§ 245.20 — Automatic discovery

New York § 245.20

• Jurisdiction: New York
• Law CPL: Criminal Procedure
• Title J: Prosecution of Indictments In Superior Courts--plea to Sentence
• Part 2: The Principal Proceedings
• Art. 245: Discovery

Text

§ 245.20 Automatic discovery.\n 1. Initial discovery for the defendant. The prosecution shall disclose\nto the defendant, and permit the defendant to discover, inspect, copy,\nphotograph and test the following material and information in the\npossession, custody or control of the prosecution or persons under the\nprosecution's direction or control:\n (a) All written or recorded statements, and the substance of all oral\nstatements, made by the defendant or a co-defendant to a public servant\nengaged in law enforcement activity or to a person then acting under\ntheir direction or in cooperation with them that relate to the subject\nmatter of the charges against the defendant or co-defendant in the\ninstant case, or a defense thereto.\n (b) All transcripts of the testimony of a person who has testified\nbefore a grand jury that relate to the subject matter of the charges\nagainst the defendant in the instant case, including but not limited to\nthe defendant or a co-defendant. If in the exercise of reasonable\ndiligence, and due to the limited availability of transcription\nresources, a transcript is unavailable for disclosure within the time\nperiod specified in subdivision one of section 245.10 of this article,\nsuch time period may be stayed by up to an additional thirty calendar\ndays without need for a motion pursuant to subdivision two of section\n245.70 of this article; except that such disclosure shall be made as\nsoon as practicable and not later than thirty calendar days before the\nfirst scheduled trial date, unless an order is obtained pursuant to\nsection 245.70 of this article. When the court is required to review\ngrand jury transcripts, the prosecution shall disclose such transcripts\nto the court expeditiously upon receipt by the prosecutor,\nnotwithstanding the otherwise-applicable time periods for disclosure in\nthis article.\n (c) The names and adequate contact information for all persons other\nthan law enforcement personnel whom the prosecutor knows to have\nevidence or information relevant to any offense charged or to any\npotential defense thereto, including a designation by the prosecutor as\nto which of those persons may be called as witnesses. Nothing in this\nparagraph shall require the disclosure of physical addresses; provided,\nhowever, upon a motion and good cause shown the court may direct the\ndisclosure of a physical address. Information under this subdivision\nrelating to the identity of a 911 caller, the victim or witness of an\noffense defined under article one hundred thirty or section 230.34 or\n230.34-a of the penal law, any other victim or witness of a crime where\nthe defendant has substantiated affiliation with a criminal enterprise\nas defined in subdivision three of section 460.10 of the penal law, or a\nconfidential informant may be withheld, and redacted from discovery\nmaterials, without need for a motion pursuant to section 245.70 of this\narticle; but the prosecution shall notify the defendant in writing that\nsuch information has not been disclosed, unless the court rules\notherwise for good cause shown.\n (d) The name and work affiliation of all law enforcement personnel\nwhom the prosecutor knows to have evidence or information relevant to\nany offense charged or to any potential defense thereto, including a\ndesignation by the prosecutor as to which of those persons may be called\nas witnesses. Information under this subdivision relating to undercover\npersonnel may be withheld, and redacted from discovery materials,\nwithout need for a motion pursuant to section 245.70 of this article;\nbut the prosecution shall notify the defendant in writing that such\ninformation has not been disclosed, unless the court rules otherwise for\ngood cause shown.\n (e) All statements related to the subject matter of the case, written\nor recorded or summarized in any writing or recording, made by persons\nwho have evidence or information relevant to any offense charged or to\nany potential defense thereto, including all police reports, notes of\npolice and other investigators, law enforcement agency reports, and\nstatements, written or recorded or summarized in any writing or\nrecording, by persons to be called as witnesses at pre-trial hearings.