Bill Text: NY A00556 | 2011-2012 | General Assembly | Introduced
Bill Title: Amends numerous provisions of law regarding discovery procedure and requirements in criminal cases including provisions for discovery by defendant of arrest and complaint reports and discovery by the prosecutor; eliminates demand discovery; requires prosecutor to make available to defense within 15 days of arraignment materials and information and to make a good faith effort to ascertain existence of discoverable material; makes provisions on protective orders.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-04 - referred to codes [A00556 Detail]
Download: New_York-2011-A00556-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
556
2011-2012 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 5, 2011
___________
Introduced by M. of A. LENTOL -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, in relation to discovery
procedure and requirements and to repeal subdivision 1 of section
240.10, section 240.45 and section 240.80 of such law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 9 of section 65.20 of the criminal procedure
2 law, as added by chapter 505 of the laws of 1985 and renumbered by chap-
3 ter 548 of the laws of 2007, is amended to read as follows:
4 9. (a) Prior to the commencement of the hearing conducted pursuant to
5 subdivision five of this section, the district attorney shall, subject
6 to a protective order, comply with the provisions of subdivision [one]
7 TWO of section [240.45] 240.20 of this chapter as they concern any
8 witness whom the district attorney intends to call at the hearing and
9 the child witness.
10 (b) Before a defendant calls a witness at such hearing, he or she
11 must, subject to a protective order, comply with the provisions of
12 subdivision two of section [240.45] 240.30 of this chapter as they
13 concern all the witnesses the defendant intends to call at such hearing.
14 S 2. Subdivision 1 of section 240.10 of the criminal procedure law is
15 REPEALED and subdivisions 2, 3 and 4 are renumbered subdivisions 1, 2
16 and 3.
17 S 3. The criminal procedure law is amended by adding a new section
18 240.15 to read as follows:
19 S 240.15 DISCOVERY BY DEFENDANT OF ARREST AND COMPLAINT REPORTS.
20 UPON ARRAIGNMENT, THE PROSECUTOR SHALL, SUBJECT TO A PROTECTIVE ORDER
21 PURSUANT TO SECTION 240.50 OF THIS ARTICLE, PROVIDE THE DEFENDANT WITH A
22 COPY OF ANY LAW ENFORCEMENT REPORT DESCRIBING THE ARREST AND PROCESSING
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03458-01-1
A. 556 2
1 OF THE DEFENDANT AND ANY OFFICIAL LAW ENFORCEMENT REPORT BY WHICH A
2 CRIME IS REPORTED TO THE POLICE.
3 S 4. The section heading and the opening paragraph of subdivision 1 of
4 section 240.20 of the criminal procedure law, the section heading as
5 added by chapter 412 of the laws of 1979 and the opening paragraph of
6 subdivision 1 as amended by chapter 317 of the laws of 1983, are amended
7 to read as follows:
8 Discovery[; upon demand of] TO THE defendant.
9 Except to the extent protected by court order, [upon a demand to
10 produce by a defendant against whom] WITHIN FIFTEEN DAYS AFTER ARRAIGN-
11 MENT ON an indictment, superior court information, prosecutor's informa-
12 tion, information, or simplified information charging a misdemeanor [is
13 pending], the prosecutor shall disclose to the defendant and make avail-
14 able for inspection, photographing, copying or testing, the following
15 property:
16 S 5. Paragraph (h) of subdivision 1 of section 240.20 of the criminal
17 procedure law, as added by chapter 412 of the laws of 1979 and as relet-
18 tered by chapter 795 of the laws of 1984, is amended to read as follows:
19 (h) [Anything] ANY OTHER PROPERTY OR INFORMATION required to be
20 disclosed, prior to trial, to the defendant by the prosecutor, pursuant
21 to the constitution of this state or of the United States.
