BILL NUMBER: S5885REVISED 3/27/23
SPONSOR: SCARCELLA-SPANTON
 
TITLE OF BILL:
An act to amend the criminal procedure law, in relation to the discovery
of material, non-material and impeachment information and the required
time frame for such discovery
 
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. Subdivision 4 of section 30.30 of the criminal procedure law
is amended as follows:
4. In computing the time within which the people must be ready for trial
pursuant to subdivisions one and two of this section, the following
periods must be excluded:
(j) the period during which a family offense is before a family court
until such time as an accusatory instrument or indictment is filed
against the defendant alleging a crime constituting a family offense, as
such term is defined in section 530.11 of this chapter: or
(k) the period during which the prosecution performs its discovery obli-
gations under subdivisions one-a and one-b of section 245.10 of this
article provided that the certificates of compliance for each disclosure
are filed within the period outlined in the respective subdivisions;
provided, however, that delay in compliance beyond the mandated periods
may be excludable as an exceptional circumstance under subdivision
four-g of section 30.30 of this chapter.
Section 2. Section 245.10 of the criminal procedure law is amended as
follows:
§ 245.10 Timing of Discovery and certain pre-trial motion procedure.
1. (a) The prosecution shall perform its initial discovery obligations
under subdivision one-a of section 245.20 of this article as soon as
practicable but not later than thirty days after the defendant's
arraignment on an indictment, superior court information, prosecutor's
information, information, simplified information, misdemeanor complaint
or felony complaint. When the prosecution has provided the discovery
required by subdivision one-a of section 245.20 of this article, it
shall serve upon the defendant and file with the court a certificate of
compliance pursuant to subdivision one of section 245.50.
(b) Once the prosecution has filed its certificate of compliance
concerning the disclosure required by subdivision one-a of section
245.20, the defense must file its pre-trial motions within 45 days of
that filing. The People shall begin performance of their disclosure of
discovery obligations under subdivision one-b of section 245.20 of this
article after completion of their discovery, must file their response to
the omnibus motion within 30 days of its receipt and must complete their
disclosure of discovery obligations under subdivision one-b of section
245.20 of this article no later than the date of the filing of their
omnibus motion response. Once the prosecution has provided the discovery
required by subdivision one-b of section 245.20 of this article, it
shall serve upon the defendant and file with the court a certificate of
compliance pursuant to subdivision one of section 245.50. Upon its
filing, the prosecution may file a certificate of readiness or announce
readiness for trial.
(c) The prosecution shall perform its discovery obligations under subdi-
vision one-c of section 245.20 no later than 15 days after decision on
defendant's pre-trial motions.
(d) Notwithstanding the previous provisions of this section, the
prosecutor's obligations shall not apply to a simplified information
charging a traffic infraction under the vehicle and traffic law, or to
an information charging one or more petty offenses as defined by the
municipal code of a village, town, city, or county, that do not carry a
statutorily authorized sentence of imprisonment, and where the defendant
stands charged before the court with no crime or offense, provided
however that nothing in this subparagraph shall prevent a defendant from
filing a motion for disclosure of such items and information under
subdivision one of section 245.20 of this article. The court shall, at
the first appearance, advise the defendant of their right to file a
motion for discovery.
(e)(i) Portions of materials that must be disclosed under subdivisions
one-a, one-b and one-c of section 245.20 claimed to be non-discoverable
may be withheld pending a determination and ruling of the court under
section 245.70 of this article; but the defendant shall be notified in
writing that information has not been disclosed under a particular
subdivision of such section, and the discoverable portions of such mate-
rials shall be disclosed to the extent practicable. Information related
to or evidencing the identity of a 911 caller, the victim or witness of
an offense defined under article one hundred thirty or sections 230.34
and 230.34-a of the penal law, or any other victim or witness of a crime
where the defendant has substantiated affiliation with a criminal enter-
prise as defined in subdivision three of section 460.10 of the penal law
may be withheld, provided, however, the defendant may move the court for
disclosure.
(ii) When the discoverable materials, including video footage from body-
worn cameras, surveillance cameras, or dashboard cameras, are excep-
tionally voluminous or, despite diligent, good faith efforts, are other-
wise not in the actual possession of the prosecution, the time period in
this paragraph may be stayed by up to an additional thirty calendar days
without need for a motion pursuant to subdivision two of section 245.70
of this article.
Section 3. Subdivision 1 of section 245.20 of the criminal procedure law
is amended as follows:
1. Initial discovery for the defendant. The prosecution shall disclose
to the defendant, and permit the defendant to discover, inspect, copy,
photograph and test, all items and information in the following catego-
ries of information that relate to the subject matter of the case and
are in the possession, custody or control of the prosecution or persons
under the prosecution's direction or control, including but not limited
to:
(a) Material Information.
