S06848 Summary:

BILL NOS06848
 
SAME ASSAME AS A07292
 
SPONSORAVELLA
 
COSPNSRHAMILTON, PERALTA, SEPULVEDA, VALESKY
 
MLTSPNSR
 
Rpld Art 240, add Art 245 §§245.10 - 245.90, amd §§255.20, 450.50, 610.20 & 710.30, CP L; amd §§215.11, 215.12, 215.15 & 215.16, Pen L
 
Relates to discovery, pretrial motions, securing attendance of witnesses by subpoena, motion to suppress evidence, and tampering with a witness.
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S06848 Actions:

BILL NOS06848
 
08/09/2017REFERRED TO RULES
01/03/2018REFERRED TO CODES
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S06848 Committee Votes:

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S06848 Floor Votes:

There are no votes for this bill in this legislative session.
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S06848 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6848
 
                               2017-2018 Regular Sessions
 
                    IN SENATE
 
                                     August 9, 2017
                                       ___________
 
        Introduced  by Sens. AVELLA, HAMILTON -- read twice and ordered printed,
          and when printed to be committed to the Committee on Rules
 
        AN ACT to amend the  criminal  procedure  law  and  the  penal  law,  in
          relation  to  discovery,  pretrial  motions,  securing  attendance  of
          witnesses by subpoena, motion to suppress evidence, tampering  with  a
          witness  or  intimidating  a  victim  and to repeal article 240 of the
          criminal procedure law relating to discovery
 
          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 Article 240 of the criminal procedure law is REPEALED.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 Availability of protective orders.
     7          245.20 Phase one discovery obligation of prosecution.
     8          245.30 Phase two discovery obligation of prosecution.
     9          245.40 Reciprocal discovery obligation of the defendant.
    10          245.45 Disclosure of prior misconduct or criminal acts.
    11          245.50 Non-testimonial evidence from the defendant.
    12          245.55 Court  orders  for preservation, access, discovery or DNA
    13                   comparison.
    14          245.60 Diligent effort to ascertain existence  of  material  and
    15                   information.
    16          245.65 Certificates of compliance.
    17          245.70 Court ordered procedures to facilitate compliance.
    18          245.75 Continuing duty to disclose.
    19          245.80 Work product.
    20          245.85 Availability of remedies for violations.
    21          245.90 Admissibility of discovery.
    22  § 245.10 Availability of protective orders.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
        S                                                          LBD03867-01-7

        S. 6848                             2
 
     1    1.  Any  discovery subject to protective order. Upon a showing of good
     2  cause by either party, the court may at any time order that discovery or
     3  inspection of any kind of material or information under this article  be
     4  denied, restricted, conditioned or deferred, or make such other order as
     5  is  appropriate.  The  court may impose as a condition on discovery to a
     6  defendant that the material or information to be discovered be available
     7  only to counsel for the defendant; or, alternatively, that  counsel  for
     8  the  defendant, and persons employed by the attorney or appointed by the
     9  court to assist in the  preparation  of  a  defendant's  case,  may  not
    10  disclose physical copies of the discoverable documents to a defendant or
    11  to  anyone  else,  provided  that  the prosecution affords the defendant
    12  access to inspect redacted copies of the  discoverable  documents  at  a
    13  supervised  location that provides regular and reasonable hours for such
    14  access, such as a  prosecutor's  office,  police  station,  facility  of
    15  detention, or court.  The court may permit a party seeking or opposing a
    16  protective  order  under  this  section,  or another affected person, to
    17  submit papers or testify on the record ex parte or in camera.  Any  such
    18  papers  and  a  transcript  of  such  testimony  may be sealed and shall
    19  constitute a part of the record on appeal. This section does  not  alter
    20  the  allocation  of the burden of proof with regard to matters at issue,
    21  including privilege.
    22    2. Modification of time periods for discovery. Upon motion of a  party
    23  in  an individual case, the court may alter the time periods for discov-
    24  ery imposed by this article upon a showing of good cause.
    25    3. Showing of good cause. Good cause under this  section  may  include
    26  constitutional  rights  or limitations; danger to the integrity of phys-
    27  ical evidence;  a  substantial  risk  of  physical  harm,  intimidation,
    28  economic  reprisal, bribery or unjustified annoyance or embarrassment to
    29  any person; a substantial risk of an adverse effect upon the  legitimate
    30  needs of law enforcement, including the protection of the confidentiali-
    31  ty  of  informants; danger to any person stemming from factors such as a
    32  defendant's  gang  affiliation,  prior  history  of   interfering   with
    33  witnesses,  or  threats  or  intimidating  actions directed at potential
    34  witnesses; or other similar factors that also outweigh the usefulness of
    35  the discovery.
    36    4. Successor counsel or pro se defendant. In cases in which the attor-
    37  ney-client relationship is terminated prior to trial for any reason, any
    38  material or information disclosed subject to  a  condition  that  it  be
    39  available only to counsel for the defendant, or limited in dissemination
    40  by  protective  order  or otherwise, shall be provided only to successor
    41  counsel for the defendant under the same condition or be returned to the
    42  prosecution, unless the court rules otherwise for good  cause  shown  or
    43  the prosecutor gives written consent. Any work product derived from such
    44  material  or  information shall not be provided to the defendant, unless
    45  the court rules otherwise or the prosecutor gives  written  consent.  If
    46  the  defendant is acting as his or her own attorney, the court may regu-
    47  late the time, place and manner of access to any  discoverable  material
    48  or  information; and it may as appropriate appoint persons to assist the
    49  defendant in the investigation or preparation of the case.  Upon  motion
    50  or  application  of  a  defendant acting as his or her own attorney, the
    51  court may at any time modify or  vacate  any  condition  or  restriction
    52  relating  to  access  to  discoverable material or information, for good
    53  cause shown.
    54    5. Expedited review of adverse ruling. (a) A party that has unsuccess-
    55  fully sought, or unsuccessfully opposed the granting  of,  a  protective
    56  order under this section relating to the name, address, contact informa-