22 S 6. Subdivision 1 of section 240.20 of the criminal procedure law is
23 amended by adding four new paragraphs (l), (m), (n) and (o) to read as
24 follows:
25 (L) A SCIENTIFIC REPORT OR TESTS WHICH TEND TO NEGATE THE GUILT OF THE
26 DEFENDANT.
27 (M) INFORMATION ABOUT A LINE-UP, SHOW-UP OR OTHER IDENTIFICATION
28 PROCEDURE OR FROM A WITNESS WHICH INDICATES THAT SOMEONE OTHER THAN THE
29 DEFENDANT COMMITTED THE CRIME.
30 (N) INFORMATION ABOUT A LINE-UP, SHOW-UP OR OTHER IDENTIFICATION
31 PROCEDURE AT WHICH AN EYEWITNESS FAILED TO IDENTIFY THE DEFENDANT AS THE
32 PERPETRATOR OF THE CRIME.
33 (O) REPORTS OR INTERVIEWS OF ANY KIND INDICATING THAT A PERSON OR
34 PERSONS OTHER THAN THE DEFENDANT COMMITTED THE CRIME.
35 S 7. Subdivision 2 of section 240.20 of the criminal procedure law is
36 renumbered subdivision 4 and three new subdivisions 2, 3 and 5 are added
37 to read as follows:
