on condition that  the  probative  value  of  that
    45  evidence is preserved by a specified alternative means.
    46    2.  Order  to grant access to premises. At any time, the defendant may
    47  move for a court order to any individual,  agency  or  other  entity  in
    48  possession,  custody  or control of a crime scene or other premises that
    49  relates to the subject matter of the  case  or  is  otherwise  relevant,
    50  requiring  that  counsel for the defendant be granted prompt and reason-
    51  able access to inspect, photograph or measure such crime scene or  prem-
    52  ises,  and  that  the  condition  of  the crime scene or premises remain
    53  unchanged in the interim. The  court  shall  hear  and  rule  upon  such
    54  motions  expeditiously.    The  court may modify or vacate such an order
    55  upon a showing that granting access to a particular crime scene or prem-

        A. 4360--A                          8
 
     1  ises will create significant hardship, on condition that the   probative
     2  value of such location is preserved by a specified alternative means.
     3    3.  Discretionary  discovery  by  order of the court. The court in its
     4  discretion may, upon a showing by the  defendant  that  the  request  is
     5  reasonable  and  that  the defendant is unable without undue hardship to
     6  obtain the substantial equivalent by other means, order the prosecution,
     7  or any individual, agency or other entity subject to the jurisdiction of
     8  the court, to make available for disclosure to the defendant any materi-
     9  al or information which potentially relates to the subject matter of the
    10  case and is reasonably likely to be material. A motion under this subdi-
    11  vision must  be on notice to any person or entity affected by the order.
    12  The court may, upon request of any person  or  entity  affected  by  the
    13  order, modify or vacate the order if compliance would be unreasonable or
    14  will  create  significant hardship. The court may permit a party seeking
    15  or opposing a discretionary order of discovery under  this  subdivision,
    16  or another affected person or entity, to submit papers or testify on the
    17  record  ex  parte or in camera. Any such papers and a transcript of such
    18  testimony may be sealed and shall constitute a part  of  the  record  on
    19  appeal.
    20  § 245.35 Court ordered procedures to facilitate compliance.
    21    To  facilitate  compliance with this article, and to reduce or stream-
    22  line litigation of any  disputes  about  discovery,  the  court  in  its
    23  discretion may issue an order:
    24    1.  Requiring  that the prosecutor and counsel for the defendant dili-
    25  gently confer to attempt to reach an accommodation  as  to  any  dispute
    26  concerning discovery prior to seeking a ruling from the court;
    27    2.  Requiring  a  discovery  compliance conference at a specified time
    28  prior to trial between the prosecutor, counsel for all  defendants,  and
    29  the court or its staff;
    30    3.  Requiring  the  prosecution  to  file an additional certificate of
    31  compliance that states that  the prosecutor and/or an appropriate  named
    32  agent  has  made  reasonable  inquiries of all police officers and other
    33  persons who have participated in investigating or  evaluating  the  case
    34  about  the  existence  of  any  favorable evidence or information within
    35  paragraph (k) of subdivision one of  section  245.20  of  this  article,
    36  including  such  evidence or information that was not reduced to writing
    37  or otherwise memorialized or preserved as evidence,  and  has  disclosed
    38  any such  information to the defendant; and/or
    39    4.  Requiring  other  measures  or  proceedings designed to carry into
    40  effect the goals of this article.
    41  § 245.40 Non-testimonial evidence from the defendant.
    42    1. Availability. After the filing of  an  accusatory  instrument,  and
    43  subject  to  constitutional   limitations, the court may, upon motion of
    44  the prosecution showing probable cause  to  believe  the  defendant  has
    45  committed  the crime, a clear indication that relevant material evidence
    46  will be found, and that the method used to secure such evidence is  safe
    47  and  reliable, require a defendant  to provide non-testimonial evidence,
    48  including to:
    49    (a) Appear in a lineup;
    50    (b) Speak for identification by a witness or potential witness;
    51    (c) Be fingerprinted;
    52    (d) Pose for photographs not involving reenactment of an event;
    53    (e) Permit the taking of samples of the defendant's blood,  hair,  and
    54  other  materials  of  the defendant's body that involves no unreasonable
    55  intrusion thereof;
    56    (f) Provide specimens of the defendant's handwriting; and