        S. 6848                             3
 
     1  tion  or  statements  of  a  person  may obtain expedited review of that
     2  ruling by an individual justice of the intermediate appellate  court  to
     3  which  an  appeal  from  a  judgment  of conviction in the case would be
     4  taken.
     5    (b)  Such  review  shall  be  sought  within  two business days of the
     6  adverse or partially adverse ruling, by order to show cause  filed  with
     7  the intermediate appellate court. The order to show cause shall in addi-
     8  tion  be timely served on the lower court and on the opposing party, and
     9  shall be accompanied by a sworn affirmation stating in  good  faith  (i)
    10  that  the  ruling  affects substantial interests, and (ii) that diligent
    11  efforts to reach an accommodation of the  underlying  discovery  dispute
    12  with  opposing  counsel  failed  or  that no accommodation was feasible;
    13  except that service on the opposing party,  and  a  statement  regarding
    14  efforts  to  reach  an accommodation, are unnecessary where the opposing
    15  party was not made aware of the application for a protective  order  and
    16  good cause exists for omitting service of the order to show cause on the
    17  opposing  party.  The  lower  court's  order  subject to review shall be
    18  stayed until the appellate justice renders decision.
    19    (c) The assignment of the individual appellate justice, and  the  mode
    20  of and procedure for the review, are determined by rules of the individ-
    21  ual  appellate  courts.  The appellate justice may consider any relevant
    22  and reliable information bearing on the issue,  and  may  dispense  with
    23  written  briefs  other than supporting and opposing materials previously
    24  submitted to the lower court. The appellate justice  may  dispense  with
    25  the  issuance of a written opinion in rendering his or her decision, and
    26  when practicable shall render decision expeditiously.  Such  review  and
    27  decision  shall  not  affect  the  right of a defendant, in a subsequent
    28  appeal from a judgment of conviction,  to  claim  as  error  the  ruling
    29  reviewed.
    30    6. Compliance with protective order. Any protective order issued under
    31  this  article  is  a mandate of the court for purposes of the offense of
    32  criminal contempt in subdivision three of section 215.50  of  the  penal
    33  law.
    34  § 245.20 Phase one discovery obligation of prosecution.
    35    1.  Timing  of  phase one discovery for the defendant. The prosecution
    36  shall perform its phase one discovery  obligations  under  this  section
    37  within  fifteen  calendar  days  after the defendant's arraignment on an
    38  indictment, superior court information, prosecutor's information, infor-
    39  mation, or simplified information. Portions of materials claimed  to  be
    40  non-discoverable  may  be withheld pending a determination and ruling of
    41  the court under section 245.10 of this article; but the defendant  shall
    42  be  notified  in writing that information has not been disclosed under a
    43  particular subsection, and the discoverable portions of  such  materials
    44  shall  be  disclosed if practicable. When the discoverable materials are
    45  exceptionally voluminous, the time period in  this  subdivision  may  be
    46  stayed  by up to an additional forty-five calendar days without need for
    47  a motion pursuant to subdivision two of section 245.10 of this  article.
    48  When the prosecutor is engaged in an ongoing trial or does not report to
    49  work  due to a vacation or similar reason during one or more days of the
    50  time period in this subdivision, that time period may be  stayed  by  an
    51  additional  seven  calendar  days  without need for a motion pursuant to
    52  subdivision two of section 245.10 of this article.
    53    2. Phase one  discovery  for  the  defendant.  The  prosecution  shall
    54  disclose to the defendant as part of phase one discovery, and permit the
    55  defendant  to discover, inspect, copy or photograph, each of the follow-

        S. 6848                             4
 
     1  ing items and information when it relates to the subject matter  of  the
     2  case:
     3    (a) All electronically stored police reports and law enforcement agen-
     4  cy  reports that are in the possession, custody or control of the prose-
     5  cution, or persons under the prosecution's direction and control.
     6    (b) All written or recorded statements, and the substance of all  oral
     7  statements,  made by the defendant or a co-defendant to a public servant
     8  engaged in law enforcement activity or to a person then acting under his
     9  or her direction or in cooperation with him or her,  other  than  state-
    10  ments made in the course of the criminal transaction.
    11    (c)  A  list  of  all  tangible  objects  obtained  from, or allegedly
    12  possessed by, the defendant or a co-defendant. The list shall include  a
    13  designation  by  the  prosecutor  as to which objects were physically or
    14  constructively possessed by the defendant and were  recovered  during  a
    15  search  or  seizure  by  a public servant or an agent thereof, and which
    16  tangible objects were recovered by a public servant or an agent  thereof
    17  after  allegedly  being  abandoned  by the defendant. If the prosecution
    18  intends to prove the defendant's possession of any tangible  objects  by
    19  means  of a statutory presumption of possession, it shall designate that
    20  intention as to each such object.  If reasonably practicable,  it  shall
    21  also  designate  the location from which each tangible object was recov-
    22  ered.
    23    (d) The names of, and addresses or adequate alternative contact infor-
    24  mation for, all persons other than law enforcement  personnel  whom  the
    25  prosecutor knows to have evidence or information relevant to any offense
    26  charged  or  to  a potential defense thereto, including a designation by
    27  the prosecutor as to which of those persons may be called as  witnesses.
    28  Information  under  this  subsection relating to any person may be with-
    29  held, and redacted from discovery materials, as provided in  subdivision
    30  three  or four of this section. Information under this subsection relat-
    31  ing to a confidential informant  may  be  withheld,  and  redacted  from
    32  discovery  materials,  without  need  for  a  motion pursuant to section
    33  245.10 of this article; but the defendant shall be notified  in  writing
    34  that  such  information  has  not been disclosed, unless the court rules
    35  otherwise for good cause shown.
    36    (e) The name and work affiliation of  all  law  enforcement  personnel
    37  whom  the  prosecutor  knows to have evidence or information relevant to
    38  any offense charged or to a potential defense thereto. Information under
    39  this subsection relating to undercover personnel may  be  withheld,  and
    40  redacted from discovery materials, without need for a motion pursuant to
    41  section  245.10  of this article; but the defendant shall be notified in
    42  writing that such information has not been disclosed, unless  the  court
    43  rules otherwise for good cause shown.
    44    (f)  When written and recorded statements are in the possession of the
    45  prosecution (not solely in the  possession  of  police  or  another  law
    46  enforcement  agency),  all statements, written or recorded or summarized
    47  in any writing or recording, made by persons who have evidence or infor-
    48  mation relevant to any offense charged or to a potential defense  there-
    49  to.  Statements  solely  in  the  possession  of  police  or another law
    50  enforcement agency at the time of phase one discovery  are  discoverable
    51  under  paragraph  (c) of subdivision two of section 245.30 of this arti-
    52  cle.
    53    (g) When it is known to the prosecution (not solely known to police or
    54  another law enforcement agency), all evidence and  information,  whether
    55  or not admissible or recorded in tangible form, that tends to (i) excul-
    56  pate  the  defendant;  (ii) mitigate the defendant's culpability as to a

