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Article 240 - NY Criminal Procedure Law

DISCOVERY
240.10  Discovery; definition of terms.
240.20  Discovery; upon demand of defendant.
240.30  Discovery; upon demand of prosecutor.
240.35  Discovery; refusal of demand.
240.40  Discovery; upon court order.
240.43  Discovery; disclosure of prior uncharged criminal,
               vicious or immoral acts.
240.44  Discovery; upon pre-trial hearing.
240.45  Discovery; upon trial, of prior statements and criminal
               history of witnesses.
240.50  Discovery; protective orders.
240.60  Discovery; continuing duty to disclose.
240.70  Discovery; sanctions; fees.
240.75  Discovery; certain violations.
240.80  Discovery; when demand, refusal and compliance made.
240.90  Discovery; motion procedure.

S 240.10 Discovery; definition of terms.
  The following definitions are applicable to this article:
  1.  "Demand to produce" means a written notice served by and on a
party to a criminal action, without leave of the court, demanding to
inspect property pursuant to this article and giving reasonable notice
of the time at which the demanding party wishes to inspect the property
designated.
  2.  "Attorneys` work product" means property to the extent that it
contains the opinions, theories or conclusions of the prosecutor,
defense counsel or members of their legal staffs.
  3.  "Property" means any existing tangible personal or real property,
including, but not limited to, books, records, reports, memoranda,
papers, photographs, tapes or other electronic recordings, articles of
clothing, fingerprints, blood samples, fingernail scrapings or
handwriting specimens, but excluding attorneys` work product.
  4.  "At the trial" means as part of the people`s or the defendant`s
direct case.

S 240.20 Discovery; upon demand of defendant.
   1.  Except  to  the  extent protected by court order, upon a demand to
  produce by a  defendant  against  whom  an  indictment,  superior  court
  information,   prosecutor's   information,  information,  or  simplified
  information charging a misdemeanor  is  pending,  the  prosecutor  shall
  disclose   to   the   defendant   and  make  available  for  inspection,
  photographing, copying or testing, the following property:
    (a)  Any written, recorded or oral statement of the defendant, and  of
  a  co-defendant  to  be tried jointly, made, other than in the course of
  the criminal transaction, to a public servant engaged in law enforcement
  activity  or  to  a  person  then  acting  under  his  direction  or  in
  cooperation with him;
    (b)    Any  transcript of testimony relating to the criminal action or
  proceeding pending against the defendant, given by the defendant, or  by
  a co-defendant to be tried jointly, before any grand jury;
    (c)   Any written report or document, or portion thereof, concerning a
  physical or  mental  examination,  or  scientific  test  or  experiment,
  relating  to  the criminal action or proceeding which was made by, or at
  the request or direction of a public servant engaged in law  enforcement
  activity,  or  which was made by a person whom the prosecutor intends to
  call as a witness at trial, or which the people intend to  introduce  at
  trial;
    (d)    Any  photograph  or  drawing relating to the criminal action or
  proceeding which was made or completed by a public  servant  engaged  in
  law  enforcement  activity,  or  which  was  made  by  a person whom the
  prosecutor intends to call as a witness at trial, or  which  the  people
  intend to introduce at trial;
    (e)  Any photograph, photocopy or other reproduction made by or at the
  direction of a police  officer,  peace  officer  or  prosecutor  of  any
  property  prior  to  its  release  pursuant to the provisions of section
  450.10 of the penal law, irrespective of whether the  people  intend  to
  introduce  at  trial  the property or the photograph, photocopy or other
  reproduction.
    (f)  Any other property obtained from the defendant, or a co-defendant
  to be tried jointly;
    (g)  Any tapes or other electronic  recordings  which  the  prosecutor
  intends  to  introduce  at trial, irrespective of whether such recording
  was made during the course of the criminal transaction;
    (h)   Anything required to  be  disclosed,  prior  to  trial,  to  the
  defendant  by the prosecutor, pursuant to the constitution of this state
  or of the United States.
    (i) The approximate date, time and place of the offense charged and of
  defendant's arrest.
    (j) In any prosecution under penal law section 156.05 or  156.10,  the
  time,  place  and  manner of notice given pursuant to subdivision six of
  section 156.00 of such law.
    (k) in any prosecution  commenced  in  a  manner  set  forth  in  this
  subdivision  alleging  a  violation  of  the vehicle and traffic law, in
  addition to any material required  to  be  disclosed  pursuant  to  this
  article,  any  other provision of law, or the constitution of this state
  or of the United States, any written  report  or  document,  or  portion
  thereof,  concerning  a  physical  examination,  a  scientific  test  or
  experiment,  including  the  most  recent  record  of   inspection,   or
  calibration  or  repair  of  machines or instruments utilized to perform
  such scientific tests or experiments and the certification  certificate,
  if  any,  held by the operator of the machine or instrument, which tests
  or examinations were made by or at the request or direction of a  public
  servant  engaged  in  law  enforcement  activity  or which was made by a
  person whom the prosecutor intends to call as a  witness  at  trial,  or
  which the people intend to introduce at trial.
    2.    The  prosecutor  shall  make  a  diligent,  good faith effort to
  ascertain the existence of demanded property and to cause such  property
  to be made available for discovery where it exists but is not within the
  prosecutor's   possession,   custody  or  control;  provided,  that  the
  prosecutor shall not be required  to  obtain  by  subpoena  duces  tecum
  demanded material which the defendant may thereby obtain.