        A. 4360--A                          9
 
     1    (g) Submit to a reasonable  physical  or  medical  inspection  of  the
     2  defendant's body.
     3    2. Limitations. This section shall not be construed to alter or in any
     4  way  affect  the issuance of a similar court order, as may be authorized
     5  by law, before the filing of an accusatory instrument,  consistent  with
     6  such  rights  as the defendant may derive from the state constitution or
     7  the United States constitution. This section shall not be  construed  to
     8  alter  or  in any way affect the administration of a chemical test where
     9  otherwise authorized. An order pursuant to this section  may be  denied,
    10  limited or conditioned as provided in section 245.70 of this article.
    11  § 245.45 DNA comparison order.
    12    Where  property  in  the prosecution's possession, custody, or control
    13  consists of a   deoxyribonucleic  acid  ("DNA")  profile  obtained  from
    14  probative  biological  material gathered in connection with the investi-
    15  gation of the crime, or the defendant, or the prosecution of the defend-
    16  ant, and the defendant establishes (a) that such profile  complies  with
    17  federal  bureau  of  investigation  or state requirements, whichever are
    18  applicable and as such requirements are applied to law enforcement agen-
    19  cies seeking a keyboard search or similar comparison, and (b)  that  the
    20  data meets state DNA index  system or national DNA index system criteria
    21  as  such criteria are applied to law enforcement agencies seeking such a
    22  keyboard search or similar comparison, the court may, upon motion  of  a
    23  defendant  against  whom  an  indictment,  superior  court  information,
    24  prosecutor's information,  information,  or  simplified  information  is
    25  pending,  order  an  entity  that  has  access to the combined DNA index
    26  system or its successor system to compare such DNA profile  against  DNA
    27  databanks    by  keyboard  searches,  or  a similar method that does not
    28  involve uploading, upon notice to both parties and the  entity  required
    29  to  perform  the  search,  upon  a  showing by the defendant that such a
    30  comparison is material to the presentation of his  or  her  defense  and
    31  that  the  request  is  reasonable.    For  purposes  of this section, a
    32  "keyboard search" shall mean a search of a  DNA  profile  against    the
    33  databank  in  which  the  profile that is searched is not uploaded to or
    34  maintained in the  databank.
    35  § 245.50 Certificates of compliance.
    36    1. By the prosecution. When the prosecution has provided the discovery
    37  required by subdivision one of section 245.20 of  this  article,  except
    38  for  any  items or information that are the subject of an order pursuant
    39  to section 245.70 of this article, it shall serve upon the defendant and
    40  file with the court a certificate  of  compliance.  The  certificate  of
    41  compliance  shall  state that, after exercising due diligence and making
    42  reasonable inquiries to ascertain the existence of material  and  infor-
    43  mation  subject  to  discovery,  the  prosecutor  has disclosed and made
    44  available all known material and information subject  to  discovery.  It
    45  shall  also  identify  the  items  provided.  If additional discovery is
    46  subsequently provided prior to trial pursuant to section 245.60 of  this
    47  article,  a  supplemental certificate shall be served upon the defendant
    48  and filed with the court  identifying the additional material and infor-
    49  mation provided. No adverse consequence to the prosecution or the prose-
    50  cutor shall result from the filing of a  certificate  of  compliance  in
    51  good   faith; but the court may grant a remedy or sanction for a discov-
    52  ery violation as provided in section 245.80 of this article.
    53    2. By the defendant. When the defendant  has  provided  all  discovery
    54  required  by  subdivision four of section 245.20 of this article, except
    55  for any items or information that are the subject of an  order  pursuant
    56  to section 245.70 of this article, counsel for the defendant shall serve

        A. 4360--A                         10
 
     1  upon  the  prosecution  and file with the court a certificate of compli-
     2  ance.  The certificate shall state that, after exercising due  diligence
     3  and  making  reasonable inquiries to ascertain the existence of material
     4  and  information  subject  to  discovery,  counsel for the defendant has
     5  disclosed and made available all known material and information  subject
     6  to  discovery.  It shall also identify the items provided. If additional
     7  discovery is subsequently provided prior to trial  pursuant  to  section
     8  245.60  of this article, a supplemental certificate shall be served upon
     9  the prosecution and filed   with the court  identifying  the  additional
    10  material  and  information  provided.  No  adverse    consequence to the
    11  defendant or counsel for the defendant shall result from the filing of a
    12  certificate of compliance in good faith; but the court may grant a reme-
    13  dy or sanction for a discovery violation as provided in  section  245.80
    14  of this article.
    15  § 245.55 Flow of information.
    16    1.  Sufficient communication for compliance. The district attorney and
    17  the assistant responsible for the case, or, if the matter is  not  being
    18  prosecuted  by  the  district  attorney,  the prosecuting agency and its
    19  assigned representative, shall endeavor to ensure that a flow of  infor-
    20  mation  is maintained between the police and other investigative person-
    21  nel and his or  her  office  sufficient  to  place  within  his  or  her
    22  possession  or  control  all  material  and information pertinent to the
    23  defendant and the offense or offenses charged, including, but not limit-
    24  ed to, any evidence or information discoverable under paragraph  (k)  of
    25  subdivision one of section 245.20 of this article.
    26    2.  Provision of law enforcement agency files. Absent a court order or
    27  clear security requirement, upon request by the prosecution, a New  York
    28  state  law  enforcement agency shall make available to the prosecution a
    29  complete copy of its complete files related to the investigation of  the
    30  case  or the prosecution of the defendant for compliance with this arti-
    31  cle.
    32    3.  911  telephone  call  and  police  radio  transmission  electronic
    33  recordings,   police  worn  body  camera  recordings  and  other  police
    34  recordings.  (a) Whenever an electronic recording  of  a  911  telephone
    35  call  or  a  police  radio transmission or video or audio footage from a
    36  police body-worn camera or other police recording was made  or  received
    37  in   connection with the investigation of an apparent criminal incident,
    38  the arresting officer or lead  detective shall expeditiously notify  the
    39  prosecution  in  writing  upon the filing of an accusatory instrument of
    40  the existence of all such known recordings. The prosecution shall  expe-
    41  ditiously  take  whatever  reasonable steps are necessary to ensure that
    42  all known electronic recordings of 911  telephone  calls,  police  radio
    43  transmissions  and  video  and audio footage and other police recordings
    44  made or available in connection with the case are  preserved  throughout
    45  the pendency of the case. Upon the defendant's timely request and desig-
    46  nation  of  a specific electronic recording of a 911 telephone call, the
    47  prosecution shall also  expeditiously take whatever reasonable steps are
    48  necessary to ensure that it is preserved throughout the pendency of  the
    49  case.
    50    (b)  If the prosecution fails to disclose such an electronic recording
    51  to the defendant pursuant to paragraph (e), (g) or  (k)  of  subdivision
    52  one  of  section  245.20 of this article due to a failure to comply with
    53  this obligation by police officers or other law  enforcement  or  prose-
    54  cution personnel, the court upon motion of the defendant shall impose an
    55  appropriate  remedy or sanction pursuant to section 245.80 of this arti-
    56  cle.