(i) All written or recorded statements, and the substance of all oral
statements, made by the defendant or a co-defendant to a public servant
engaged in law enforcement activity or to a person then acting under his
or her direction or in cooperation with him or her.
(ii) All transcripts of the testimony of a person who has testified
before a grand jury, including but not limited to the defendant or a
co-defendant. If in the exercise of reasonable diligence, and due to the
limited availability of transcription resources, a transcript is
unavailable for disclosure within the time period specified in subdivi-
sion one of section 245.10 of this article, such time period may be
stayed by up to an additional thirty calendar days without need for a
motion pursuant to subdivision two of section 245.70 of this article;
except that such disclosure shall be made as soon as practicable and not
later than the end of the time period defined in paragraph (c) of
subsection (1) of section 245.10 of this article, unless an order is
obtained pursuant to section 245.70 of this article. When the court is
required to review grand jury transcripts, the prosecution shall
disclose such transcripts to the court expeditiously upon receipt by the
prosecutor, notwithstanding the otherwise-applicable time periods for
disclosure in this article.
(iii) All statements, written or recorded or summarized in any writing
or recording, made by persons who have evidence or information relevant
to any offense charged or to any potential defense thereto, including
all police reports, notes of police and other investigators, and law
enforcement agency reports. This provision also includes statements,
written or recorded or summarized in any writing or recording, by
persons to be called as witnesses at pre-trial hearings.
(iv) Intention to introduce expert opinion evidence.
(v) All tapes or other electronic recordings, including all electronic
recordings of 911 telephone calls made or received in connection with
the alleged criminal incident, and a designation by the prosecutor as to
which of the recordings under this paragraph the prosecution intends to
introduce at trial or a pre-trial hearing. If the discoverable materials
under this paragraph exceed ten hours in total length, the prosecution
may disclose only the recordings that it intends to introduce at trial
or a pre-trial hearing.
(vi) All photographs and drawings made or completed by a public servant
engaged in law enforcement activity, or which were made by a person whom
the prosecutor intends to call as a witness at trial or a pre-trial
hearing which are relevant to the charges against the defendant in the
case.
(vii) All photographs, photocopies and reproductions made by or at the
direction of law enforcement personnel of any property prior to its
release pursuant to section 450.10 of the penal law.
(viii) All reports, documents, records, data, calculations or writings,
including but not limited to preliminary tests and screening results and
bench notes and analyses performed or stored electronically, concerning
physical or mental examinations, or scientific tests or experiments or
comparisons, relating to the criminal action or proceeding which were
made by or at the request or direction of a public servant engaged in
law enforcement activity, or which were made by a person whom the prose-
cutor intends to call as a witness at trial or a pre-trial hearing, or
which the prosecution intends to introduce at trial or a pre-trial hear-
ing. Information under this paragraph also includes, but is not limited
to, laboratory information management system records relating to such
materials, any preliminary or final findings of non-conformance with
accreditation, industry or governmental standards or laboratory proto-
cols, and any conflicting analyses or results by laboratory personnel
regardless of the laboratory's final analysis or results. If the prose-
cution submitted one or more items for testing to, or received results
from, a forensic science laboratory or similar entity not under the
prosecution's direction or control, the court on motion of a party shall
issue subpoenas or orders to such laboratory or entity to cause materi-
als under this paragraph to be made available for disclosure. The prose-
cution shall not be required to provide information related to the
results of physical or mental examinations, or scientific tests or
experiments or comparisons, unless and until such examinations, tests,
experiments, or comparisons have been completed.
(ix) All evidence and information, including that which is known to
police or other law enforcement agencies acting on the government's
behalf in the case, that tends to: (A) negate the defendant's guilt as
to a charged offense; (B) reduce the degree of or mitigate the defend-
ant's culpability as to a charged offense; (C) support a potential
defense to a charged offense; (D) undermine evidence of the defendant's
identity as a perpetrator of a charged offense; (E) provide a basis for
a motion to suppress evidence; or (F) mitigate punishment. Information
under this subdivision shall be disclosed whether or not such informa-
tion is recorded in tangible form and irrespective of whether the prose-
cutor credits the information. The prosecutor shall disclose the infor-
mation expeditiously upon its receipt and shall not delay disclosure if
it is obtained earlier than the time period for disclosure in subdivi-
sion one of section 245.10 of this article.
(x) A list of all tangible objects obtained from, or allegedly possessed
by, the defendant or a co-defendant. The list shall include a desig-
nation by the prosecutor as to which objects were physically or
constructively possessed by the defendant and were recovered during a
search or seizure by a public servant or an agent thereof, and which
tangible objects were recovered by a public servant or an agent thereof
after allegedly being abandoned by the defendant. If the prosecution
intends to prove the defendant's possession of any tangible objects by
means of a statutory presumption of possession, it shall designate such
intention as to each such object. If reasonably practicable, the prose-
cution shall also designate the location from which each tangible object
was recovered. There is also a right to inspect, copy, photograph and
test the listed tangible objects.