S 240.30 Discovery; upon demand of prosecutor.
  1. Except to the extent protected by court order, upon a demand to
produce by the prosecutor, a defendant against whom an indictment,
superior court information, prosecutor`s information, information, or
simplified information charging a misdemeanor is pending shall disclose
and make available for inspection, photographing, copying or testing,
subject to constitutional limitations:
  (a) any written report or document, or portion thereof, concerning a
physical or mental examination, or scientific test, experiment, or
comparisons, made by or at the request or direction of, the defendant,
if  the defendant intends to introduce such report or document at trial,
or if the defendant has filed a notice of intent to proffer psychiatric
evidence and such report or document relates thereto, or if such report
or document was made by a person, other than defendant, whom defendant
intends to call as a witness at trial; and
  (b) any photograph, drawing, tape or other electronic recording which
the defendant intends to introduce at trial.
  2.  The defense shall make a diligent good faith effort to make such
property available for discovery where it exists but the property is not
within its possession, custody or control, provided, that the defendant
shall not be required to obtain by subpoena duces tecum demanded
material that the prosecutor may thereby obtain.

S 240.35 Discovery; refusal of demand.
  Notwithstanding the provisions of sections 240.20 and 240.30, the
prosecutor or the defendant, as the case may be, may refuse to disclose
any information which he reasonably believes is not discoverable by a
demand to produce, pursuant to section 240.20 or section 240.30 as the
case may be, or for which he reasonably believes a protective order
would be warranted.  Such refusal shall be made in a writing, which
shall set forth the grounds of such belief as fully as possible,
consistent with the objective of the refusal.  The writing shall be
served upon the demanding party and a copy shall be filed with the
court.

S 240.40 Discovery; upon court order.
   1.  Upon  motion  of  a defendant against whom an indictment, superior
  court information, prosecutor's information, information, or  simplified
  information  charging  a misdemeanor is pending, the court in which such
  accusatory instrument is pending:
    (a) must order discovery as to  any  material  not  disclosed  upon  a
  demand  pursuant  to  section  240.20, if it finds that the prosecutor's
  refusal to disclose such material is not justified; (b) must, unless  it
  is  satisfied  that  the  people have shown good cause why such an order
  should not be issued, order discovery or any other order  authorized  by
  subdivision  one of section 240.70 as to any material not disclosed upon
  demand pursuant to section 240.20 where the  prosecutor  has  failed  to
  serve a timely written refusal pursuant to section 240.35; (c) may order
  discovery with respect to any other property, which the people intend to
  introduce  at  the trial, upon a showing by the defendant that discovery
  with respect to such property is material to the preparation of  his  or
  her  defense, and that the request is reasonable; and (d) where property
  in the people's possession, custody,  or  control  that  consists  of  a
  deoxyribonucleic acid ("DNA") profile obtained from probative biological
  material gathered in connection with the investigation or prosecution of
  the  defendant  and the defendant establishes that such profile complies
  with federal bureau of investigation or  state  requirements,  whichever
  are  applicable  and as such requirements are applied to law enforcement
  agencies seeking a keyboard search or similar comparison, and  that  the
  data  meets state DNA index system or national DNA index system criteria
  as such criteria are applied to law enforcement agencies seeking such  a
  keyboard  search  or  similar  comparison, the court may order an entity
  that has access to the combined DNA index system or its successor system
  to compare such DNA profile against DNA databanks by keyboard  searches,
  or a similar method that does not involve uploading, upon notice to both
  parties and the entity required to perform the search, upon a showing by
  the  defendant that such a comparison is material to the presentation of
  his or her defense and that the request is reasonable. For  purposes  of
  this paragraph, a "keyboard search" shall mean a search of a DNA profile
  against  the  databank  in  which  the  profile  that is searched is not
  uploaded to or maintained in the  databank.  Upon  granting  the  motion
  pursuant  to  paragraph  (c)  of this subdivision, the court shall, upon
  motion of the people showing such to be material to the  preparation  of
  their  case  and  that the request is reasonable, condition its order of
  discovery by further directing discovery by the people of  property,  of
  the  same  kind  or  character as that authorized to be inspected by the
  defendant, which he or she intends to introduce at the trial.
    2. Upon motion  of  the  prosecutor,  and  subject  to  constitutional
  limitation,   the   court   in   which  an  indictment,  superior  court
  information,  prosecutor's  information,  information,   or   simplified
  information  charging a misdemeanor is pending: (a) must order discovery
  as to any property not disclosed  upon  a  demand  pursuant  to  section
  240.30,  if  it  finds  that  the  defendant's  refusal to disclose such
  material is not justified; and (b) may order the  defendant  to  provide
  non-testimonial  evidence.  Such  order may, among other things, require
  the defendant to:
    (i) Appear in a line-up;
    (ii) Speak for identification by witness or potential witness;
    (iii) Be fingerprinted;
    (iv) Pose for photographs not involving reenactment of an event;
    (v) Permit the taking of samples of blood,  hair  or  other  materials
  from  his  body  in  a  manner  not  involving an unreasonable intrusion
  thereof or a risk of serious physical injury thereto;
    (vi) Provide specimens of his handwriting;
    (vii)  Submit  to  a  reasonable physical or medical inspection of his
  body.
    This subdivision shall not be construed to limit, expand, or otherwise
  affect the issuance of a similar court order, as may  be  authorized  by
  law,  before the filing of an accusatory instrument consistent with such
  rights as the defendant may derive from the constitution of  this  state
  or of the United States. This section shall not be construed to limit or
  otherwise  affect  the  adminstration of a chemical test where otherwise
  authorized pursuant to section one thousand one hundred ninety-four-a of
  the vehicle and traffic law.
    3. An order pursuant  to  this  section  may  be  denied,  limited  or
  conditioned as provided in section 240.50.