        A. 4360--A                         11
 
     1  § 245.60 Continuing duty to disclose.
     2    If  either  the  prosecution  or  the defendant subsequently learns of
     3  additional material or information which it would have been under a duty
     4  to disclose pursuant to any provisions of this article at the time of  a
     5  previous discovery obligation or discovery order, it shall expeditiously
     6  notify  the other party and disclose the additional material or informa-
     7  tion  as  required  for  initial  discovery  under  this  article.  This
     8  provision  also  requires  expeditious  disclosure by the prosecution of
     9  material or information that became relevant to the case or discoverable
    10  based  upon reciprocal discovery received from the defendant pursuant to
    11  subdivision four of section 245.20 of this article.
    12  § 245.65 Work product.
    13    This article does not authorize discovery by a party of those portions
    14  of records, reports, correspondence, memoranda, or internal documents of
    15  the adverse party which are only the legal research, opinions,  theories
    16  or  conclusions  of  the adverse party or its attorney or the attorney's
    17  agents, or of statements of a defendant, written or recorded  or  summa-
    18  rized  in any writing or recording, made to the attorney for the defend-
    19  ant or the attorney's agents.
    20  § 245.70 Protective orders.
    21    1. Any discovery subject to protective order. Upon a showing  of  good
    22  cause by either party, the court may at any time order that discovery or
    23  inspection  of any kind of material or information under this article be
    24  denied, restricted, conditioned or deferred, or make such other order as
    25  is appropriate. The court may impose as a condition on  discovery  to  a
    26  defendant that the material or information to be discovered be available
    27  only  to counsel for the defendant; or,  alternatively, that counsel for
    28  the defendant, and persons employed by the attorney or appointed by  the
    29  court  to  assist  in  the  preparation  of  a defendant's case, may not
    30  disclose physical copies of the discoverable documents to a defendant or
    31  to anyone else, provided that  the  prosecution  affords  the  defendant
    32  access  to  inspect  redacted  copies of the discoverable documents at a
    33  supervised location that provides regular and reasonable hours for  such
    34  access,  such  as  a  prosecutor's  office,  police station, facility of
    35  detention, or court. The court may permit a party  seeking or opposing a
    36  protective order under this section,  or  another  affected  person,  to
    37  submit  papers  or testify on the record ex parte or in camera. Any such
    38  papers and a transcript of  such  testimony  may  be  sealed  and  shall
    39  constitute  a part of the record on appeal. This section does not  alter
    40  the allocation of the burden of proof with regard to matters  at  issue,
    41  including privilege.
    42    2.  Modification of time periods for discovery. Upon motion of a party
    43  in an individual  case, the court may alter the time periods for discov-
    44  ery imposed by this article upon a showing of good cause.
    45    3. Prompt hearing. Upon request for  a  protective  order,  the  court
    46  shall  conduct  an  appropriate  hearing  within  three business days to
    47  determine whether good cause has been shown and when  practicable  shall
    48  render  decision expeditiously. Any materials submitted and a transcript
    49  of the proceeding may be sealed and  shall  constitute  a  part  of  the
    50  record on appeal.
    51    4.  Showing  of good cause. Good cause under this section may include:
    52  constitutional  rights or limitations; danger to the integrity of  phys-
    53  ical  evidence;  a  substantial  risk  of physical   harm, intimidation,
    54  economic reprisal, bribery or unjustified annoyance or embarrassment  to
    55  any  person; a substantial risk of an adverse effect upon the legitimate
    56  needs of law enforcement,  including the protection of the confidential-

        A. 4360--A                         12
 
     1  ity of informants; danger to any person stemming from factors such as  a
     2  defendant's   gang   affiliation,  prior  history  of  interfering  with
     3  witnesses, or threats or  intimidating  actions  directed  at  potential
     4  witnesses;  or  other similar factors that also  outweigh the usefulness
     5  of the discovery.
     6    5. Successor counsel or pro se defendant. In cases in which the attor-
     7  ney-client  relationship is terminated prior to trial  for  any  reason,
     8  any material or information disclosed  subject to a condition that it be
     9  available only to counsel for the defendant, or limited in dissemination
    10  by  protective  order  or otherwise, shall be provided only to successor
    11  counsel for the defendant under the same condition or conditions  or  be
    12  returned  to  the prosecution, unless the court rules otherwise for good
    13  cause shown or the prosecutor gives written consent.  Any  work  product
    14  derived  from  such material or information shall not be provided to the
    15  defendant, unless the court rules  otherwise  or  the  prosecutor  gives
    16  written consent. If the defendant is acting as his  or her own attorney,
    17  the  court  may  regulate  the  time,  place and manner of access to any
    18  discoverable material or information; and it may as appropriate  appoint
    19  persons  to  assist the defendant in the investigation or preparation of
    20  the case. Upon motion or application of a defendant acting as his or her
    21  own attorney, the court may at any time modify or vacate  any  condition
    22  or  restriction  relating to access to discoverable material or informa-
    23  tion, for good cause  shown.
    24    6. Expedited review of adverse ruling. (a) A party that has unsuccess-
    25  fully sought, or unsuccessfully opposed the granting  of,  a  protective
    26  order under this section relating to the name, address, contact informa-
    27  tion  or  statements  of  a  person  may obtain expedited review of that
    28  ruling by an individual justice of the intermediate appellate  court  to
    29  which  an  appeal  from  a  judgment  of conviction in the case would be
    30  taken.
    31    (b) Such review shall be  sought  within  two  business  days  of  the
    32  adverse  or  partially adverse ruling, by order to show cause filed with
    33  the intermediate appellate court. The order to show cause shall in addi-
    34  tion be timely served on the lower court and on the opposing party,  and
    35  shall  be  accompanied  by a sworn affirmation stating in good faith (i)
    36  that the ruling affects  substantial interests, and (ii)  that  diligent
    37  efforts  to  reach  an accommodation of the underlying discovery dispute
    38  with opposing counsel failed or  that  no  accommodation  was  feasible;
    39  except  that  service  on  the opposing party, and a statement regarding
    40  efforts to reach an accommodation, are unnecessary  where  the  opposing
    41  party  was  not made aware of the application for a protective order and
    42  good cause exists for omitting service of the order to show cause on the
    43  opposing party. The lower court's  order  subject  to  review  shall  be
    44  stayed until the appellate justice renders  decision.
    45    (c)  The  assignment of the individual appellate justice, and the mode
    46  of and procedure for the review, are determined by rules of the individ-
    47  ual appellate courts. The appellate justice may  consider  any  relevant
    48  and  reliable  information  bearing  on the issue, and may dispense with
    49  written briefs other than supporting and opposing  materials  previously
    50  submitted  to  the  lower court. The appellate justice may dispense with
    51  the issuance of a written opinion in rendering his or her decision,  and
    52  when  practicable  shall  render decision expeditiously. Such review and
    53  decision shall not affect the right of  a  defendant,  in  a  subsequent
    54  appeal  from  a  judgment  of  conviction,  to claim as error the ruling
    55  reviewed.