\n (f) Expert opinion evidence, including the name, business address,\ncurrent curriculum vitae, a list of publications, and a list of\nproficiency tests and results administered or taken within the past ten\nyears of each expert witness whom the prosecutor intends to call as a\nwitness at trial or a pre-trial hearing, and all reports prepared by the\nexpert that pertain to the case, or if no report is prepared, a written\nstatement of the facts and opinions to which the expert is expected to\ntestify and a summary of the grounds for each opinion. This paragraph\ndoes not alter or in any way affect the procedures, obligations or\nrights set forth in section 250.10 of this title. If in the exercise of\nreasonable diligence this information is unavailable for disclosure\nwithin the time period specified in subdivision one of section 245.10 of\nthis article, that period shall be stayed without need for a motion\npursuant to subdivision two of section 245.70 of this article; except\nthat the prosecution shall notify the defendant in writing that such\ninformation has not been disclosed, and such disclosure shall be made as\nsoon as practicable and not later than sixty calendar days before the\nfirst scheduled trial date, unless an order is obtained pursuant to\nsection 245.70 of this article. When the prosecution's expert witness is\nbeing called in response to disclosure of an expert witness by the\ndefendant, the court shall alter a scheduled trial date, if necessary,\nto allow the prosecution thirty calendar days to make the disclosure and\nthe defendant thirty calendar days to prepare and respond to the new\nmaterials.\n (g) All tapes or other electronic recordings, including all electronic\nrecordings of 911 telephone calls made or received in connection with\nthe alleged criminal incident, and a designation by the prosecutor as to\nwhich of the recordings under this paragraph the prosecution intends to\nintroduce at trial or a pre-trial hearing. If the discoverable materials\nunder this paragraph exceed ten hours in total length, the prosecution\nmay disclose only the recordings that it intends to introduce at trial\nor a pre-trial hearing, along with a list of the source and approximate\nquantity of other recordings and their general subject matter if known,\nand the defendant shall have the right upon request to obtain recordings\nnot previously disclosed. The prosecution shall disclose the requested\nmaterials as soon as practicable and not less than fifteen calendar days\nafter the defendant's request, unless an order is obtained pursuant to\nsection 245.70 of this article. The prosecution may withhold the names\nand identifying information of any person who contacted 911 without the\nneed for a protective order pursuant to section 245.70 of this article,\nprovided, however, the defendant may move the court for disclosure. If\nthe prosecution intends to call such person as a witness at a trial or\nhearing, the prosecution must disclose the name and contact information\nof such witness no later than fifteen days before such trial or hearing,\nor as soon as practicable.\n (h) All photographs and drawings that relate to the subject matter of\nthe charges against the defendant in the instant case or a defense\nthereto made or completed by a public servant engaged in law enforcement\nactivity, or which were made by a person whom the prosecutor intends to\ncall as a witness at trial or a pre-trial hearing.\n (i) All photographs, photocopies and reproductions made by or at the\ndirection of law enforcement personnel of any property that relate to\nthe subject matter of the charges against the defendant in the instant\ncase or a defense thereto prior to its release pursuant to section\n450.10 of the penal law.\n (j) All reports, documents, records, data, calculations or writings,\nincluding but not limited to preliminary tests and screening results and\nbench notes and analyses performed or stored electronically, concerning\nphysical or mental examinations, or scientific tests or experiments or\ncomparisons, relating to the criminal action or proceeding which were\nmade by or at the request or direction of a public servant engaged in\nlaw enforcement activity, or which were made by a person whom the\nprosecutor intends to call as a witness at trial or a pre-trial hearing,\nor which the prosecution intends to introduce at trial or a pre-trial\nhearing. Information under this paragraph also includes, but is not\nlimited to, laboratory information management system records relating to\nsuch materials, any preliminary or final findings of non-conformance\nwith accreditation, industry or governmental standards or laboratory\nprotocols, and any conflicting analyses or results by laboratory\npersonnel regardless of the laboratory's final analysis or results. If\nthe prosecution submitted one or more items for testing to, or received\nresults from, a forensic science laboratory or similar entity not under\nthe prosecution's direction or control, the court on motion of a party\nshall issue subpoenas or orders to such laboratory or entity to cause\nmaterials under this paragraph to be made available for disclosure. The\nprosecution shall not be required to provide information related to the\nresults of physical or mental examinations, or scientific tests or\nexperiments or comparisons, unless and until such examinations, tests,\nexperiments, or comparisons have been completed.