S 240.43 Discovery; disclosure of prior uncharged criminal, vicious or
         immoral acts.
  Upon a request by a defendant, the prosecutor shall notify the
defendant of all specific instances of a defendant`s prior uncharged
criminal, vicious or immoral conduct of which the prosecutor has
knowledge and which the prosecutor intends to use at trial for purposes
of impeaching the credibility of the defendant.  Such notification by
the prosecutor shall be made immediately prior to the commencement of
jury selection, except that the court may, in its discretion, order such
notification and make its determination as to the admissibility for
impeachment purposes of such conduct within a period of three days,
excluding Saturdays, Sundays and holidays, prior to the commencement of
jury selection.


S 240.44 Discovery; upon pre-trial hearing.
  Subject to a  protective order, at a pre-trial hearing held in a
criminal court at which a witness is called to testify, each party, at
the conclusion of the direct examination of each of its witnesses,
shall, upon request of the other party, make available to that party to
the extent not previously disclosed:
  1. Any written or recorded statement, including any testimony before a
grand jury, made by such witness other than the defendant which relates
to the subject matter of the witness`s testimony.
  2. A record of a judgment of conviction of such witness other than the
defendant if the record of conviction is known by the prosecutor or
defendant, as the case may be, to exist.
  3. The existence of any pending criminal action against such witness
other than the defendant if the pending criminal action is known by the
prosecutor or defendant, as the case may be, to exist.

S 240.45 Discovery; upon trial, of prior statements and criminal history
         of witnesses.
  1.  After the jury has been sworn and before the prosecutor`s opening
address, or in the case of a single judge trial after commencement and
before submission of evidence, the prosecutor shall, subject to a
protective order, make available to the defendant:
  (a)  Any written or recorded statement, including any testimony before
a grand jury and an examination videotaped pursuant to section 190.32 of
this chapter, made by a person whom the prosecutor intends to call as a
witness at trial, and which relates to the subject matter of the
witness`s testimony;
  (b)  A record of judgment of conviction of a witness the people intend
to call at trial if the record of conviction is known by the prosecutor
to exist;
  (c)  The existence of any pending criminal action against a witness
the people intend to call at trial, if the pending criminal action is
known by the prosecutor to exist.
  The provisions of paragraphs (b) and (c) of this subdivision shall not
be construed to require the prosecutor to fingerprint a witness or
otherwise cause the division of criminal justice services or other law
enforcement agency or court to issue a report concerning a witness.
  2.  After presentation of the people`s direct case and before the
presentation of the defendant`s direct case, the defendant shall,
subject to a protective order, make available to the prosecutor:
  (a) any written or recorded statement made by a person other than the
defendant whom the defendant intends to call as a witness at the trial,
and which relates to the subject matter of the witness`s testimony;
  (b) a record of judgment of conviction of a witness, other than the
defendant, the defendant intends to call at trial if the record of
conviction is known by the defendant to exist;
  (c) the existence of any pending criminal action against a witness,
other than the defendant, the defendant intends to call at trial, if the
pending criminal action is known by the defendant to exist.