        A. 4360--A                         13
 
     1    7. Compliance with protective order. Any protective order issued under
     2  this article is a mandate of the court for purposes of  the  offense  of
     3  criminal  contempt  in  subdivision three of section 215.50 of the penal
     4  law.
     5  § 245.75 Waiver of discovery by defendant.
     6    A  defendant  who  does  not seek discovery from the prosecution under
     7  this article shall so   notify the prosecution  and  the  court  at  the
     8  defendant's  arraignment  on  an indictment, superior court information,
     9  prosecutor's information, information,  or  simplified  information,  or
    10  expeditiously  thereafter but before receiving discovery from the prose-
    11  cution pursuant to  subdivision one of section 245.20 of  this  article,
    12  and the defendant need not provide discovery to the prosecution pursuant
    13  to  subdivision  four of section 245.20 and section 245.60 of this arti-
    14  cle.  A waiver shall be in writing and signed by the defendant and coun-
    15  sel for the defendant. Such a   waiver does not  alter  or  in  any  way
    16  affect  the  procedures,  obligations  or  rights  set forth in sections
    17  250.10, 250.20 and 250.30 of this title,  or  otherwise  established  or
    18  required  by law.  The prosecution may not condition a guilty plea offer
    19  on the defendant's execution of a waiver under this section.
    20  § 245.80 Remedies or sanctions for non-compliance.
    21    1. Need for remedy or sanction. (a) When material  or  information  is
    22  discoverable  under  this  article but is disclosed belatedly, the court
    23  shall impose an appropriate remedy or sanction if the party entitled  to
    24  disclosure  shows  that  it  was  prejudiced. Regardless of a showing of
    25  prejudice the party entitled to disclosure  shall  be  given  reasonable
    26  time to prepare and respond to the new material.
    27    (b)  When  material  or information is discoverable under this article
    28  but cannot be disclosed because it has been lost or destroyed, the court
    29  shall impose an appropriate remedy or sanction if the party entitled  to
    30  disclosure  shows that the lost or destroyed material may have contained
    31  some information relevant to a contested issue. The  appropriate  remedy
    32  or  sanction  is    that which is proportionate to the potential ways in
    33  which the lost or destroyed material  reasonably could have been helpful
    34  to the party entitled to disclosure.
    35    2. Available remedies or sanctions. For failure  to  comply  with  any
    36  discovery  order  imposed  or issued pursuant to this article, the court
    37  may make a further order for discovery, grant a continuance, order  that
    38  a  hearing  be  reopened,  order  that  a witness be called or recalled,
    39  instruct the jury that it may draw an adverse  inference  regarding  the
    40  non-compliance, preclude or strike a witness's testimony or a portion of
    41  a  witness's  testimony,  admit or exclude evidence,   order a mistrial,
    42  order the dismissal of all or some of the charges, or  make  such  other
    43  order as it deems just under the circumstances; except that any sanction
    44  against  the defendant shall comport with the defendant's constitutional
    45  right to present a defense, and  precluding  a  defense  witness    from
    46  testifying shall be permissible only upon a finding that the defendant's
    47  failure  to  comply   with the discovery obligation or order was willful
    48  and motivated by a desire to obtain a tactical  advantage.
    49    3. Consequences of non-disclosure of statement  of  testifying  prose-
    50  cution witness. The failure of the prosecutor or any agent of the prose-
    51  cutor  to  disclose  any  written or recorded statement made by a prose-
    52  cution witness which relates to the  subject  matter  of  the  witness's
    53  testimony  shall  not  constitute  grounds  for any court to order a new
    54  pre-trial hearing or set aside  a  conviction,  or  reverse,  modify  or
    55  vacate  a  judgment  of  conviction,  in the absence of a showing by the
    56  defendant that there is a reasonable possibility that the non-disclosure