38 2. WITHIN FIFTEEN DAYS OF ARRAIGNMENT, THE PROSECUTOR SHALL, SUBJECT
39 TO A PROTECTIVE ORDER, MAKE AVAILABLE TO THE DEFENDANT:
40 (A) ANY WRITTEN OR RECORDED STATEMENT, INCLUDING ANY TESTIMONY BEFORE
41 A GRAND JURY AND AN EXAMINATION VIDEOTAPED PURSUANT TO SECTION 190.32 OF
42 THIS CHAPTER, MADE BY A PERSON WHOM THE PROSECUTOR INTENDS TO CALL AS A
43 WITNESS AT TRIAL, AND WHICH RELATES TO THE SUBJECT MATTER OF THE
44 WITNESS'S TESTIMONY.
45 (B) A RECORD OF JUDGMENT OF CONVICTION OF A WITNESS THE PEOPLE INTEND
46 TO CALL AT TRIAL IF THE RECORD OF CONVICTION IS KNOWN BY THE PROSECUTOR
47 TO EXIST.
48 (C) THE EXISTENCE OF ANY PENDING CRIMINAL ACTION AGAINST A WITNESS THE
49 PEOPLE INTEND TO CALL AT TRIAL, IF THE PENDING CRIMINAL ACTION IS KNOWN
50 BY THE PROSECUTOR TO EXIST.
51 (D) ANY PROMISES OR THREATS TO, OR AGREEMENTS WITH, A WITNESS THE
52 PROSECUTION INTENDS TO CALL AT TRIAL, IF SUCH PROMISE, THREAT OR AGREE-
53 MENT IS RELATED TO THE WITNESS'S TESTIMONY AND IS KNOWN BY THE PROSE-
54 CUTION.
55 (E) THE NAME, ADDRESS AND QUALIFICATIONS OF ANY EXPERT, OTHER THAN AN
56 EXPERT GOVERNED BY SECTION 250.10 OF THIS TITLE, THE PEOPLE INTEND TO
A. 556 3
1 CALL AS A WITNESS AT TRIAL, AS WELL AS A WRITTEN REPORT BY THAT WITNESS
2 SETTING FORTH IN REASONABLE DETAIL THE SUBJECT MATTER ON WHICH THE
3 EXPERT IS EXPECTED TO TESTIFY INCLUDING THE WITNESS'S OPINION AND
4 CONCLUSIONS, IF ANY, AS WELL AS THE BASIS FOR THOSE OPINIONS AND CONCLU-
5 SIONS.
6 THE PROVISIONS OF PARAGRAPHS (B) AND (C) OF THIS SUBDIVISION SHALL NOT
7 BE CONSTRUED TO REQUIRE THE PROSECUTOR TO FINGERPRINT A WITNESS OR
8 OTHERWISE CAUSE THE DIVISION OF CRIMINAL JUSTICE SERVICES OR OTHER LAW
9 ENFORCEMENT AGENCY OR COURT TO ISSUE A REPORT CONCERNING A WITNESS.
10 3. IF AFTER COMPLYING WITH THE PROVISIONS OF THIS SECTION, ANY PROPER-
11 TY OR INFORMATION WHICH IS REQUIRED TO BE DISCLOSED COMES INTO THE
12 POSSESSION OF THE PROSECUTION, THE PROSECUTION SHALL, SUBJECT TO A
13 PROTECTIVE ORDER, PROMPTLY DISCLOSE SUCH PROPERTY OR INFORMATION.
14 5. AT THE COMMENCEMENT OF JURY SELECTION OR IN THE CASE OF A NON-JURY
15 TRIAL, BEFORE SUBMISSION OF EVIDENCE, THE PROSECUTOR SHALL, SUBJECT TO A
16 PROTECTIVE ORDER, MAKE AVAILABLE TO THE DEFENSE ANY WRITTEN OR RECORDED
17 STATEMENT MADE BY A PERSON WHOM THE PROSECUTOR INTENDS TO CALL AT TRIAL
18 AND WHICH RELATES TO THE SUBJECT MATTER OF THE WITNESS'S TESTIMONY,
19 INCLUDING UNREDACTED STATEMENTS PREVIOUSLY DISCLOSED IN REDACTED FORM.
20 S 8. Subdivision 4 of section 240.20 of the criminal procedure law, as
21 added by chapter 412 of the laws of 1979 and renumbered by section seven
22 of this act, is amended to read as follows:
23 4. The prosecutor shall make a diligent, good faith effort to ascer-
24 tain the existence of [demanded] ANY property SUBJECT TO DISCOVERY and
25 to cause such property to be made available for discovery where it
26 exists but is not within the prosecutor's possession, custody or
27 control; provided, that the prosecutor shall not be required to obtain
28 by subpoena duces tecum [demanded] material which the defendant may
29 thereby obtain.
30 S 9. Section 240.30 of the criminal procedure law, as added by chapter
31 412 of the laws of 1979, subdivision 1 as amended by chapter 558 of the
32 laws of 1982 and the opening paragraph of subdivision 1 as amended by
33 chapter 317 of the laws of 1983, is amended to read as follows:
34 S 240.30 Discovery[; upon demand of] TO THE prosecutor.
35 1. Except to the extent protected by court order, upon [a demand to
36 produce] DISCLOSURE by the prosecutor PURSUANT TO SECTION 240.20 OF THIS
37 ARTICLE, a defendant against whom an indictment, superior court informa-
38 tion, prosecutor's information, information, or simplified information
39 charging a misdemeanor is pending shall disclose and make available for
40 inspection, photographing, copying or testing, subject to constitutional
41 limitations:
42 (a) any written report or document, or portion thereof, concerning a
43 physical or mental examination, or scientific test, experiment, or
44 comparisons, made by or at the request or direction of, the defendant,
45 if the defendant intends to introduce such report or document at trial,
46 or if the defendant has filed a notice of intent to proffer psychiatric
47 evidence and such report or document relates thereto, or if such report
48 or document was made by a person, other than defendant, whom defendant
49 intends to call as a witness at trial; and
50 (b) any photograph, drawing, tape or other electronic recording which
51 the defendant intends to introduce at trial.