\n (k) All evidence and information that relate to the subject matter of\nthe case, including that which is known to police or other law\nenforcement agencies acting on the government's behalf in the case, that\ntends to: (i) negate the defendant's guilt as to a charged offense; (ii)\nreduce the degree of or mitigate the defendant's culpability as to a\ncharged offense; (iii) support a potential defense to a charged offense;\n(iv) impeach the credibility of a testifying prosecution witness; (v)\nundermine evidence of the defendant's identity as a perpetrator of a\ncharged offense; (vi) provide a basis for a motion to suppress evidence;\nor (vii) mitigate punishment. Information under this subdivision shall\nbe disclosed whether or not such information is recorded in tangible\nform and irrespective of whether the prosecutor credits the information.\nThe prosecutor shall disclose the information expeditiously upon its\nreceipt and shall not delay disclosure if it is obtained earlier than\nthe time period for disclosure in subdivision one of section 245.10 of\nthis article.\n (l) A summary of all promises, rewards and inducements made in\nconnection with the instant case to, or in favor of, persons who may be\ncalled as witnesses, as well as requests for consideration by persons\nwho may be called as witnesses and copies of all documents relevant to a\npromise, reward or inducement.\n (m) A list of all tangible objects obtained from, or allegedly\npossessed by, the defendant or a co-defendant in connection with the\ncriminal action or proceeding. The list shall include a designation by\nthe prosecutor as to which objects were physically or constructively\npossessed by the defendant and were recovered during a search or seizure\nby a public servant or an agent thereof, and which tangible objects were\nrecovered by a public servant or an agent thereof after allegedly being\nabandoned by the defendant. If the prosecution intends to prove the\ndefendant's possession of any tangible objects by means of a statutory\npresumption of possession, it shall designate such intention as to each\nsuch object. If reasonably practicable, the prosecution shall also\ndesignate the location from which each tangible object was recovered.\nThere is also a right to inspect, copy, photograph and test the listed\ntangible objects.\n (n) Whether a search warrant has been executed in connection with the\ncriminal action or proceeding and all documents relating thereto,\nincluding but not limited to the warrant, the warrant application,\nsupporting affidavits, a police inventory of all property seized under\nthe warrant, and a transcript of all testimony or other oral\ncommunications offered in support of the warrant application.\n (o) All tangible property that relates to the subject matter of the\ncase, along with a designation of which items the prosecution intends to\nintroduce in its case-in-chief at trial or a pre-trial hearing. If in\nthe exercise of reasonable diligence the prosecutor has not formed an\nintention within the time period specified in subdivision one of section\n245.10 of this article that an item under this subdivision will be\nintroduced at trial or a pre-trial hearing, the prosecution shall notify\nthe defendant in writing, and the time period in which to designate\nitems as exhibits shall be stayed without need for a motion pursuant to\nsubdivision two of section 245.70 of this article; but the disclosure\nshall be made as soon as practicable and subject to the continuing duty\nto disclose in section 245.60 of this article.\n (p) A complete record of judgments of conviction for all defendants\nand all persons designated as potential prosecution witnesses pursuant\nto paragraph (c) of this subdivision, other than those witnesses who are\nexperts.\n (q) When it is known to the prosecution, the existence of any pending\ncriminal action against all persons designated as potential prosecution\nwitnesses pursuant to paragraph (c) of this subdivision.\n (r) The approximate date, time and place of the offense or offenses\ncharged and of the defendant's seizure and arrest.