        A. 4360--A                         14
 
     1  materially contributed to the result of the trial or  other  proceeding;
     2  provided,  however,  that nothing in this  section shall affect or limit
     3  any right the defendant may have to a reopened  pre-trial  hearing  when
     4  such statements were disclosed before the close of evidence at trial.
     5  § 245.85 Admissibility of discovery.
     6    The  fact  that  a party has indicated during the discovery process an
     7  intention to offer specified evidence or to call a specified witness  is
     8  not  admissible  in evidence or grounds for adverse comment at a hearing
     9  or a trial.
    10    § 3. Subdivision 3 of section 610.20 of the criminal procedure law  is
    11  amended and a new subdivision 4 is added to read as follows:
    12    3.  An attorney for a defendant in a criminal action or proceeding, as
    13  an  officer  of  a  criminal  court, may issue a subpoena of such court,
    14  subscribed by himself, for the attendance in such court of  any  witness
    15  whom the defendant is entitled to call in such action or proceeding.  An
    16  attorney  for  a  defendant  may not issue a subpoena duces tecum of the
    17  court directed to any department, bureau or agency of the state or of  a
    18  political subdivision thereof, or to any officer or representative ther-
    19  eof,  unless the subpoena is endorsed by the court and provides at least
    20  three days for the production of the requested materials. In the case of
    21  an emergency, the  court  may  by  order  dispense  with  the  three-day
    22  production  period.  Such a subpoena duces tecum may be issued in behalf
    23  of a defendant upon order of a court pursuant to the rules applicable to
    24  civil cases as provided in section twenty-three  hundred  seven  of  the
    25  civil practice law and rules.
    26    4.  The showing required to sustain any subpoena under this section is
    27  that the  testimony or evidence sought is reasonably likely to be  rele-
    28  vant and material to the  proceedings, and the subpoena is not overbroad
    29  or unreasonably burdensome.
    30    §  4. Section 65.20 of the criminal procedure law, as added by chapter
    31  505 of the laws of 1985, subdivision 2 as added, the  opening  paragraph
    32  of  subdivision  10 as amended and subdivisions 3, 4, 5, 6, 7, 8, 9, 10,
    33  11, 12 and 13 as renumbered by chapter 548 of the laws of 2007, subdivi-
    34  sion 7 and paragraph (k) of subdivision 10 as amended by chapter 320  of
    35  the laws of 2006 and subdivisions 11 and 12 as amended by chapter 455 of
    36  the laws of 1991, is amended to read as follows:
    37  § 65.20 Closed-circuit television; procedure for application and grounds
    38              for determination.
    39    1.  Prior  to  the commencement of a criminal proceeding; other than a
    40  grand jury proceeding, either party may apply to the court for an  order
    41  declaring that a child witness is vulnerable.
    42    2.  A  child  witness should be declared vulnerable when the court, in
    43  accordance with the provisions of this section, determines by clear  and
    44  convincing  evidence  that the child witness would suffer serious mental
    45  or emotional harm that would substantially  impair  the  child  witness'
    46  ability  to communicate with the finder of fact without the use of live,
    47  two-way closed-circuit television.
    48    3. A motion pursuant to subdivision one of this section must  be  made
    49  in writing at least eight days before the commencement of trial or other
    50  criminal  proceeding  upon reasonable notice to the other party and with
    51  an opportunity to be heard.
    52    4. The motion papers must state the basis  for  the  motion  and  must
    53  contain sworn allegations of fact which, if true, would support a deter-
    54  mination by the court that the child witness is vulnerable. Such allega-
    55  tions  may  be based upon the personal knowledge of the deponent or upon

        A. 4360--A                         15
 
     1  information and belief, provided that, in the latter event, the  sources
     2  of such information and the grounds for such belief are stated.
     3    5. The answering papers may admit or deny any of the alleged facts and
     4  may,  in  addition,  contain  sworn  allegations of fact relevant to the
     5  motion, including the rights of the defendant, the need to  protect  the
     6  child  witness  and  the  integrity of the truth-finding function of the
     7  trier of fact.
     8    6. Unless all material facts alleged in support  of  the  motion  made
     9  pursuant  to  subdivision  one  of  this section are conceded, the court
    10  shall, in addition to examining the papers and  hearing  oral  argument,
    11  conduct  an  appropriate  hearing  for the purpose of making findings of
    12  fact essential to the determination of the motion. Except as provided in
    13  subdivision [six] seven of this section, it may  subpoena  or  call  and
    14  examine witnesses, who must either testify under oath or be permitted to
    15  give  unsworn testimony pursuant to subdivision two of section 60.20 and
    16  must authorize the attorneys for the parties to do the same.
    17    7. Notwithstanding any other provision of law, the child  witness  who
    18  is  alleged  to  be  vulnerable  may not be compelled to testify at such
    19  hearing or to submit to any psychological  or  psychiatric  examination.
    20  The failure of the child witness to testify at such hearing shall not be
    21  a  ground  for denying a motion made pursuant to subdivision one of this
    22  section. Prior statements made by the  child  witness  relating  to  any
    23  allegations  of  conduct  constituting an offense defined in article one
    24  hundred thirty of the penal law or incest as defined in section  255.25,
    25  255.26  or  255.27  of such law or to any allegation of words or conduct
    26  constituting an attempt to prevent, impede or deter  the  child  witness
    27  from  cooperating  in  the  investigation  or prosecution of the offense
    28  shall be admissible at such hearing, provided, however, that a  declara-
    29  tion  that  a  child  witness is vulnerable may not be based solely upon
    30  such prior statements.
    31    8. (a) Notwithstanding any of the provisions of article forty-five  of
    32  the  civil practice law and rules, any physician, psychologist, nurse or
    33  social worker who has treated a child witness may testify at  a  hearing
    34  conducted  pursuant to subdivision [five] six of this section concerning
    35  the treatment of such child witness as such  treatment  relates  to  the
    36  issue  presented  at the hearing, provided that any otherwise applicable
    37  statutory privileges concerning communications between the child witness
    38  and such physician, psychologist, nurse or social worker  in  connection
    39  with  such treatment shall not be deemed waived by such testimony alone,
    40  except to the limited extent of permitting the court alone to examine in
    41  camera reports, records or documents, if any, prepared  by  such  physi-
    42  cian, psychologist, nurse or social worker. If upon such examination the
    43  court  determines that such reports, records or documents, or any one or
    44  portion thereof, contain information material and relevant to the  issue
    45  of  whether  the  child witness is a vulnerable child witness, the court
    46  shall disclose such information to both the attorney for  the  defendant
    47  and the district attorney.
    48    (b)  At  any time after a motion has been made pursuant to subdivision
    49  one of this section, upon the demand of the other party the moving party
    50  must furnish the demanding party with a copy of  any  and  all  of  such
    51  records,  reports  or  other  documents  in the possession of such other
    52  party and must, in addition, supply the court with a copy  of  all  such
    53  reports, records or other documents which are the subject of the demand.
    54  At any time after a demand has been made pursuant to this paragraph, the
    55  moving  party  may demand that property of the same kind or character in
    56  possession of the party that originally made such demand be furnished to