52 2. AT THE COMMENCEMENT OF JURY SELECTION, THE DEFENDANT SHALL, SUBJECT
53 TO A PROTECTIVE ORDER, MAKE AVAILABLE TO THE PROSECUTOR: (A) ANY WRIT-
54 TEN OR RECORDED STATEMENT MADE BY A PERSON OTHER THAN THE DEFENDANT WHOM
55 THE DEFENDANT INTENDS TO CALL AS A WITNESS AT THE TRIAL, AND WHICH
A. 556 4
1 RELATES TO THE SUBJECT MATTER OF THE WITNESS'S TESTIMONY, INCLUDING
2 UNREDACTED STATEMENTS PREVIOUSLY DISCLOSED IN A REDACTED FORM;
3 (B) A RECORD OF JUDGMENT OF CONVICTION OF A WITNESS, OTHER THAN THE
4 DEFENDANT, THE DEFENDANT INTENDS TO CALL AT TRIAL IF THE RECORD OF
5 CONVICTION IS KNOWN BY THE DEFENDANT TO EXIST;
6 (C) THE EXISTENCE OF ANY PENDING CRIMINAL ACTION AGAINST A WITNESS,
7 OTHER THAN THE DEFENDANT, THE DEFENDANT INTENDS TO CALL AT TRIAL, IF THE
8 PENDING CRIMINAL ACTION IS KNOWN BY THE DEFENDANT TO EXIST;
9 (D) ANY PROMISES OR THREATS TO, OR AGREEMENTS WITH, A WITNESS THE
10 DEFENSE INTENDS TO CALL AT TRIAL, IF SUCH PROMISE, THREAT OR AGREEMENT
11 IS RELATED TO THE WITNESS'S TESTIMONY AND IS KNOWN BY THE CALLING PARTY;
12 AND
13 (E) THE NAME, ADDRESS, AND QUALIFICATIONS OF ANY EXPERT, OTHER THAN AN
14 EXPERT GOVERNED BY SECTION 250.10 OF THIS TITLE, THE DEFENSE INTENDS TO
15 CALL AS A WITNESS AT TRIAL, AS WELL AS A WRITTEN REPORT BY THAT WITNESS
16 SETTING FORTH IN REASONABLE DETAIL THE SUBJECT MATTER ON WHICH THE
17 EXPERT IS EXPECTED TO TESTIFY INCLUDING THE WITNESS'S OPINION AND
18 CONCLUSIONS, IF ANY, AS WELL AS THE BASIS FOR THOSE OPINIONS AND CONCLU-
19 SIONS.
20 3. The defense shall make a diligent good faith effort to make such
21 property available for discovery where it exists but the property is not
22 within its possession, custody or control, provided, that the defendant
23 shall not be required to obtain by subpoena duces tecum [demanded] mate-
24 rial that the prosecutor may thereby obtain.
25 S 10. Section 240.35 of the criminal procedure law, as added by chap-
26 ter 412 of the laws of 1979, is amended to read as follows:
27 S 240.35 Discovery; refusal [of demand] TO DISCLOSE.
28 Notwithstanding the provisions of sections 240.20 and 240.30 OF THIS
29 ARTICLE, the prosecutor or the defendant, as the case may be, may refuse
30 to disclose any information FOR which [he] THAT PARTY reasonably
31 believes [is not discoverable by a demand to produce, pursuant to
32 section 240.20 or section 240.30 as the case may be, or for which he
33 reasonably believes] a protective order would be warranted. Such
34 refusal shall be made in a writing, which shall set forth the grounds of
35 such belief as fully as possible, consistent with the objective of the
36 refusal. The writing shall be served upon the [demanding] OTHER party
37 and a copy shall be filed with the court.
38 S 11. Section 240.40 of the criminal procedure law, as added by chap-
39 ter 412 of the laws of 1979, subdivision 1 as amended by chapter 558 of
40 the laws of 1982, the opening paragraphs of subdivisions 1 and 2 as
41 amended by chapter 317 of the laws of 1983 and the closing paragraph of
42 subdivision 2 as amended by chapter 481 of the laws of 1983, is amended
43 to read as follows:
44 S 240.40 Discovery; upon court order.
45 1. Upon motion of a defendant against whom an indictment, superior
46 court information, prosecutor's information, information, or simplified
47 information charging a misdemeanor is pending, the court in which such
48 accusatory instrument is pending:
49 (a) must order discovery as to any material not disclosed [upon a
50 demand] pursuant to section 240.20 OF THIS ARTICLE, if it finds that
51 [the prosecutor's refusal to disclose such material is not justified] A
52 PROTECTIVE ORDER SHOULD NOT BE ISSUED; (b) must, unless it is satisfied
53 that the people have shown good cause why such an order should [not] be
54 issued, order discovery or ISSUE any other order authorized by subdivi-
55 sion one of section 240.70 OF THIS ARTICLE as to any material not
56 disclosed [upon demand] pursuant to section 240.20 OF THIS ARTICLE where
A. 556 5
1 the prosecutor has failed to serve a timely written refusal pursuant to
2 section 240.35 OF THIS ARTICLE; and (c) [may] MUST order discovery with
3 respect to any other property, which the people intend to introduce at
4 the trial[, upon a showing by the defendant that discovery with respect
5 to such property is material to the preparation of his defense, and that
6 the request is reasonable]. Upon granting the motion pursuant to para-
7 graph (c) hereof, the court shall, upon motion of the people [showing
8 such to be material to the preparation of their case and that the
9 request is reasonable,] condition its order of discovery by further
10 directing discovery by the people of property, of the same kind or char-
11 acter as that authorized to be inspected by the defendant, which [he]