        S. 6848                             5
 
     1  charged offense; (iii) support a potential defense to a charged offense;
     2  (iv) provide a basis for a motion to suppress evidence on constitutional
     3  grounds; (v) significantly impugn the credibility of an important prose-
     4  cution  witness,  informant  or  evidence;  or (vi) mitigate punishment.
     5  Favorable evidence and information known solely to police or another law
     6  enforcement agency at the time of phase one  discovery  is  discoverable
     7  under  paragraph  (d) of subdivision two of section 245.30 of this arti-
     8  cle. The prosecution shall disclose evidence or information  under  this
     9  subsection  expeditiously  upon  its receipt by the prosecutor, notwith-
    10  standing the otherwise-applicable time periods for  disclosure  in  this
    11  article.
    12    (h)  Whether  a  search  warrant  has  been executed and all documents
    13  relating thereto, including but not limited to the warrant, the  warrant
    14  application,  supporting  affidavits, a police inventory of all property
    15  seized under the warrant, and a transcript of  all  testimony  or  other
    16  oral communications offered in support of the warrant application.
    17    (i)  The  approximate  date, time and place of the offense or offenses
    18  charged and of the defendant's arrest.
    19    3. Prosecutor's option to restrict disclosure of  contact  information
    20  by  arranging witness interview. Within the prosecutor's discretion, the
    21  address, telephone number or similar contact information for any  person
    22  whose  name is disclosed pursuant to paragraph (d) of subdivision two of
    23  this section may be withheld, and redacted from other discovery  materi-
    24  als,  without need for a motion pursuant to section 245.10 of this arti-
    25  cle, if the prosecutor makes the person available  to  counsel  for  the
    26  defendant for an in-person interview within the time period specified in
    27  subdivision  one  of this section.  In lieu of an in-person interview, a
    28  telephone interview may be used where arranging an  in-person  interview
    29  is  not  reasonably practicable or the person declines to participate in
    30  an in-person interview; but law enforcement personnel shall not express-
    31  ly or implicitly encourage a person to  decline  to  participate  in  an
    32  in-person  interview. This subdivision does not create any right for the
    33  defendant personally to attend or to participate in such  an  interview.
    34  The  prosecution  shall provide counsel for the defendant with the other
    35  materials discoverable under subdivision two of this  section  prior  to
    36  such an interview.
    37    4.  Prosecutor's  option to restrict disclosure of contact information
    38  in violent felony cases. (a) Where  the  defendant  is  charged  with  a
    39  violent  felony offense, within the prosecutor's discretion the address,
    40  telephone number or similar contact information  for  any  person  whose
    41  name  is  disclosed pursuant to paragraph (d) of subdivision two of this
    42  section may be withheld, and redacted from  other  discovery  materials,
    43  without  need  for  a motion pursuant to section 245.10 of this article;
    44  except that a list of the  addresses  or  adequate  alternative  contact
    45  information  for persons whose information has been withheld or redacted
    46  shall be separately provided to counsel for the defendant in a  document
    47  clearly  marked  as  confidential, unless a protective order pursuant to
    48  section 245.10 of this article is issued by the  court  for  good  cause
    49  shown.  In  addition discovery of this information may be conditioned on
    50  the defendant's personal consent, given in open court in the presence of
    51  the court at arraignment or at another time, to the use of the confiden-
    52  tiality procedure set forth in this subdivision. The court shall specif-
    53  ically caution the defendant, in the colloquy about use of  this  proce-
    54  dure,   concerning   the  offenses  of  tampering  with  a  witness  and
    55  intimidating a victim or witness in article two hundred fifteen  of  the
    56  penal  law. Nothing in this subdivision precludes the court from issuing

        S. 6848                             6
 
     1  a different protective order pursuant to section 245.10 of this  article
     2  for good cause shown.
     3    (b)  When  the confidentiality procedure set forth in this subdivision
     4  is used, the following requirements apply:
     5    (i) Except as provided in subparagraph (ii) of this paragraph, counsel
     6  for the defendant may not disclose  or  permit  to  be  disclosed  to  a
     7  defendant  or  to  anyone else the list described in this subdivision or
     8  its contents, unless specifically permitted to do so by  the  court  for
     9  good  cause  shown  or unless the prosecutor gives written consent.  The
    10  court may allow a party seeking or opposing such permission, or  another
    11  affected  person,  to submit papers or testify on the record ex parte or
    12  in camera. Any such papers and a transcript of  such  testimony  may  be
    13  sealed  and  shall  constitute a part of the record on appeal. The obli-
    14  gation to maintain confidentiality described in this  subdivision  is  a
    15  mandate of the court for purposes of the offense of criminal contempt in
    16  subdivision three of section 215.50 of the penal law.
    17    (ii)  Notwithstanding  subparagraph (i) of this paragraph, counsel for
    18  the defendant may disclose or permit to be disclosed the listed  contact
    19  information  for a potential witness to persons employed by the attorney
    20  or to persons appointed by the court to assist in the  investigation  or
    21  preparation  of  a  defendant's  case if that disclosure is required for
    22  that investigation or preparation. Persons provided this information  by
    23  the  attorney  shall  be  informed  by the attorney that further dissem-
    24  ination of the information, except as provided by this  subdivision,  is
    25  prohibited.  Within the prosecutor's discretion, discovery of the listed
    26  contact information may be conditioned on service of a written statement
    27  by  counsel  for  the defendant of the names of any employees who may be
    28  provided information pursuant to this  subsection,  and  describing  any
    29  known  prior  connections  between those employees and all defendants in
    30  the case.
    31    (iii) If the defendant is acting as his or her own attorney,  in  lieu
    32  of  use  of the confidentiality procedure set forth in this subdivision,
    33  the court shall consider any arguments of the defendant  relating  to  a
    34  need  for  contact information for a potential witness, and any counter-
    35  vailing arguments of the prosecution or another affected  person.  Where
    36  such  arguments  are  made,  the  court shall then order as to each such
    37  potential witness, as appropriate,  that  adequate  contact  information
    38  either  be  provided  or  be  withheld,  or provide for contact with the
    39  potential witness only through persons appointed by the court to  assist
    40  in  the  investigation or preparation of the defendant's case, or impose
    41  any other reasonable restrictions on disclosure.  Expedited review of  a
    42  ruling  under this subparagraph may be sought as provided in subdivision
    43  five of section 245.10 of this article.
    44    (iv) If counsel for the defendant  learns  about  any  intentional  or
    45  unintentional  breach of the confidentiality procedure set forth in this
    46  subdivision that was attributable to conduct of a lawyer for any defend-
    47  ant in the case, or conduct of a person employed by a lawyer in the case
    48  or appointed by the court, he or  she  shall  expeditiously  notify  the
    49  court or the prosecutor.
    50  § 245.30 Phase two discovery obligation of prosecution.
    51    1.  Timing  of  phase two discovery for the defendant. The prosecution
    52  shall perform its phase two discovery  obligations  under  this  section
    53  within  ninety  calendar  days  after  the defendant's arraignment on an
    54  indictment, superior court information, prosecutor's information, infor-
    55  mation, or simplified information. Portions of materials claimed  to  be
    56  non-discoverable  may  be withheld pending a determination and ruling of