        A. 4360--A                         16

     1  the moving party and, if so furnished, be supplied, in addition, to  the
     2  court.
     3    9.  (a) Prior to the commencement of the hearing conducted pursuant to
     4  subdivision [five] six of this section,  the  district  attorney  shall,
     5  subject  to  a protective order, comply with the provisions of paragraph
     6  (c) of subdivision one of section [240.45] 245.20  of  this  chapter  as
     7  they  concern  any witness whom the district attorney intends to call at
     8  the hearing and the child witness.
     9    (b) Before a defendant calls a witness at  such  hearing,  he  or  she
    10  must,  subject  to  a  protective  order,  comply with the provisions of
    11  subdivision [two] four of section [240.45] 245.20  of  this  chapter  as
    12  they  concern  all  the  witnesses the defendant intends to call at such
    13  hearing.
    14    10. The court may consider, in determining whether there  are  factors
    15  which  would  cause  the  child  witness  to  suffer  serious  mental or
    16  emotional harm, a finding that any one or more of the following  circum-
    17  stances have been established by clear and convincing evidence:
    18    (a) The manner of the commission of the offense of which the defendant
    19  is  accused was particularly heinous or was characterized by aggravating
    20  circumstances.
    21    (b) The child witness is particularly young or otherwise  particularly
    22  subject  to psychological harm on account of a physical or mental condi-
    23  tion which existed before the alleged commission of the offense.
    24    (c) At the time of the alleged offense, the defendant occupied a posi-
    25  tion of authority with respect to the child witness.
    26    (d) The offense or offenses charged were part of an ongoing course  of
    27  conduct  committed  by  the  defendant against the child witness over an
    28  extended period of time.
    29    (e) A deadly weapon or dangerous instrument was allegedly used  during
    30  the commission of the crime.
    31    (f) The defendant has inflicted serious physical injury upon the child
    32  witness.
    33    (g)  A  threat,  express or implied, of physical violence to the child
    34  witness or a third person if the child witness were to report the  inci-
    35  dent  to  any  person  or communicate information to or cooperate with a
    36  court, grand jury, prosecutor, police officer or peace officer  concern-
    37  ing the incident has been made by or on behalf of the defendant.
    38    (h)  A threat, express or implied, of the incarceration of a parent or
    39  guardian of the child witness, the removal of the child witness from the
    40  family or the dissolution of the family of  the  child  witness  if  the
    41  child  witness  were to report the incident to any person or communicate
    42  information to or cooperate with a court, grand jury, prosecutor, police
    43  officer or peace officer concerning the incident has been made by or  on
    44  behalf of the defendant.
    45    (i)  A  witness  other than the child witness has received a threat of
    46  physical violence directed at such witness or to a third person by or on
    47  behalf of the defendant.
    48    (j) The defendant, at the time of the inquiry, (i) is  living  in  the
    49  same  household  with  the  child  witness, (ii) has ready access to the
    50  child witness or (iii) is providing substantial  financial  support  for
    51  the child witness.
    52    (k)  The  child  witness  has previously been the victim of an offense
    53  defined in article one hundred thirty of the  penal  law  or  incest  as
    54  defined in section 255.25, 255.26 or 255.27 of such law.