12 THE DEFENDANT intends to introduce at the trial.
13 2. Upon motion of the prosecutor, and subject to constitutional limi-
14 tation, the court in which an indictment, superior court information,
15 prosecutor's information, information, or simplified information charg-
16 ing a misdemeanor is pending:
17 (a) must order discovery as to any property not disclosed [upon a
18 demand] pursuant to section 240.30 OF THIS ARTICLE, if it finds that the
19 defendant's refusal to disclose such material is not justified; and (b)
20 may order the defendant to provide non-testimonial evidence. Such order
21 may, among other things, require the defendant to:
22 (i) Appear in a line-up;
23 (ii) Speak for identification by witness or potential witness;
24 (iii) Be fingerprinted;
25 (iv) Pose for photographs not involving reenactment of an event;
26 (v) Permit the taking of samples of blood, hair or other materials
27 from his OR HER body in a manner not involving an unreasonable intrusion
28 thereof or a risk of serious physical injury thereto;
29 (vi) Provide specimens of his OR HER handwriting;
30 (vii) Submit to a reasonable physical or medical inspection of his
31 body.
32 This subdivision shall not be construed to limit, expand, or otherwise
33 affect the issuance of a similar court order, as may be authorized by
34 law, before the filing of an accusatory instrument consistent with such
35 rights as the defendant may derive from the constitution of this state
36 or of the United States. This section shall not be construed to limit or
37 otherwise affect the [adminstration] ADMINISTRATION of a chemical test
38 where otherwise authorized pursuant to section [one thousand one] ELEVEN
39 hundred ninety-four-a of the vehicle and traffic law.
40 3. An order pursuant to this section may be denied, limited or condi-
41 tioned as provided in section 240.50 OF THIS ARTICLE, OTHERWISE AUTHOR-
42 IZED PURSUANT TO SECTION ELEVEN HUNDRED NINETY-FOUR OF THE VEHICLE AND
43 TRAFFIC LAW.
44 S 12. Section 240.45 of the criminal procedure law is REPEALED.
45 S 13. Section 240.50 of the criminal procedure law is amended by
46 adding a new subdivision 1-a to read as follows:
47 1-A. THE COURT IN WHICH THE CRIMINAL ACTION IS PENDING MAY, UPON
48 MOTION OF EITHER PARTY FOR AN ORDER TO REDACT THE NAME AND/OR ADDRESS OF
49 A WITNESS, ISSUE A PROTECTIVE ORDER DENYING, LIMITING, CONDITIONING OR
50 REGULATING DISCOVERY OF THE NAME AND/OR ADDRESS OF A WITNESS PURSUANT TO
51 THIS ARTICLE FOR GOOD CAUSE, INCLUDING SUBSTANTIAL RISK OF PHYSICAL
52 HARM, INTIMIDATION, UNJUSTIFIED ANNOYANCE OR EMBARRASSMENT TO THE
53 WITNESS OR AN ADVERSE EFFECT UPON THE LEGITIMATE NEEDS OF LAW ENFORCE-
54 MENT INCLUDING THE PROTECTION OF THE CONFIDENTIALITY OF INFORMANTS.
55 S 14. Section 240.60 of the criminal procedure law, as added by chap-
56 ter 412 of the laws of 1979, is amended to read as follows:
A. 556 6
1 S 240.60 Discovery; continuing duty to disclose.
2 If, after complying with the provisions of this article or an order
3 pursuant thereto, a party finds, either before or during trial, addi-
4 tional material subject to discovery or covered by such order, [he] THAT
5 PARTY shall promptly comply with the [demand or] order, [refuse to
6 comply with the demand where refusal is authorized,] or apply for a
7 protective order.