(xi) Whether a search warrant has been executed and all documents relat-
ing thereto, including but not limited to the warrant, the warrant
application, supporting affidavits, a police inventory of all property
seized under the warrant, and a transcript of all testimony or other
oral communications offered in support of the warrant application.
(xii) All tangible property that the prosecution intends to introduce in
its case-in-chief at trial or a pre-trial hearing. If in the exercise of
reasonable diligence the prosecutor has not formed an intention within
the time period specified in subdivision one of section 245.10 of this
article that an item under this subdivision will be introduced at trial
or a pre-trial hearing, the prosecution shall notify the defendant in
writing, and the time period in which to designate items as exhibits
shall be stayed without need for a motion pursuant to subdivision two of
section 245.70 of this article; but the disclosure shall be made as soon
as practicable and subject to the continuing duty to disclose in section
245.60 of this article.
(xiii) The approximate date, time and place of the offense or offenses
charged and of the defendant's seizure and arrest.
(xiv) In any prosecution alleging a violation of section 156.05 or
156.10 of the penal law, the time, place and manner such violation
occurred.
(xv)(A) A copy of all electronically created or stored information
seized or obtained by or on behalf of law enforcement from: (1) the
defendant as described in clause (B) of this paragraph; or (2) a source
other than the defendant which is relevant to the charges against the
defendant in the case.
(B) If the electronically created or stored information originates from
a device, account, or other electronically stored source that the prose-
cution believes the defendant owned, maintained, or had lawful access to
and is within the possession, custody or control of the prosecution or
persons under the prosecution's direction or control, the prosecution
shall provide a complete copy of the electronically created or stored
information from the device or account or other source.
(C) If possession of such electronically created or stored information
would be a crime under New York state or federal law, the prosecution
shall make those portions of the electronically created or stored infor-
mation that are not criminal to possess available as specified under
this paragraph and shall afford counsel for the defendant access to
inspect contraband portions at a supervised location that provides regu-
lar and reasonable hours for such access, such as a prosecutor's office,
police station, or court. Any delay in counsel for defendant's access to
contraband portions of such materials caused by counsel for defendant
will be excludable from chargeable time as defined in section 30.30(4)
of this chapter.
(D) This paragraph shall not be construed to alter or in any way affect
the right to be free from unreasonable searches and seizures or such
other rights a suspect or defendant may derive from the state constitu-
tion or the United States constitution. If in the exercise of reasonable
diligence the information under this paragraph is not available for
disclosure within the time period required by subdivision one of section
245.10 of this article, that period shall be stayed without need for a
motion pursuant to subdivision two of section 245.70 of this article,
except that the prosecution shall notify the defendant in writing that
such information has not been disclosed, and such disclosure shall be
made as soon as practicable and not later than the end of the time peri-
od as defined in paragraph c 245.10(1) of this article, unless an order
is obtained pursuant to section 245.70 of this article.
(b) Non-material information
(i) The names and adequate contact information for all persons other
than law enforcement personnel whom the prosecutor knows to have
evidence or information relevant to any offense charged or to any poten-
tial defense thereto, including a designation by the prosecutor as to
which of those persons may be called as witnesses. Nothing in this para-
graph shall require the disclosure of physical addresses; provided,
however, upon a motion and good cause shown the court may direct the
disclosure of a physical address. Information under this subdivision
relating to the identity of a 911 caller, the victim or witness of an
offense defined under article one hundred thirty or section 230.34 or
230.34a of the penal law, any other victim or witness of a crime where
the defendant has substantiated affiliation with a criminal enterprise
as defined in subdivision three of section 460.10 of the penal law, or a
confidential informant may be withheld, and redacted from discovery
materials, without need for a motion pursuant to section 245.70 of this
article; but the prosecution shall notify the defendant in writing that
such information has not been disclosed, unless the court rules other-
wise for good cause shown.
(ii) The name and work affiliation of all law enforcement personnel whom
the prosecutor knows to have evidence or information relevant to any
offense charged or to any potential defense thereto, including a desig-
nation by the prosecutor as to which of those persons may be called as
witnesses. Information under this subdivision relating to undercover
personnel may be withheld, and redacted from discovery materials, with-
out need for a motion pursuant to section 245.70 of this article; but
the prosecution shall notify the defendant in writing that such informa-
tion has not been disclosed, unless the court rules otherwise for good
cause shown.
(iii) A list of the source and approximate quantity of other recordings.
and their general subject matter if known, and the defendant shall have
the right upon request to obtain recordings not previously disclosed.
The prosecution shall disclose the requested materials