        S. 6848                             7
 
     1  the court under section 245.10 of this article; but the defendant  shall
     2  be  notified  in writing that information has not been disclosed under a
     3  particular subsection, and the discoverable portions of  such  materials
     4  shall  be  disclosed if practicable. When the discoverable materials are
     5  exceptionally voluminous, the time period in  this  subdivision  may  be
     6  stayed  by  up  to an additional thirty calendar days without need for a
     7  motion pursuant to subdivision two of section 245.10 of this article.
     8    2. Phase two  discovery  for  the  defendant.  The  prosecution  shall
     9  disclose to the defendant as part of phase two discovery, and permit the
    10  defendant  to discover, inspect, copy or photograph, each of the follow-
    11  ing items and information when it relates to the subject matter  of  the
    12  case  and is in the possession, custody or control of the prosecution or
    13  persons under the prosecution's direction or control:
    14    (a) All transcripts of the testimony of a  person  who  has  testified
    15  before  a  grand  jury,  including but not limited to the defendant or a
    16  co-defendant. If in the exercise of reasonable diligence, and due to the
    17  limited  availability  of  transcription  resources,  a  transcript   is
    18  unavailable  for disclosure within the time period specified in subdivi-
    19  sion one of this section, that period may be stayed by up  to  an  addi-
    20  tional  forty-five  calendar  days without need for a motion pursuant to
    21  section 245.10 of this article; except that the disclosure shall be made
    22  as soon as practicable and not later than thirty calendar days before  a
    23  scheduled  trial  date,  unless an order is obtained pursuant to section
    24  245.10 of this article. When the court is required to review grand  jury
    25  transcripts,  the  prosecution  shall  disclose  them to the court expe-
    26  ditiously upon their receipt  by  the  prosecutor,  notwithstanding  the
    27  otherwise-applicable time periods for disclosure in this article.
    28    (b)  All  police reports and law enforcement agency reports, including
    29  those not electronically stored. Reports previously  disclosed  pursuant
    30  to  paragraph  (a)  of subdivision two of section 245.20 of this article
    31  need not be disclosed again.
    32    (c) All statements, written or recorded or summarized in  any  writing
    33  or  recording, made by persons who have evidence or information relevant
    34  to any offense charged or to  a  potential  defense  thereto,  including
    35  those  that  were  solely  in  the  possession  of police or another law
    36  enforcement agency at the time  of  phase  one  discovery.    Statements
    37  previously  disclosed  pursuant  to  paragraph (f) of subdivision two of
    38  section 245.20 of this article need not be disclosed again.
    39    (d) All evidence and information,  including  that  which  was  solely
    40  known  to  police or other law enforcement agencies at the time of phase
    41  one discovery, and whether or not it is admissible or recorded in tangi-
    42  ble form, that tends to (i) exculpate the defendant; (ii)  mitigate  the
    43  defendant's  culpability as to a charged offense; (iii) support a poten-
    44  tial defense to a charged offense; (iv) provide a basis for a motion  to
    45  suppress  evidence on constitutional grounds; (v) impugn the credibility
    46  of a prosecution  witness,  informant  or  evidence;  or  (vi)  mitigate
    47  punishment.  Evidence  or  information  previously disclosed pursuant to
    48  paragraph (g) of subdivision two of section 245.20 of this article  need
    49  not  be  disclosed  again.  The  prosecution  shall disclose evidence or
    50  information under this subsection expeditiously upon its receipt by  the
    51  prosecutor,  notwithstanding  the  otherwise-applicable time periods for
    52  disclosure in this article.
    53    (e) A summary of all promises, rewards and inducements made to persons
    54  who may be called as witnesses, as well as requests for consideration by
    55  persons who may be called as witnesses,  and  copies  of  all  documents
    56  relevant to a promise, reward or inducement.

        S. 6848                             8
 
     1    (f) All tangible property that the prosecution intends to introduce in
     2  its  case-in-chief  at  trial or a pre-trial hearing. Discovery of items
     3  under this subsection may be conditioned  on  service  of  a  demand  to
     4  produce made by the defendant, if in phase one discovery the prosecution
     5  timely  served  notice  on  the defendant that a demand to produce items
     6  under this subsection would have to be served on the prosecution  within
     7  thirty  days  of that notice. If in the exercise of reasonable diligence
     8  the prosecutor has not formed an intention within the time period speci-
     9  fied in this section that an item under this subsection will  be  intro-
    10  duced at trial or a pre-trial hearing, that period shall be stayed with-
    11  out  need  for a motion pursuant to subdivision two of section 245.10 of
    12  this article; but the disclosure shall be made as  soon  as  practicable
    13  and subject to the continuing duty to disclose in section 245.75 of this
    14  article.
    15    (g)  All  tapes  or  other electronic recordings which the prosecution
    16  intends to introduce at trial or a pre-trial hearing.
    17    (h) All photographs and drawings made or completed by a public servant
    18  engaged in law enforcement activity, or which were made by a person whom
    19  the prosecutor intends to call as a witness  at  trial  or  a  pre-trial
    20  hearing,  or  which  the  prosecution intends to introduce at trial or a
    21  pre-trial hearing.
    22    (i) All photographs, photocopies and reproductions made by or  at  the
    23  direction  of  law  enforcement  personnel  of any property prior to its
    24  release pursuant to section 450.10 of the penal law.
    25    (j) All reports and documents concerning physical or  mental  examina-
    26  tions,  or  scientific  tests or experiments or comparisons, relating to
    27  the criminal action or proceeding which were made by or at  the  request
    28  or direction of a public servant engaged in law enforcement activity, or
    29  which  were  made  by  a person whom the prosecutor intends to call as a
    30  witness at trial or  a  pre-trial  hearing,  or  which  the  prosecution
    31  intends to introduce at trial or a pre-trial hearing.
    32    (k)  Expert  opinion  evidence,  including the name, business address,
    33  current curriculum vitae, and a list  of  publications  of  each  expert
    34  witness  whom  the prosecutor intends to call as a witness at trial or a
    35  pre-trial hearing, and all reports prepared by the expert  that  pertain
    36  to  the  case,  or  if no report is prepared, a written statement of the
    37  facts and opinions to which the expert is  expected  to  testify  and  a
    38  summary  of  the grounds for each opinion. This paragraph does not alter
    39  or in any way affect the procedures, obligations or rights set forth  in
    40  section 250.10 of this title. If in the exercise of reasonable diligence
    41  this  information  is  unavailable for disclosure within the time period
    42  specified in subdivision one of  this  section,  that  period  shall  be
    43  stayed  without  need  for  a  motion pursuant to section 245.10 of this
    44  article; except that the disclosure shall be made as soon as practicable
    45  and not later than sixty calendar days before a  scheduled  trial  date,
    46  unless  an order is obtained pursuant to section 245.10 of this article.
    47  When the prosecution's expert witness is being  called  in  response  to
    48  disclosure  of an expert witness by the defendant, the court shall alter
    49  a scheduled trial date, if necessary, to allow  the  prosecution  thirty
    50  calendar  days  to make the disclosure and the defendant thirty calendar
    51  days to prepare and respond to the new materials.
    52    (l) The results of complete criminal history  record  checks  for  all
    53  defendants and all persons designated as potential prosecution witnesses
    54  pursuant  to  paragraph (d) of subdivision two of section 245.20 of this
    55  article, other than those witnesses who are experts or  law  enforcement
    56  officers.