        A. 4360--A                         17
 
     1    (l)  According to expert testimony, the child witness would be partic-
     2  ularly [suceptible] susceptible to psychological  harm  if  required  to
     3  testify in open court or in the physical presence of the defendant.
     4    11.  Irrespective of whether a motion was made pursuant to subdivision
     5  one of this section, the court, at the request of either party or on its
     6  own motion, may decide that a child witness may be vulnerable  based  on
     7  its own observations that a child witness who has been called to testify
     8  at  a  criminal  proceeding is suffering severe mental or emotional harm
     9  and therefore is physically or mentally unable to testify or to continue
    10  to testify in open court or in the physical presence  of  the  defendant
    11  and that the use of live, two-way closed-circuit television is necessary
    12  to enable the child witness to testify. If the court so decides, it must
    13  conduct  the  same  hearing  that subdivision [five] six of this section
    14  requires when a motion is made  pursuant  to  subdivision  one  of  this
    15  section,  and  it  must  make  findings of fact pursuant to subdivisions
    16  [nine] ten and [eleven] twelve of this section, before determining  that
    17  the child witness is vulnerable.
    18    12. In deciding whether a child witness is vulnerable, the court shall
    19  make  findings of fact which reflect the causal relationship between the
    20  existence of any one or more of the factors  set  forth  in  subdivision
    21  [nine]  ten  of  this  section or other relevant factors which the court
    22  finds are established and the determination that the  child  witness  is
    23  vulnerable.  If the court is satisfied that the child witness is vulner-
    24  able and that, under the facts and circumstances of the particular case,
    25  the  defendant's  constitutional  rights  to  an  impartial  jury  or of
    26  confrontation will not be impaired, it may enter an order  granting  the
    27  application for the use of live, two-way closed-circuit television.
    28    13. When the court has determined that a child witness is a vulnerable
    29  child  witness,  it  shall make a specific finding as to whether placing
    30  the defendant and the child witness in the same room during the testimo-
    31  ny of the child witness will contribute to the likelihood that the child
    32  witness will suffer severe mental or emotional harm. If the court  finds
    33  that placing the defendant and the child witness in the same room during
    34  the  testimony  of  the  child witness will contribute to the likelihood
    35  that the child witness will suffer severe mental or emotional harm,  the
    36  order  entered  pursuant  to subdivision [eleven] twelve of this section
    37  shall direct that the defendant  remain  in  the  courtroom  during  the
    38  testimony of the vulnerable child witness.
    39    § 5. Subdivision 5 of section 200.95 of the criminal procedure law, as
    40  added by chapter 558 of the laws of 1982, is amended to read as follows:
    41    5.  Court  ordered bill of particulars.  Where a prosecutor has timely
    42  served a written refusal pursuant to subdivision four  of  this  section
    43  and upon motion, made in writing, of a defendant, who has made a request
    44  for  a  bill of particulars and whose request has not been complied with
    45  in whole or in part, the court must, to the extent a protective order is
    46  not warranted, order the prosecutor to comply with the request if it  is
    47  satisfied that the items of factual information requested are authorized
    48  to  be  included  in a bill of particulars, and that such information is
    49  necessary to enable the defendant adequately to prepare or  conduct  his
    50  defense  and,  if  the request was untimely, a finding of good cause for
    51  the delay. Where a prosecutor has not timely served  a  written  refusal
    52  pursuant  to  subdivision four of this section the court must, unless it
    53  is satisfied that the people have shown good cause  why  such  an  order
    54  should  not be issued, issue an order requiring the prosecutor to comply
    55  or providing for any other  order  authorized  by  [subdivision  one  of
    56  section 240.70] section 245.80 of this part.

        A. 4360--A                         18

     1    §  6. Paragraph (c) of subdivision 1 of section 255.10 of the criminal
     2  procedure law, as added by chapter 763 of the laws of 1974,  is  amended
     3  to read as follows:
     4    (c)  granting discovery pursuant to article [240] 245; or
     5    § 7. Subdivision 1 of section 255.20 of the Criminal procedure law, as
     6  amended  by  chapter  369  of  the  laws  of 1982, is amended to read as
     7  follows:
     8    1. Except as otherwise expressly provided by law, whether the  defend-
     9  ant is represented by counsel or elects to proceed pro se, all pre-trial
    10  motions  shall  be served or filed within forty-five days after arraign-
    11  ment and before commencement of trial, or within such additional time as
    12  the court may fix upon application of the defendant made prior to  entry
    13  of  judgment.  In  an action in which either (a) material or information
    14  has been disclosed pursuant to paragraph (m) or (n) of  subdivision  one
    15  of  section  245.20,  (b)  an eavesdropping warrant and application have
    16  been furnished pursuant to section 700.70, or (c) a notice of  intention
    17  to  introduce  evidence has been served pursuant to section 710.30, such
    18  period shall be extended until forty-five days after the  last  date  of
    19  such  service.    If the defendant is not represented by counsel and has
    20  requested an adjournment to obtain counsel or to have counsel  assigned,
    21  such  forty-five day period shall commence on the date counsel initially
    22  appears on defendant's behalf.
    23    § 8. Section 340.30 of the criminal procedure law is amended  to  read
    24  as follows:
    25  § 340.30 Pre-trial discovery and notices of defenses.
    26    The  provisions  of article two hundred [forty] forty-five, concerning
    27  pre-trial discovery by a defendant under indictment in a superior court,
    28  and article two hundred fifty, concerning pre-trial notice to the people
    29  by a defendant under indictment in  a  superior  court  who  intends  to
    30  advance  a  trial defense of mental disease or defect or of alibi, apply
    31  to a prosecution of an information in a local criminal court.
    32    § 9. Subdivision 14 of section 400.27 of the criminal  procedure  law,
    33  as  added  by  chapter  1  of  the  laws  of 1995, is amended to read as
    34  follows:
    35    14. (a) At a reasonable time prior to the sentencing proceeding  or  a
    36  mental retardation hearing:
    37    [(i)] the prosecutor shall, unless previously disclosed and subject to
    38  a  protective  order, make available to the defendant the statements and
    39  information specified in subdivision one of section [240.45]  245.20  of
    40  this  part  and make available for inspection, photographing, copying or
    41  testing the property specified in subdivision one  of  section  [240.20;
    42  and
    43    (ii) the defendant shall, unless previously disclosed and subject to a
    44  protective  order,  make available to the prosecution the statements and
    45  information specified in subdivision two  of  section  240.45  and  make
    46  available  for inspection, photographing, copying or testing, subject to
    47  constitutional limitations, the reports, documents  and  other  property
    48  specified in subdivision one of section 240.30] 245.20 of this part.
    49    (b) Where a party refuses to make disclosure pursuant to this section,
    50  the provisions of section [240.35, subdivision one of section 240.40 and
    51  section 240.50] 245.70, 245.75 and/or 245.80 of this part shall apply.
    52    (c)  If,  after  complying  with  the provisions of this section or an
    53  order pursuant thereto, a party finds either before or during a sentenc-
    54  ing  proceeding  or  mental  retardation  hearing,  additional  material
    55  subject to discovery or covered by court order, the party shall promptly
    56  make disclosure or apply for a protective order.