\n (s) In any prosecution alleging a violation of the vehicle and traffic\nlaw, where the defendant is charged by indictment, superior court\ninformation, prosecutor's information, information, or simplified\ninformation, all records of calibration, certification, inspection,\nrepair or maintenance of machines and instruments utilized to perform\nany scientific tests and experiments, including but not limited to any\ntest of a person's breath, blood, urine or saliva, for the period of six\nmonths prior and six months after such test was conducted, including the\nrecords of gas chromatography related to the certification of all\nreference standards and the certification certificate, if any, held by\nthe operator of the machine or instrument. The time period required by\nsubdivision one of section 245.10 of this article shall not apply to the\ndisclosure of records created six months after a test was conducted, but\nsuch disclosure shall be made as soon as practicable and in any event,\nthe earlier of fifteen days following receipt, or fifteen days before\nthe first scheduled trial date.\n (t) In any prosecution alleging a violation of section 156.05 or\n156.10 of the penal law, the time, place and manner such violation\noccurred.\n (u) (i) A copy of all electronically created or stored information\nseized or obtained by or on behalf of law enforcement from: (A) the\ndefendant as described in subparagraph (ii) of this paragraph; or (B) a\nsource other than the defendant which relates to the subject matter of\nthe charges against the defendant in the instant case or a defense\nthereto.\n (ii) If the electronically created or stored information originates\nfrom a device, account, or other electronically stored source that the\nprosecution believes the defendant owned, maintained, or had lawful\naccess to and is within the possession, custody or control of the\nprosecution or persons under the prosecution's direction or control, the\nprosecution shall provide a complete copy of the electronically created\nor stored information from the device or account or other source.\n (iii) If possession of such electronically created or stored\ninformation would be a crime under New York state or federal law, the\nprosecution shall make those portions of the electronically created or\nstored information that are not criminal to possess available as\nspecified under this paragraph and shall afford counsel for the\ndefendant access to inspect contraband portions at a supervised location\nthat provides regular and reasonable hours for such access, such as a\nprosecutor's office, police station, or court.\n (iv) This paragraph shall not be construed to alter or in any way\naffect the right to be free from unreasonable searches and seizures or\nsuch other rights a suspect or defendant may derive from the state\nconstitution or the United States constitution. If in the exercise of\nreasonable diligence the information under this paragraph is not\navailable for disclosure within the time period required by subdivision\none of section 245.10 of this article, that period shall be stayed\nwithout need for a motion pursuant to subdivision two of section 245.70\nof this article, except that the prosecution shall notify the defendant\nin writing that such information has not been disclosed, and such\ndisclosure shall be made as soon as practicable and not later than\nforty-five calendar days before the first scheduled trial date, unless\nan order is obtained pursuant to section 245.70 of this article.\n (v) Any other material and information relevant to the subject matter\nof the charges against the defendant in the instant case or a defense\nthereto that are not designated in paragraphs (a) through (u) of this\nsubdivision.\n 2. Duties of the prosecution. The prosecutor shall make a diligent,\ngood faith effort to ascertain the existence of material or information\ndiscoverable under subdivision one of this section and to cause such\nmaterial or information to be made available for discovery where it\nexists but is not within the prosecutor's possession, custody or\ncontrol. The prosecutor shall not be required to obtain material or\ninformation if it may be obtained with use of a subpoena duces tecum\nwhere the defense is able to obtain the same material with the use of a\nsubpoena duces tecum. For purposes of subdivision one of this section,\nall items and information related to the prosecution of a charge in the\npossession of any New York state or local police or law enforcement\nagency shall be deemed to be in the possession of the prosecution. The\nprosecution shall also identify any laboratory having contact with\nevidence related to the prosecution of a charge. This subdivision shall\nnot require the prosecutor to ascertain the existence of witnesses not\nknown to the police or another law enforcement agency, or the written or\nrecorded statements thereof, under paragraph (c) or (e) of subdivision\none of this section.