        S. 6848                             9
 
     1    (m)  When it is known to the prosecution, the existence of any pending
     2  criminal action against all persons designated as potential  prosecution
     3  witnesses pursuant to paragraph (d) of subdivision two of section 245.20
     4  of this article.
     5    (n) In any prosecution alleging a violation of the vehicle and traffic
     6  law, where the defendant is charged by indictment, superior court infor-
     7  mation,  prosecutor's  information,  information, or simplified informa-
     8  tion, the most recent record of inspection, calibration  and  repair  of
     9  machines  and  instruments  utilized to perform any scientific tests and
    10  experiments and the certification certificate, if any, held by the oper-
    11  ator of the machine or instrument, and all  other  disclosures  required
    12  under this article.
    13    (o)  In  any  prosecution  alleging  a violation of sections 156.05 or
    14  156.10 of the penal law, the  time,  place  and  manner  such  violation
    15  occurred.
    16  § 245.40 Reciprocal discovery obligation of the defendant.
    17    1.  Timing  of reciprocal discovery for the prosecution. The defendant
    18  shall perform his or her reciprocal  discovery  obligations  under  this
    19  section  within  thirty calendar days after being served with the prose-
    20  cution's certificate  of  compliance  pursuant  to  subdivision  one  of
    21  section  245.65  of  this  article.  Portions of materials claimed to be
    22  non-discoverable may be withheld pending a determination and  ruling  of
    23  the  court  under  section  245.10  of this article; but the prosecution
    24  shall be notified in writing that information  has  not  been  disclosed
    25  under  a  particular  subsection,  and the discoverable portions of such
    26  materials shall be disclosed if practicable.
    27    2. Reciprocal discovery for  the  prosecution.  The  defendant  shall,
    28  subject  to constitutional limitations, disclose to the prosecution, and
    29  permit the prosecution to discover, inspect, copy or photograph, each of
    30  the following items and information when it is within the defendant's or
    31  counsel for the defendant's possession or control:
    32    (a) The names, known aliases, addresses and birth dates of all persons
    33  other than the defendant whom the defendant intends to call as witnesses
    34  at trial or a pre-trial hearing. Disclosure of this  information  for  a
    35  person  whom  the  defendant  intends  to call as a witness for the sole
    36  purpose of impeaching a prosecution witness is not required until  after
    37  the prosecution witness has testified.
    38    (b)  All  statements, written or recorded or summarized in any writing
    39  or recording, made by all persons other  than  the  defendant  whom  the
    40  defendant  intends to call as witnesses at trial or a pre-trial hearing;
    41  except that disclosure of such statements made  by  a  person  whom  the
    42  defendant  intends to call as a witness for the sole purpose of impeach-
    43  ing a prosecution witness is not required until  after  the  prosecution
    44  witness has testified.
    45    (c) A summary of all promises, rewards and inducements made to persons
    46  whom  the defendant intends to call as witnesses at trial or a pre-trial
    47  hearing, as well as requests for  consideration  by  such  persons,  and
    48  copies of all documents relevant to a promise, reward or inducement.
    49    (d) All tangible property, including but not limited to tapes or other
    50  electronic  recordings  and photographs and drawings, that the defendant
    51  intends to introduce in the defendant's  case-in-chief  at  trial  or  a
    52  pre-trial  hearing.  If  in the exercise of reasonable diligence counsel
    53  for the defendant has not formed an intention  within  the  time  period
    54  specified  in  this  section  that an item under this subsection will be
    55  introduced at trial or a pre-trial hearing, that period shall be  stayed
    56  without  need for a motion pursuant to subdivision two of section 245.10

        S. 6848                            10
 
     1  of this article; but the disclosure shall be made as soon as practicable
     2  and subject to the continuing duty to disclose in section 245.75 of this
     3  article.
     4    (e)  All  reports and documents concerning physical or mental examina-
     5  tions, or scientific tests or  experiments  or  comparisons,  which  the
     6  defendant intends to introduce at trial or a pre-trial hearing, or which
     7  were made by a person whom the defendant intends to call as a witness at
     8  trial or a pre-trial hearing.
     9    (f)  Intended  expert  opinion  evidence, including the name, business
    10  address, current curriculum vitae, and a list of  publications  of  each
    11  expert  witness whom the defendant intends to call as a witness at trial
    12  or a pre-trial hearing, and all reports  prepared  by  the  expert  that
    13  pertain to the case, or if no report is prepared, a written statement of
    14  the  facts and opinions to which the expert is expected to testify and a
    15  summary of the grounds for each opinion. This paragraph does  not  alter
    16  or  in any way affect the procedures, obligations or rights set forth in
    17  section 250.10 of this title. If in the exercise of reasonable diligence
    18  this information is unavailable for disclosure within  the  time  period
    19  specified  in  subdivision  one  of  this  section, that period shall be
    20  stayed without need for a motion pursuant  to  section  245.10  of  this
    21  article; except that the disclosure shall be made as soon as practicable
    22  and  not  later than thirty calendar days before a scheduled trial date,
    23  unless an order is obtained pursuant to section 245.10 of this article.
    24  § 245.45 Disclosure of prior misconduct or criminal acts.
    25    1. Use at trial. Not later than fifteen calendar days before a  sched-
    26  uled  trial date, the prosecution shall disclose to the defendant a list
    27  of all misconduct and criminal acts of the defendant not charged in  the
    28  indictment, superior court information, prosecutor's information, infor-
    29  mation,  or simplified information, which the prosecution intends to use
    30  at trial for purposes of:
    31    (a) Impeaching the credibility of the defendant; or
    32    (b) As substantive proof of any material issue in the case.
    33    2. Notification for what purpose. In addition  the  prosecution  shall
    34  designate  whether  it  intends  to  use each listed act for impeachment
    35  and/or as substantive proof.
    36  § 245.50 Non-testimonial evidence from the defendant.
    37    1. Availability. After the filing of  an  accusatory  instrument,  and
    38  subject to constitutional limitations, the court may, upon motion of the
    39  prosecution  showing probable cause to believe the defendant has commit-
    40  ted the crime, a clear indication that relevant material  evidence  will
    41  be  found,  and  that the method used to secure it is safe and reliable,
    42  require a defendant to provide non-testimonial evidence, including to:
    43    (a) Appear in a lineup;
    44    (b) Speak for identification by a witness or potential witness;
    45    (c) Be fingerprinted;
    46    (d) Pose for photographs not involving reenactment of an event;
    47    (e) Permit the taking of samples of the defendant's blood,  hair,  and
    48  other  materials  of  the defendant's body that involves no unreasonable
    49  intrusion thereof;
    50    (f) Provide specimens of the defendant's handwriting; and
    51    (g) Submit to a reasonable  physical  or  medical  inspection  of  the
    52  defendant's body.
    53    2. Limitations. This section shall not be construed to alter or in any
    54  way  affect  the issuance of a similar court order, as may be authorized
    55  by law, before the filing of an accusatory instrument,  consistent  with
    56  such  rights  as the defendant may derive from the state constitution or

        S. 6848                            11
 
     1  the United States constitution. This section shall not be  construed  to
     2  alter  or  in any way affect the administration of a chemical test where
     3  otherwise authorized. An order pursuant to this section may  be  denied,
     4  limited or conditioned as provided in section 245.10 of this article.
     5  § 245.55 Court orders for preservation, access, discovery or DNA compar-
     6            ison.
     7    1.  Order  to  preserve  evidence. At any time, a party may move for a
     8  court order to any individual, agency or  other  entity  in  possession,
     9  custody  or  control  of items which relate to the subject matter of the
    10  case or are otherwise relevant, requiring that such items  be  preserved
    11  for  a specified period of time. The court shall hear and rule upon such
    12  motions expeditiously. The court may modify or vacate such an order upon
    13  a showing that preservation of particular evidence will  create  signif-
    14  icant  hardship,  on condition that the probative value of that evidence
    15  is preserved by a specified alternative means.
    16    2. Order to grant access to premises. At any time, the  defendant  may
    17  move  for  a  court  order  to any individual, agency or other entity in
    18  possession, custody or control of a crime scene or other  premises  that
    19  relates  to  the  subject  matter  of the case or is otherwise relevant,
    20  requiring that counsel for the defendant be granted prompt  and  reason-
    21  able  access to inspect, photograph or measure that crime scene or those
    22  premises, and that the condition of the crime scene or  premises  remain
    23  unchanged  in  the  interim.  The  court  shall  hear and rule upon such
    24  motions expeditiously. The court may modify or vacate such an order upon
    25  a showing that granting access to a particular crime scene  or  premises
    26  will  create significant hardship, on condition that the probative value
    27  of that location is preserved by a specified alternative means.
    28    3. Discretionary discovery by order of the court.  The  court  in  its
    29  discretion  may,  upon  a  showing  by the defendant that the request is
    30  reasonable and that the defendant is unable without  undue  hardship  to
    31  obtain the substantial equivalent by other means, order the prosecution,
    32  or any individual, agency or other entity subject to the jurisdiction of
    33  the court, to make available for disclosure to the defendant any materi-
    34  al or information which potentially relates to the subject matter of the
    35  case and is reasonably likely to be material. A motion under this subdi-
    36  vision  must be on notice to any person or entity affected by the order.
    37  The court may, upon request of any person  or  entity  affected  by  the
    38  order, modify or vacate the order if compliance would be unreasonable or
    39  will  create  significant hardship. The court may permit a party seeking
    40  or opposing a discretionary order of discovery under  this  subdivision,
    41  or another affected person or entity, to submit papers or testify on the
    42  record  ex  parte or in camera. Any such papers and a transcript of such
    43  testimony may be sealed and shall constitute a part  of  the  record  on
    44  appeal.
    45    4.   DNA   comparison  order.  Where  property  in  the  prosecution's
    46  possession, custody, or control  consists  of  a  deoxyribonucleic  acid
    47  ("DNA")  profile obtained from probative biological material gathered in
    48  connection with the investigation or prosecution of the  defendant,  and
    49  the  defendant  establishes  (a) that such profile complies with federal
    50  bureau of investigation or state requirements, whichever are  applicable
    51  and as such requirements are applied to law enforcement agencies seeking
    52  a  keyboard  search  or  similar comparison, and (b) that the data meets
    53  state DNA index system or national DNA index  system  criteria  as  such
    54  criteria are applied to law enforcement agencies seeking such a keyboard
    55  search  or similar comparison, the court may--upon motion of a defendant
    56  against whom an indictment,  superior  court  information,  prosecutor's