8 S 15. Subdivision 1 of section 240.70 of the criminal procedure law,
9 as added by chapter 412 of the laws of 1979, is amended to read as
10 follows:
11 1. If, during the course of discovery proceedings, the court finds
12 that a party has failed to comply with any of the provisions of this
13 article, the court may order such party to permit discovery of the prop-
14 erty not previously disclosed, grant a continuance, issue a protective
15 order, prohibit the introduction of certain evidence or the calling of
16 certain witnesses, GIVE AN ADVERSE INFERENCE INSTRUCTION TO THE TRIER OF
17 FACT or take any other appropriate action.
18 S 16. Section 240.75 of the criminal procedure law, as added by chap-
19 ter 1 of the laws of 2000, is amended to read as follows:
20 S 240.75 Discovery; certain violations.
21 The failure of the prosecutor or any agent of the prosecutor to
22 disclose statements that are required to be disclosed under subdivision
23 one of section 240.44 [or paragraph (a) of subdivision one of section
24 240.45] of this article shall not constitute grounds for any court to
25 order a new pre-trial hearing or set aside a conviction, or reverse,
26 modify or vacate a judgment of conviction in the absence of a showing by
27 the defendant that there is a reasonable possibility that the non-dis-
28 closure materially contributed to the result of the trial or other
29 proceeding; provided, however, that nothing in this section shall affect
30 or limit any right the defendant may have to a re-opened pre-trial hear-
31 ing when such statements were disclosed before the close of evidence at
32 trial.
33 S 17. Section 240.80 of the criminal procedure law is REPEALED.
34 S 18. Subdivision 2 of section 240.90 of the criminal procedure law,
35 as added by chapter 412 of the laws of 1979, is amended to read as
36 follows:
37 2. [A] WITHIN FIFTEEN DAYS AFTER THE PROSECUTOR HAS DISCLOSED TO THE
38 DEFENDANT PROPERTY DESCRIBED IN SECTION 240.20 OF THIS ARTICLE, A motion
39 by a defendant for discovery shall be made as OTHERWISE prescribed in
40 section 255.20 of this [chapter] TITLE. SUCH MOTION MUST STATE THAT
41 EACH ITEM OF PROPERTY SOUGHT HAS NOT PREVIOUSLY BEEN DISCLOSED TO THE
42 DEFENDANT.
43 S 19. Paragraph (a) of subdivision 14 of section 400.27 of the crimi-
44 nal procedure law, as added by chapter 1 of the laws of 1995, is amended
45 to read as follows:
46 (a) At a reasonable time prior to the sentencing proceeding or a
47 mental retardation hearing:
48 (i) the prosecutor shall, unless previously disclosed and subject to a
49 protective order, make available to the defendant the statements and
50 information specified in subdivision [one] TWO of section [240.45]
51 240.20 OF THIS CHAPTER and make available for inspection, photographing,
52 copying or testing the property specified in subdivision one of section
53 240.20 OF THIS CHAPTER; and
54 (ii) the defendant shall, unless previously disclosed and subject to a
55 protective order, make available to the prosecution the statements and
56 information specified in subdivision two of section [240.45] 240.30 OF
A. 556 7
1 THIS CHAPTER and make available for inspection, photographing, copying
2 or testing, subject to constitutional limitations, the reports, docu-
3 ments and other property specified in subdivision one of section 240.30
4 OF THIS CHAPTER.
5 S 20. Subdivision 2 of section 710.30 of the criminal procedure law,
6 as separately amended by chapters 8 and 194 of the laws of 1976, is
7 amended to read as follows:
8 2. Such notice must be served within [fifteen] THIRTY days after
9 arraignment and before trial, and upon such service the defendant must
10 be accorded reasonable opportunity to move before trial, pursuant to
11 subdivision one of section 710.40 OF THIS ARTICLE, to suppress the spec-
12 ified evidence. For good cause shown, however, the court may permit the
13 people to serve such notice, thereafter and in such case it must accord
14 the defendant reasonable opportunity thereafter to make a suppression
15 motion.
16 S 21. This act shall take effect on the first of January next
17 succeeding the date on which it shall have become a law, provided that
18 the amendment to subdivision 9 of section 65.20 of the criminal proce-
19 dure law, made by section one of this act, shall not affect the expira-
20 tion and repeal of such section and shall expire and be deemed repealed
21 therewith.