S 240.50 Discovery; protective orders.
  1.  The court in which the criminal action is pending may, upon motion
of either party, or of any affected person, or upon determination of a
motion of either party for an order of discovery, or upon its own
initiative, issue a protective order denying, limiting, conditioning,
delaying or regulating discovery pursuant to this article for good
cause, including constitutional limitations, danger to the integrity of
physical evidence or a substantial risk of physical harm, intimidation,
economic reprisal, bribery or unjustified annoyance or embarrassment to
any person or an adverse effect upon the legitimate needs of law
enforcement, including the protection of the confidentiality of
informants, or any other factor or set of factors which outweighs the
usefulness of the discovery.
  2.  An order limiting, conditioning, delaying or regulating discovery
may, among other things, require that any material copied or derived
therefrom be maintained in the exclusive possession of the attorney for
the discovering party and be used for the exclusive purpose of preparing
for the defense or prosecution of the criminal action.
  3.  A motion for a protective order shall suspend discovery of the
particular matter in dispute.
  4. Notwithstanding any other provision of this article, the personal
residence address of a police officer or correction officer shall not be
required to be disclosed except pursuant to an order issued by a court
following a finding of good cause.

S 240.60 Discovery; continuing duty to disclose.
  If, after complying with the provisions of this article or an order
pursuant thereto, a party finds, either before or during trial,
additional material subject to discovery or covered by such order, he
shall promptly comply with the demand or order, refuse to comply with
the demand where refusal is authorized, or apply for a protective order.

S 240.70 Discovery; sanctions; fees.
  1.  If, during the course of discovery proceedings, the court finds
that a party has failed to comply with any of the provisions of this
article, the court may order such party to permit discovery of the
property not previously disclosed, grant a continuance, issue a
protective order, prohibit the introduction of certain evidence or the
calling of certain witnesses or take any other appropriate action.
  2.  The failure of the prosecution to call as a witness a person
specified in subdivision one of section 240.20 of this article or of any
party to introduce disclosed material at the trial shall not, by itself,
constitute grounds for any sanction or for adverse comment thereupon by
any party in summation to the jury or at any other point.
  3.  A fee for copies of records required to be disclosed may be
charged.  Such fee shall not exceed twenty-five cents per photocopy not
in excess of nine inches by fourteen inches, or the actual cost of
reproducing any other record, except when a different fee is otherwise
prescribed by law.

S 240.75 Discovery; certain violations.
  The failure of the prosecutor or any agent of the prosecutor to
disclose statements that are required to be disclosed under subdivision
one of section 240.44 or paragraph (a) of subdivision one of section
240.45 of this article shall not constitute grounds for any court to
order a new pre-trial hearing or set aside a conviction, or reverse,
modify or vacate a judgment of conviction in the absence of a showing by
the defendant that there is a reasonable possibility that the
non-disclosure materially contributed to the result of the trial or
other proceeding; provided, however, that nothing in this section shall
affect or limit any right the defendant may have to a re-opened
pre-trial hearing when such statements were disclosed before the close
of evidence at trial.

S 240.80 Discovery; when demand, refusal and compliance made.
  1.  A demand to produce shall be made within thirty days after
arraignment and before the commencement of trial.  If the defendant is
not represented by counsel, and has requested an adjournment to obtain
counsel or to have counsel assigned, the thirty-day period shall
commence, for purposes of a demand by the defendant, on the date counsel
initially appears on his behalf.  However, the court may direct
compliance with a demand to produce that, for good cause shown, could
not have been made within the time specified.
  2.  A refusal to comply with a demand to produce shall be made within
fifteen days of the service of the demand to produce, but for good cause
may be made thereafter.
  3.  Absent a refusal to comply with a demand to produce, compliance
with such demand shall be made within fifteen days of the service of the
demand or as soon thereafter as practicable.

S 240.90 Discovery; motion procedure.
  1.  A motion by a prosecutor for discovery shall be made within
forty-five days after arraignment, but for good cause shown may be made
at any time before commencement of trial.
  2.  A motion by a defendant for discovery shall be made as prescribed
in section 255.20 of this chapter.
  3.  Where the interests of justice so require, the court may permit a
party to a motion for an order of discovery or a protective order, or
other affected person, to submit papers or to testify ex parte or in
camera.  Any such papers and transcript of such testimony shall be
sealed, but shall constitute a part of the record on appeal.

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