N.Y. Criminal Procedure Law § 10.40: Chief administrator to prescribe forms and to authorize use of electronic filing

§ 10.40 Chief administrator to prescribe forms and to authorize use of

electronic filing.

1. The chief administrator of the courts shall have the power to

adopt, amend and rescind forms for the efficient and just administration

of this chapter. Such forms shall include, without limitation, the forms

described in paragraph (z-1) of subdivision two of section two hundred

twelve of the judiciary law. A failure by any party to submit papers in

compliance with forms authorized by this section shall not be grounds

for that reason alone for denial or granting of any motion.

2. (a) Notwithstanding any other provision of law, the chief

administrator, with the approval of the administrative board of the

courts, may promulgate rules authorizing a program in the use of

electronic means ("e-filing") in the courts of New York having criminal

jurisdiction for: (i) the filing with a court of an accusatory

instrument for the purpose of commencement of a criminal action or

proceeding, and (ii) the filing and service of papers in pending actions

and proceedings. Provided, however, the chief administrator shall

consult with the county clerk of a county outside the city of New York

before the use of electronic means is to be authorized hereunder in the

supreme court or county court of such county, afford him or her the

opportunity to submit comments with respect thereto, consider any such

comments and obtain the agreement thereto of such county clerk.

(b) Participation in this program may be required or may be voluntary

as provided by the chief administrator, except that it shall be strictly

voluntary as to any party to an action or proceeding who is not

represented by counsel unless such party, upon his or her request,

chooses to participate.

(c) (i) Where participation in this program is to be voluntary: (A)

filing an accusatory instrument by electronic means with the court for

the purpose of commencement of an action or proceeding shall not require

the consent of any other party; nor shall a party's failure to consent

to participation in an action or proceeding bar any other party to such

action or proceeding from filing and serving papers by facsimile

transmission or electronic means upon the court or any other party to

such action or proceeding who has consented to participation;

(B) all parties shall be notified clearly, in plain language, about

their options to participate in filing by electronic means;

(C) no party to an action or proceeding shall be compelled, directly

or indirectly, to participate;

(D) where a party is not represented by counsel, the court shall

explain such party's options for electronic filing in plain language,

including the option for expedited processing, and shall inquire whether

he or she wishes to participate, provided however the unrepresented

litigant may participate in the program only upon his or her request,

which shall be documented in the case file, after said party has been

presented with sufficient information in plain language concerning the

program.

(ii) Where participation in this program is to be required:

(A) such requirement shall not be effective in a court in a county

unless, in addition to consulting with the county clerk of such county

and obtaining his or her agreement thereto if the court is a supreme

court or county court, the chief administrator shall:

(1) first consult with and obtain the agreement of the district

attorney and the criminal defense bar of such county, provide all

persons and organizations, or their representative or representatives,

who regularly appear in criminal actions or proceedings in the criminal

courts of such county with reasonable notice and opportunity to submit

comments with respect thereto and give due consideration to all such

comments, and consult with the members of the advisory committee

specified in subparagraph (v) of paragraph (u) of subdivision two of

section two hundred twelve of the judiciary law; and

(2) afford all those with whom he or she consults pursuant to item one

of this clause the opportunity to submit comments with respect to the

program, which comments, including but not limited to comments related

to unrepresented litigants, he or she shall consider and shall post for

public review on the office of court administration's website; and

(B) as provided in paragraph (d) of this subdivision, no party who is

not represented by counsel nor any counsel in an affected case who opts

out of participation in the program shall be required to participate

therein.

(d) Where the chief administrator requires participation in electronic

filing as provided in paragraph (b) of this subdivision, he or she shall

afford counsel the opportunity to opt out of the program, via

presentation of a prescribed form to be filed with the court where the

criminal action is pending. Said form shall permit an attorney to opt

out of participation in the program under any of the following

circumstances, in which event, he or she will not be compelled to

participate:

(i) Where the attorney certifies in good faith that he or she lacks

appropriate computer hardware and/or connection to the internet and/or

scanner or other device by which documents may be converted to an

electronic format; or

(ii) Where the attorney certifies in good faith that he or she lacks

the requisite knowledge in the operation of such computers and/or

scanners necessary to participate. For the purposes of this

subparagraph, the knowledge of any employee of an attorney, or any

employee of the attorney's law firm, office or business who is subject

to such attorney's direction, shall be imputed to the attorney.

Notwithstanding the foregoing provisions of this paragraph: (A) where

a party is not represented by counsel, the clerk shall explain such

party's options for electronic filing in plain language, including the

option for expedited processing, and shall inquire whether he or she

wishes to participate, provided however the unrepresented litigant may

participate in the program only upon his or her request, which shall be

documented in the case file, after said party has been presented with

sufficient information in plain language concerning the program; (B) a

party not represented by counsel who has chosen to participate in the

program shall be afforded the opportunity to opt out of the program for

any reason via presentation of a prescribed form to be filed with the

clerk of the court where the proceeding is pending; and (C) a court may

exempt any attorney from being required to participate in the program

upon application for such exemption, showing good cause therefor.

(e)(i) Nothing in this section shall affect or change any existing

laws governing the sealing and confidentiality of court records in

criminal proceedings or access to court records by the parties to such

proceedings, nor shall this section be construed to compel a party to

file a sealed document by electronic means.

(ii) Notwithstanding any other provision of this section, no paper or

document that is filed by electronic means in a criminal proceeding

shall be available for public inspection on-line. Subject to the

provisions of existing laws governing the sealing and confidentiality of

court records, nothing herein shall prevent the unified court system

from sharing statistical information that does not include any papers or

documents filed with the action; and, provided further, that this

paragraph shall not prohibit the chief administrator, in the exercise of

his or her discretion, from posting papers or documents that have not

been sealed pursuant to law on a public website maintained by the

unified court system where: (A) the website is not the website

established by the rules promulgated pursuant to paragraph (a) of this

subdivision, and (B) to do so would be in the public interest. For

purposes of this subparagraph, the chief administrator, in determining

whether posting papers or documents on a public website is in the public

interest, shall, at a minimum, take into account for each posting the

following factors: (A) the type of case involved; (B) whether such

posting would cause harm to any person, including especially a minor or

crime victim; (C) whether such posting would include lewd or scandalous

matters; and (D) the possibility that such papers or documents may

ultimately be sealed.

(iii) Nothing in this section shall affect or change existing laws

governing service of process, nor shall this section be construed to

abrogate existing personal service requirements as set forth in the

criminal procedure law.

3. For purposes of this section, the following terms shall have the

following meanings:

(a) "Consent of the criminal defense bar" shall mean that consent has

been obtained from all provider offices and/or organizations in the

county that represented twenty-five percent or more of the persons

represented by public defense providers pursuant to section seven

hundred twenty-two of the county law, as shown in the most recent annual

reports filed pursuant to subdivision one of section seven hundred

twenty-two-f of the county law. Such consent, when given, must be

expressed in a written document that is provided by a person who is

authorized to consent on behalf of the relevant public defender

organization, agency or office; and

(b) "Electronic means" shall be as defined in subdivision (f) of rule

twenty-one hundred three of the civil practice law and rules; and

(c) The "filing and service of papers in pending criminal actions and

proceedings" shall include the filing and service of a notice of appeal

pursuant to section 460.10 of this chapter.