        S. 6848                            12
 
     1  information, information, or simplified information is pending--order an
     2  entity that has access to the combined DNA index system or its successor
     3  system  to  compare  such  DNA profile against DNA databanks by keyboard
     4  searches,  or  a  similar  method  that does not involve uploading, upon
     5  notice to both parties and the entity required to  perform  the  search,
     6  upon  a  showing  by the defendant that such a comparison is material to
     7  the presentation of his or her defense and that the request  is  reason-
     8  able.  For  purposes of this paragraph, a "keyboard search" shall mean a
     9  search of a DNA profile against the databank in which the  profile  that
    10  is searched is not uploaded to or maintained in the databank.
    11  § 245.60 Diligent effort to ascertain existence of material and informa-
    12            tion.
    13    The  prosecutor  shall make a diligent, good faith effort to ascertain
    14  the existence of material or  information  discoverable  under  sections
    15  245.20  or 245.30 of this article and to cause such material or informa-
    16  tion to be made available for discovery where it exists but is not with-
    17  in the prosecutor's possession, custody or control;  provided  that  the
    18  prosecutor shall not be required to obtain by subpoena duces tecum mate-
    19  rial  or  information  which  the  defendant  may  thereby  obtain. This
    20  provision shall not require the prosecutor to ascertain the existence of
    21  witnesses not known to police or another law enforcement agency, or  the
    22  written  or  recorded statements thereof, under paragraph (d) of section
    23  245.20 and paragraph (c) of section 245.30 of this article.
    24  § 245.65 Certificates of compliance.
    25    1. By the prosecution. When the prosecution has provided the discovery
    26  required by sections 245.20 and 245.30 of this article, except  for  any
    27  items  or  information  that  are  the  subject  of an order pursuant to
    28  section 245.10 of this article, it shall serve upon  the  defendant  and
    29  file  with  the court a certificate of compliance. The certificate shall
    30  state  that,  after  exercising  due  diligence  and  making  reasonable
    31  inquiries to ascertain the existence of material and information subject
    32  to  discovery, the prosecutor has disclosed and made available all known
    33  material and information subject to discovery. It  shall  also  identify
    34  the  items  provided.  If  additional discovery is subsequently provided
    35  prior to trial pursuant to section 245.75 of  this  article,  a  supple-
    36  mental certificate shall be served upon the defendant and filed with the
    37  court  identifying  the additional material and information provided. No
    38  adverse consequence to the prosecution or the  prosecutor  shall  result
    39  from  the  filing  of a certificate of compliance in good faith; but the
    40  court may grant a remedy  for  a  discovery  violation  as  provided  in
    41  section 245.85 of this article.
    42    2.  By  the  defendant.  When the defendant has provided all discovery
    43  required by section 245.40 of this article,  except  for  any  items  or
    44  information  that are the subject of an order pursuant to section 245.10
    45  of this article, counsel for the defendant shall serve upon  the  prose-
    46  cution  and file with the court a certificate of compliance. The certif-
    47  icate shall state  that,  after  exercising  due  diligence  and  making
    48  reasonable inquiries to ascertain the existence of material and informa-
    49  tion  subject  to discovery, counsel for the defendant has disclosed and
    50  made available all known material and information subject to  discovery.
    51  It  shall  also  identify the items provided. If additional discovery is
    52  subsequently provided prior to trial pursuant to section 245.75 of  this
    53  article, a supplemental certificate shall be served upon the prosecution
    54  and  filed with the court identifying the additional material and infor-
    55  mation provided. No adverse consequence to the defendant or counsel  for
    56  the  defendant  shall result from the filing of a certificate of compli-

        S. 6848                            13
 
     1  ance in good faith; but the court may grant a  remedy  for  a  discovery
     2  violation as provided in section 245.85 of this article.
     3  § 245.70 Court ordered procedures to facilitate compliance.
     4    To  facilitate  compliance with this article, and to reduce or stream-
     5  line litigation of any  disputes  about  discovery,  the  court  in  its
     6  discretion may issue an order:
     7    1.  Requiring  that the prosecutor and counsel for the defendant dili-
     8  gently confer to attempt to reach an accommodation  as  to  any  dispute
     9  concerning discovery prior to seeking a ruling from the court;
    10    2.  Requiring  a  discovery  compliance conference at a specified time
    11  prior to trial between the prosecutor, counsel for all  defendants,  and
    12  the court or its staff;
    13    3.  Requiring  the  prosecution  to  file an additional certificate of
    14  compliance that states that the prosecutor and/or an  appropriate  named
    15  agent  has  made  reasonable  inquiries of all police officers and other
    16  persons who have participated in investigating or  evaluating  the  case
    17  about  the  existence  of  any  favorable evidence or information within
    18  paragraph (d) of subdivision two of  section  245.30  of  this  article,
    19  including  such  evidence or information that was not reduced to writing
    20  or otherwise memorialized or preserved as evidence,  and  has  disclosed
    21  any such information to the defendant; and/or
    22    4.  Requiring  other  measures  or  proceedings designed to carry into
    23  effect the goals of this article.
    24  § 245.75 Continuing duty to disclose.
    25    If either the prosecution or  the  defendant  subsequently  learns  of
    26  additional material or information which it would have been under a duty
    27  to  disclose pursuant to any provisions of this article at the time of a
    28  previous discovery obligation or discovery order, it shall expeditiously
    29  notify the other party and disclose the additional material or  informa-
    30  tion  as  required  for  initial  discovery  under  this  article.  This
    31  provision also requires expeditious disclosure  by  the  prosecution  of
    32  material or information that became relevant to the case or discoverable
    33  based  upon reciprocal discovery received from the defendant pursuant to
    34  section 245.40 of this article.
    35  § 245.80 Work product.
    36    This article does not authorize discovery by a party of those portions
    37  of records, reports, correspondence, memoranda, or internal documents of
    38  the adverse party which are only the legal research, opinions,  theories
    39  or  conclusions  of  the adverse party or its attorney or the attorney's
    40  agents, or of statements of a defendant, written or recorded  or  summa-
    41  rized  in any writing or recording, made to the attorney for the defend-
    42  ant or the attorney's agents.
    43  § 245.85 Availability of remedies for violations.
    44    1. Need for remedy. (a) When material or information  is  discoverable
    45  under this article but is disclosed belatedly, the court shall impose an
    46  appropriate remedy if the party entitled to disclosure shows that it was
    47  significantly  prejudiced.  If  the untimely disclosure occurred because
    48  the party responsible failed to  make  reasonably  diligent  efforts  to
    49  comply  with  this article, the court has discretion to impose an appro-
    50  priate remedy if the party entitled to disclosure shows some  prejudice.
    51  Regardless  of  a  showing of prejudice the party entitled to disclosure
    52  shall be given reasonable time to prepare and respond to the new materi-
    53  al.
    54    (b) When material or information is discoverable  under  this  article
    55  but cannot be disclosed because it has been lost or destroyed, the court
    56  shall  impose  an appropriate remedy if the party entitled to disclosure