\n 3. Supplemental discovery for the defendant. The prosecution shall\ndisclose to the defendant a list of all misconduct and criminal acts of\nthe defendant not charged in the indictment, superior court information,\nprosecutor's information, information, or simplified information, which\nthe prosecution intends to use at trial for purposes of (a) impeaching\nthe credibility of the defendant, or (b) as substantive proof of any\nmaterial issue in the case. In addition the prosecution shall designate\nwhether it intends to use each listed act for impeachment and/or as\nsubstantive proof.\n 4. Reciprocal discovery for the prosecution. (a) The defendant shall,\nsubject to constitutional limitations, disclose to the prosecution, and\npermit the prosecution to discover, inspect, copy or photograph, any\nmaterial and relevant evidence within the defendant's or counsel for the\ndefendant's possession or control that is discoverable under paragraphs\n(f), (g), (h), (j), (l) and (o) of subdivision one of this section,\nwhich the defendant intends to introduce at trial or a pre-trial\nhearing, and the names, addresses, birth dates, and all statements,\nwritten or recorded or summarized in any writing or recording, of those\npersons other than the defendant whom the defendant intends to call as\nwitnesses at trial or a pre-trial hearing.\n (b) Disclosure of the name, address, birth date, and all statements,\nwritten or recorded or summarized in any writing or recording, of a\nperson whom the defendant intends to call as a witness for the sole\npurpose of impeaching a prosecution witness is not required until after\nthe prosecution witness has testified at trial.\n (c) If in the exercise of reasonable diligence the reciprocally\ndiscoverable information under paragraph (f) or (o) of subdivision one\nof this section is unavailable for disclosure within the time period\nspecified in subdivision two of section 245.10 of this article, such\ntime period shall be stayed without need for a motion pursuant to\nsubdivision two of section 245.70 of this article; but the disclosure\nshall be made as soon as practicable and subject to the continuing duty\nto disclose in section 245.60 of this article.\n 5. Stay of automatic discovery; remedies and sanctions. Section 245.10\nand subdivisions one, two, three and four of this section shall have the\nforce and effect of a court order, and failure to provide discovery\npursuant to such section or subdivision may result in application of any\nremedies or sanctions permitted for non-compliance with a court order\nunder section 245.80 of this article. However, if in the judgment of\neither party good cause exists for declining to make any of the\ndisclosures set forth above, such party may move for a protective order\npursuant to section 245.70 of this article and production of the item\nshall be stayed pending a ruling by the court. The opposing party shall\nbe notified in writing that information has not been disclosed under a\nparticular section. When some parts of material or information are\ndiscoverable but in the judgment of a party good cause exists for\ndeclining to disclose other parts, the discoverable parts shall be\ndisclosed and the disclosing party shall give notice in writing that\nnon-discoverable parts have been withheld.\n 6. Redactions permitted. (a) Either party may redact the following\nwithout the need to move for a protective order pursuant to section\n245.70 of this article: social security numbers; tax numbers; the\nphysical addresses or other forms of contact information of witnesses,\nprovided that for any witness disclosed under paragraph (c) of\nsubdivision one of this section, the disclosing party provides at least\none form of adequate contact information; and material or information\nnot otherwise required to be disclosed under subdivision one of this\nsection, so long as the party making redactions based on the material\nnot being required to be disclosed under subdivision one of this section\nprovides the underlying reason for the redactions.\n (b) If the contact information disclosed pursuant to paragraph (a) of\nthis subdivision is incorrect or inoperative, the party that made the\ndisclosure shall, upon request, furnish an alternative form of adequate\ncontact information for such witness.\n 7. Presumption of openness. There shall be a presumption in favor of\ndisclosure when interpreting sections 245.10 and 245.25, and subdivision\none of section 245.20, of this article.\n