        A. 4360--A                         19
 
     1    (d)  If  the court finds that a party has failed to comply with any of
     2  the provisions of this section, the court may [enter] employ any of  the
     3  [orders]  remedies  or sanctions specified in subdivision one of section
     4  [240.70] 245.80 of this part.
     5    §  10.  The  opening  paragraph  of  paragraph (b) of subdivision 1 of
     6  section 440.30 of the criminal procedure law, as added by chapter 19  of
     7  the laws of 2012, is amended to read as follows:
     8    In  conjunction with the filing or consideration of a motion to vacate
     9  a judgment pursuant to section 440.10 of this  article  by  a  defendant
    10  convicted after a trial, in cases where the court has ordered an eviden-
    11  tiary  hearing  upon  such  motion,  the court may order that the people
    12  produce or make available for inspection property[, as defined in subdi-
    13  vision three of section 240.10 of this part,] in its possession,  custo-
    14  dy,  or control that was secured in connection with the investigation or
    15  prosecution of the defendant upon credible allegations by the  defendant
    16  and  a  finding  by  the court that such property, if obtained, would be
    17  probative to the determination of defendant's actual innocence, and that
    18  the request is reasonable. The court shall deny or limit such a  request
    19  upon  a  finding  that  such  a  request, if granted, would threaten the
    20  integrity or chain of custody of property or the integrity of the  proc-
    21  esses  or  functions of a laboratory conducting DNA testing, pose a risk
    22  of harm, intimidation, embarrassment, reprisal, or  other  substantially
    23  negative  consequences  to any person, undermine the proper functions of
    24  law enforcement including the confidentiality of informants, or  on  the
    25  basis  of  any  other factor identified by the court in the interests of
    26  justice or public safety. The court shall further ensure that any  prop-
    27  erty  produced  pursuant  to  this  paragraph is subject to a protective
    28  order, where appropriate. The court shall deny any request made pursuant
    29  to this paragraph where:
    30    § 11. Subdivision 10 of section 450.10 of the penal law, as  added  by
    31  chapter 795 of the laws of 1984, is amended to read as follows:
    32    10.  Where  there  has been a failure to comply with the provisions of
    33  this section, and where the district attorney does  not  demonstrate  to
    34  the  satisfaction  of  the  court  that  such failure has not caused the
    35  defendant prejudice, the court shall  instruct  the  jury  that  it  may
    36  consider  such  failure  in  determining  the  weight  to  be given such
    37  evidence and may also impose any other sanction set forth in subdivision
    38  one of section [240.70] 245.80 of the criminal procedure law;  provided,
    39  however,  that  unless  the  defendant has convinced the court that such
    40  failure has caused him undue prejudice, the court shall not preclude the
    41  district attorney from introducing into evidence  the  property,  photo-
    42  graphs,  photocopies,  or  other reproductions of the property or, where
    43  appropriate, testimony concerning its value and  condition,  where  such
    44  evidence  is  otherwise  properly authenticated and admissible under the
    45  rules of evidence. Failure to  comply  with  any  one  or  more  of  the
    46  provisions  of  this  section shall not for that reason alone be grounds
    47  for dismissal of the accusatory instrument.
    48    § 12. Section 460.80 of the penal law, as added by chapter 516 of  the
    49  laws of 1986, is amended to read as follows:
    50  § 460.80 Court ordered disclosure.
    51    Notwithstanding  the  provisions of article two hundred [forty] forty-
    52  five of the criminal procedure law, when forfeiture is  sought  pursuant
    53  to section 460.30 of this [chapter] article, the court may order discov-
    54  ery  of  any  property  not  otherwise  disclosed  which is material and
    55  reasonably necessary for preparation by the defendant  with  respect  to
    56  the  forfeiture proceeding pursuant to such section. The court may issue

        A. 4360--A                         20
 
     1  a protective order denying, limiting, conditioning, delaying or regulat-
     2  ing such discovery where a danger to the integrity of physical  evidence
     3  or a substantial risk of physical harm, intimidation, economic reprisal,
     4  bribery  or  unjustified  annoyance or embarrassment to any person or an
     5  adverse effect upon the legitimate needs of law  enforcement,  including
     6  the protection of the confidentiality of informants, or any other factor
     7  or set of factors outweighs the usefulness of the discovery.
     8    §  13.  Subdivision  5 of section 480.10 of the penal law, as added by
     9  chapter 655 of the laws of 1990, is amended to read as follows:
    10    5. In addition to information required to  be  disclosed  pursuant  to
    11  article  two  hundred  [forty] forty-five of the criminal procedure law,
    12  when forfeiture is sought pursuant to this article,  and  following  the
    13  defendant's arraignment on the special forfeiture information, the court
    14  shall  order  discovery of any information not otherwise disclosed which
    15  is material and reasonably necessary for preparation  by  the  defendant
    16  with  respect  to a forfeiture proceeding brought pursuant to this arti-
    17  cle. Such material shall  include  those  portions  of  the  grand  jury
    18  minutes  and  such other information which pertain solely to the special
    19  forfeiture information and shall not include information which  pertains
    20  to  the  criminal charges. Upon application of the prosecutor, the court
    21  may issue a protective order pursuant to section [240.40] 245.70 of  the
    22  criminal  procedure  law  with respect to any information required to be
    23  disclosed pursuant to this subdivision.
    24    § 14. This act shall take effect on the ninetieth day after  it  shall
    25  have become a law; provided, however, the amendments to section 65.20 of
    26  the  criminal  procedure  law made by section four of this act shall not
    27  affect the repeal of such section and shall be  deemed  repealed  there-
    28  with.
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