        S. 6848                            14
 
     1  shows that the lost or destroyed material may have contained some infor-
     2  mation relevant to a contested issue. The  appropriate  remedy  is  that
     3  which  is  proportionate  to  the  potential  ways  in which the lost or
     4  destroyed material reasonably could have been helpful to the party enti-
     5  tled to disclosure.
     6    2.  Available remedies. For failure to comply with any discovery order
     7  imposed or issued pursuant to this article, the court may make a further
     8  order for discovery, grant  a  continuance,  order  that  a  hearing  be
     9  reopened,  order that a witness be called or recalled, instruct the jury
    10  that it may draw  an  adverse  inference  regarding  the  noncompliance,
    11  preclude  or  strike  a  witness's testimony or a portion of a witness's
    12  testimony, admit or  exclude  evidence,  order  a  mistrial,  order  the
    13  dismissal  of all or some of the charges, or make such other order as it
    14  deems just under the circumstances; except that any sanction against the
    15  defendant shall comport with the  defendant's  constitutional  right  to
    16  present  a  defense,  and  precluding  a defense witness from testifying
    17  shall be permissible only upon a finding that the defendant's failure to
    18  comply with the discovery obligation or order was willful and  motivated
    19  by a desire to obtain a tactical advantage.
    20    3.  Consequences  of  nondisclosure  of statement of testifying prose-
    21  cution witness. The failure of the prosecutor or any agent of the prose-
    22  cutor to disclose any written or recorded statement  made  by  a  prose-
    23  cution  witness  which  relates  to  the subject matter of the witness's
    24  testimony shall not constitute grounds for any  court  to  order  a  new
    25  pre-trial  hearing  or  set  aside  a  conviction, or reverse, modify or
    26  vacate a judgment of conviction, in the absence  of  a  showing  by  the
    27  defendant that there is a reasonable possibility that the non-disclosure
    28  materially  contributed  to the result of the trial or other proceeding;
    29  provided, however, that nothing in this section shall  affect  or  limit
    30  any  right  the  defendant may have to a reopened pre-trial hearing when
    31  such statements were disclosed before the close of evidence at trial.
    32  §  245.90 Admissibility of discovery.
    33    The fact that a party has indicated during the  discovery  process  an
    34  intention  to offer specified evidence or to call a specified witness is
    35  not admissible in evidence or grounds for adverse comment at  a  hearing
    36  or a trial.
    37    § 3. Subdivision 1 of section 255.20 of the criminal procedure law, as
    38  amended  by  chapter  369  of  the  laws  of 1982, is amended to read as
    39  follows:
    40    1.  Except as otherwise expressly provided by law, whether the defend-
    41  ant is represented by counsel or elects to proceed pro se, all pre-trial
    42  motions shall be served or filed within forty-five days  after  arraign-
    43  ment and before commencement of trial, or within such additional time as
    44  the  court may fix upon application of the defendant made prior to entry
    45  of judgment.  In an action in which either (a) material  or  information
    46  has  been disclosed pursuant to paragraphs (c) or (h) of subdivision two
    47  of section 245.20, (b) an eavesdropping  warrant  and  application  have
    48  been  furnished  pursuant to section 700.70 or (c) a notice of intention
    49  to introduce evidence has been served pursuant to section  710.30,  such
    50  period  shall  be  extended until forty-five days after the last date of
    51  such service.  If the defendant is not represented by  counsel  and  has
    52  requested  an adjournment to obtain counsel or to have counsel assigned,
    53  such forty-five day period shall commence on the date counsel  initially
    54  appears on defendant's behalf.
    55    §  4. Subdivision 8 of section 450.20 of the criminal procedure law is
    56  amended to read as follows:

        S. 6848                            15
 
     1    8. An order suppressing evidence, entered  before  trial  pursuant  to
     2  section  710.20,  or  an order precluding evidence, entered before trial
     3  pursuant to section 710.30; provided that the people file a statement in
     4  the appellate court pursuant to section 450.50.
     5    §  5.  Section 450.50 of the criminal procedure law is amended to read
     6  as follows:
     7  § 450.50 Appeal by people from order suppressing or precluding evidence;
     8             filing of statement in appellate court.
     9    1.  In taking an appeal, pursuant  to  subdivision  eight  of  section
    10  450.20,  to  an intermediate appellate court from an order of a criminal
    11  court suppressing or precluding evidence, the people must file, in addi-
    12  tion to a notice of appeal or, as the  case  may  be,  an  affidavit  of
    13  errors,  a  statement  asserting  that the deprivation of the use of the
    14  evidence ordered suppressed or precluded has rendered  the  sum  of  the
    15  proof  available  to  the people with respect to a criminal charge which
    16  has been filed in the court either (a) insufficient as a matter of  law,
    17  or (b) so weak in its entirety that any reasonable possibility of prose-
    18  cuting such charge to a conviction has been effectively destroyed.
    19    2.    The  taking  of an appeal by the people, pursuant to subdivision
    20  eight of  section  450.20,  from  an  order  suppressing  or  precluding
    21  evidence  constitutes a bar to the prosecution of the accusatory instru-
    22  ment involving the evidence ordered suppressed or precluded, unless  and
    23  until  such  suppression or preclusion order is reversed upon appeal and
    24  vacated.
    25    § 6. Subdivision 3 of section 610.20 of the criminal procedure law  is
    26  amended and a new subdivision 4 is added to read as follows:
    27    3.  An attorney for a defendant in a criminal action or proceeding, as
    28  an  officer  of  a  criminal  court, may issue a subpoena of such court,
    29  subscribed by himself, for the attendance in such court of  any  witness
    30  whom the defendant is entitled to call in such action or proceeding.  An
    31  attorney  for  a  defendant  may not issue a subpoena duces tecum of the
    32  court directed to any department, bureau or agency of the state or of  a
    33  political subdivision thereof, or to any officer or representative ther-
    34  eof,  unless the subpoena is indorsed by the court and provides at least
    35  three days for the production of the requested materials. In the case of
    36  an emergency, the  court  may  by  order  dispense  with  the  three-day
    37  production period.  [Such a subpoena duces tecum may be issued in behalf
    38  of a defendant upon order of a court pursuant to the rules applicable to
    39  civil  cases  as  provided  in section twenty-three hundred seven of the
    40  civil practice law and rules.]
    41    4. The showing required to sustain any subpoena under this section  is
    42  that  the  testimony or evidence sought is reasonably likely to be rele-
    43  vant and material to the proceedings, and the subpoena is not  overbroad
    44  or unreasonably burdensome.
    45    §  7.  Section  710.30  of  the  criminal procedure law, as separately
    46  amended by chapters 8 and 194 of the laws of 1976, is amended to read as
    47  follows:
    48  § 710.30 Motion to suppress evidence; notice to defendant  of  intention
    49             to offer evidence.
    50    1.    Whenever the people intend to offer at a trial (a) evidence of a
    51  statement made by a defendant to a public servant,  which  statement  if
    52  involuntarily  made  would render the evidence thereof suppressible upon
    53  motion pursuant to subdivision three of section 710.20, or (b) testimony
    54  regarding an observation of the defendant either at the time or place of
    55  the commission of the offense or upon some other  occasion  relevant  to
    56  the  case, to be given by a witness who has previously identified him as

