STATE OF NEW YORK ________________________________________________________________________ 2098 2017-2018 Regular Sessions IN ASSEMBLY January 17, 2017 ___________ Introduced by M. of A. LENTOL -- Multi-Sponsored by -- M. of A. GANTT -- read once and referred to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to discovery requirements and procedures and to repeal certain provisions of such law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Article 240 of the criminal procedure law is REPEALED and a 2 new article 240 is added to read as follows: 3 ARTICLE 240 4 AUTOMATIC DISCOVERY PROCEDURE AND REQUIREMENTS 5 Section 240.10 Automatic discovery. 6 240.20 Reciprocal discovery. 7 240.30 Depositions. 8 240.35 Non-testimonial evidence from the defendant. 9 240.40 Preservation of evidence. 10 240.43 Discretionary discovery by order of the court. 11 240.44 Certificates of compliance. 12 240.45 Continuing duty to disclose. 13 240.50 Protective orders. 14 240.60 Remedies and sanctions for noncompliance with this arti- 15 cle. 16 240.70 Lost or destroyed materials. 17 § 240.10 Automatic discovery. 18 The prosecution is hereby required to provide discovery materials 19 without a motion by defense before or at arraignment. The prosecution 20 shall disclose to the defendant, and permit the defendant to discover, 21 inspect, copy or photograph, all items and information when in 22 possession, custody or control of the prosecution or persons under the 23 prosecution's direction or control including but not limited to: 24 1. Witness contact information and all written and recorded state- 25 ments, and the substance of all oral statements. The probation depart- 26 ment is required to provide the parties with a record of all 27 convictions, complaints, and indictments against all of the prospective EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03405-01-7A. 2098 2 1 prosecution witnesses and all defendants within five days of the prose- 2 cution's disclosure of its witnesses' names and addresses to the 3 defense. 4 2. All transcripts of the testimony of a person who has testified 5 before any grand jury when the testimony relates to the subject matter 6 of the case. 7 3. Identification information of all law enforcement personnel whom 8 the prosecutor knows to have evidence or information relevant to any 9 offense charged or to a potential defense thereto. 10 4. Statements of identification procedures. 11 5. All tangible objects and exhibits. 12 6. All defendants' statements. 13 7. All exculpatory facts in possession of the prosecution or of 14 persons under the prosecution's direction or who investigated the case; 15 not limited to "materially exculpatory" evidence. 16 8. All statements written or recorded which relate to the subject 17 matter. 18 9. Intended expert opinion including all contact information, publica- 19 tions of intended witness, and reports prepared by the expert that 20 pertain to the case. 21 10. Summary of all corporeal or non-corporeal or voice identification 22 procedures. 23 11. Summary of all promises, rewards and inducements made to persons 24 who may be called as witnesses. 25 12. Whether the prosecution has any evidence or information that may 26 have been provided by a confidential or jailhouse informant. 27 13. Whether a search warrant has been executed and all information 28 relating thereto. 29 14. Whether there has been any electronic surveillance. 30 § 240.20 Reciprocal discovery. 31 The defense, subject to constitutional limitations, has reciprocal 32 discovery obligations after it receives the prosecutor's discovery pack- 33 age. The defense must disclose all relevant material evidence within the 34 defendant's possession including the names, addresses, dates of birth 35 and statements by individuals whom the defense intends to call at trial, 36 intended expert opinion evidence, photographs, tangible objects, exhib- 37 its, scientific test reports; and information regarding any inducements 38 or promises to any witness. 39 § 240.30 Depositions. 40 Any time after the filing of an accusatory instrument, the court in 41 its discretion may, upon motion of any party, order the examination of 42 any person except the defendant upon oral deposition if the party shows 43 that the person's testimony is material to the case or necessary to 44 adequately prepare a defense. 45 § 240.35 Non-testimonial evidence from the defendant. 46 After the filing of an accusatory instrument, and subject to constitu- 47 tional limitations, the court may, upon motion by the prosecution show- 48 ing probable cause to believe the defendant has committed the crime, a 49 clear indication that relevant material evidence will be found, and that 50 the method used to secure it is safe and reliable, require a defendant 51 to provide non-testimonial evidence, including to appear in a lineup and 52 other evidence. 53 § 240.40 Preservation of evidence. 54 Evidentiary materials are required to be maintained in their original 55 condition and shall include but not be limited to:A. 2098 3 1 1. Videotape of interviews at the police station or other facilities: 2 No oral, written or sign language statement of a suspect made during an 3 interview shall be admissible as substantive evidence against that 4 person in any criminal proceeding unless an electronic recording, which 5 must be focused upon both the questioner and the suspect throughout and 6 must include not only audio but also visual recording, is made of the 7 complete interview. 8 2. Telephone calls and police radio transmissions: When electronic 9 recordings of 911 telephone calls or police radio transmissions are made 10 in connection with an investigation, the arresting officer or lead 11 detective must expeditiously notify the prosecution in writing of the 12 existence of all recordings. 13 3. Material possessed by other government personnel or third parties: 14 The prosecution is required to notify the defense whenever it receives 15 information about the existence of any otherwise discoverable item that 16 is not within the possession, custody or control of law enforcement, and 17 the parties can move for a court order requiring the preservation of 18 such items by a third party. 19 § 240.43 Discretionary discovery by order of the court. 20 Upon the request by the defendant, to the court, if the defendant is 21 unable without undue hardship to obtain the substantial equivalent by 22 other means, the court may order the prosecution, or any individual, 23 agency or other entity to make available for disclosure to the defendant 24 any material of information which potentially relates to the subject 25 matter of the case or is otherwise relevant. 26 § 240.44 Certificates of compliance. 27 The prosecution and defense must certify in writing that they have 28 exercised due diligence in complying with their discovery obligations 29 and this certification must identify each item that was provided. 30 § 240.45 Continuing duty to disclose. 31 If the prosecution or the defendant subsequently learns of additional 32 material or information which it would have a duty to disclose pursuant 33 to any provisions of this article, it shall immediately notify the other 34 party and disclose the additional material or information as required by 35 this chapter. 36 § 240.50 Protective orders. 37 The court may order that discovery or inspection be denied, 38 restricted, conditioned or deferred, or may grant discovery to the 39 defendant on the condition that the material be available only to coun- 40 sel for the defendant. 41 § 240.60 Remedies and sanctions for noncompliance with this article. 42 A range of legal remedies are available for failing to comply with any 43 discovery order issued or imposed. This includes but shall not be limit- 44 ed to the ability of the court to make a further order of discovery, 45 grant a continuance, order that the hearing be reopened, order that a 46 witness be called or recalled, order a mistrial or dismissal of some 47 charges. 48 § 240.70 Lost or destroyed materials. 49 When material or information is discoverable, but cannot be disclosed 50 because it has been lost or destroyed, the court shall impose an appro- 51 priate remedy or sanction which is proportionate to the potential ways 52 in which the lost or destroyed material could have been helpful to the 53 party entitled to disclosure. 54 § 2. This act shall take effect on the sixtieth day after it shall 55 have become a law and shall apply to all arraignments commencing on or 56 after such effective date.