        S. 6848                            16
 
     1  such, or (c) tangible objects obtained from the defendant or a place  or
     2  entity  in  which a court may rule that the defendant had standing, they
     3  must serve upon the defendant a notice of such intention, specifying the
     4  evidence intended to be offered. Where notice is given under subdivision
     5  two of this section, such notice shall specify all identification proce-
     6  dures  in  which the witness participated, including photographic proce-
     7  dures, regardless of whether the particular procedure will be offered at
     8  trial.
     9    2.  Such notice must be served within fifteen days  after  arraignment
    10  and  before  trial, and upon such service the defendant must be accorded
    11  reasonable opportunity to move before trial, pursuant to subdivision one
    12  of section 710.40, to suppress the specified evidence.  [For good  cause
    13  shown,  however]  Where  the  people  establish that they acted with due
    14  diligence, the court may permit the people to serve such notice,  there-
    15  after  and in such case it must accord the defendant reasonable opportu-
    16  nity thereafter to make a suppression motion.
    17    3.  In the absence of service of notice upon a defendant as prescribed
    18  in this section, no evidence of a kind specified in subdivision one  may
    19  be  received  against  him upon trial unless he has, despite the lack of
    20  such notice, moved to suppress such evidence and such  motion  has  been
    21  denied  and  the  evidence  thereby rendered admissible as prescribed in
    22  subdivision two of section 710.70.
    23    4. On an appeal from a judgment of conviction, a defendant  who  moved
    24  to  suppress  evidence  after having unsuccessfully sought preclusion of
    25  such evidence under this  section  may  challenge  both  the  denial  of
    26  preclusion and the denial of suppression.
    27    §  8.  Section 215.11 of the penal law, as added by chapter 664 of the
    28  laws of 1982, is amended to read as follows:
    29  § 215.11 Tampering with a witness in the third degree.
    30    A person is guilty of tampering with a witness  in  the  third  degree
    31  when,  knowing  that  a  person  is about to be called as a witness in a
    32  criminal proceeding:
    33    1. He wrongfully compels or attempts to compel such person  to  absent
    34  himself from, or otherwise to avoid or seek to avoid appearing or testi-
    35  fying  at  such proceeding by means of instilling in him a fear that the
    36  actor will cause physical injury to such person or another person; or
    37    2. He wrongfully compels or attempts to compel such  person  to  swear
    38  falsely  by  means of instilling in him a fear that the actor will cause
    39  physical injury to such person or another person.
    40    Tampering with a witness in the third degree is a class [E] D felony.
    41    § 9. Section 215.12 of the penal law, as added by chapter 664  of  the
    42  laws of 1982, is amended to read as follows:
    43  § 215.12 Tampering with a witness in the second degree.
    44    A  person  is  guilty of tampering with a witness in the second degree
    45  when he:
    46    1. Intentionally causes physical injury to a person for the purpose of
    47  obstructing, delaying, preventing or impeding the giving of testimony in
    48  a criminal proceeding by such  person  or  another  person  or  for  the
    49  purpose of compelling such person or another person to swear falsely; or
    50    2.  He  intentionally causes physical injury to a person on account of
    51  such person or another person having testified in a criminal proceeding.
    52    Tampering with a witness in the second degree is a class [D] C felony.
    53    § 10. Section 215.15 of the penal law, as added by chapter 667 of  the
    54  laws of 1985, is amended to read as follows:
    55  § 215.15 Intimidating a victim or witness in the third degree.

        S. 6848                            17

     1    A  person  is  guilty of intimidating a victim or witness in the third
     2  degree when, knowing that another person possesses information  relating
     3  to  a criminal transaction and other than in the course of that criminal
     4  transaction or immediate flight therefrom, he:
     5    1.  Wrongfully  compels  or  attempts  to  compel such other person to
     6  refrain from communicating such information to any  court,  grand  jury,
     7  prosecutor,  police  officer  or peace officer by means of instilling in
     8  him a fear that the actor will  cause  physical  injury  to  such  other
     9  person or another person; or
    10    2.  Intentionally damages the property of such other person or another
    11  person for the purpose of compelling such other person or another person
    12  to refrain from communicating, or on account of  such  other  person  or
    13  another  person having communicated, information relating to that crimi-
    14  nal transaction to any court, grand jury, prosecutor, police officer  or
    15  peace officer.
    16    Intimidating  a victim or witness in the third degree is a class [E] D
    17  felony.
    18    § 11. Section 215.16 of the penal law, as added by chapter 667 of  the
    19  laws of 1985, is amended to read as follows:
    20  § 215.16 Intimidating a victim or witness in the second degree.
    21    A  person  is guilty of intimidating a victim or witness in the second
    22  degree when, other than in the course of that  criminal  transaction  or
    23  immediate flight therefrom, he:
    24    1.  Intentionally  causes  physical  injury  to another person for the
    25  purpose of obstructing, delaying, preventing or  impeding  the  communi-
    26  cation by such other person or another person of information relating to
    27  a  criminal  transaction  to  any  court, grand jury, prosecutor, police
    28  officer or peace officer or for the purpose  of  compelling  such  other
    29  person or another person to swear falsely; or
    30    2.  Intentionally  causes physical injury to another person on account
    31  of such other person or another person having  communicated  information
    32  relating to a criminal transaction to any court, grand jury, prosecutor,
    33  police officer or peace officer; or
    34    3.  Recklessly  causes  physical  injury  to  another person by inten-
    35  tionally damaging the property of such other person or  another  person,
    36  for  the  purpose  of obstructing, delaying, preventing or impeding such
    37  other person or another person from communicating, or on account of such
    38  other person or another person having communicated, information relating
    39  to a criminal transaction to any court, grand jury,  prosecutor,  police
    40  officer or peace officer.
    41    Intimidating a victim or witness in the second degree is a class [D] C
    42  felony.
    43    § 12. This act shall take effect immediately.
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