N.Y. Criminal Procedure Law § 200.95: Indictment; bill of particulars

§ 200.95 Indictment; bill of particulars.

1. Definitions. (a) "Bill of particulars" is a written statement by

the prosecutor specifying, as required by this section, items of factual

information which are not recited in the indictment and which pertain to

the offense charged and including the substance of each defendant's

conduct encompassed by the charge which the people intend to prove at

trial on their direct case, and whether the people intend to prove that

the defendant acted as principal or accomplice or both, and items of

factual information which are not recited in a special forfeiture

information or prosecutor's forfeiture information containing one or

more forfeiture counts and which pertain to the substance of each

defendant's conduct giving rise to the forfeiture claim, the approximate

value of property for which forfeiture is sought, the nature and extent

of the defendant's interest in such property, and the extent of the

defendant's gain, if any, from the offense charged. However, the

prosecutor shall not be required to include in the bill of particulars

matters of evidence relating to how the people intend to prove the

elements of the offense charged or how the people intend to prove any

item of factual information included in the bill of particulars.

(b) "Request for a bill of particulars" is a written request served by

defendant upon the people, without leave of the court, requesting a bill

of particulars, specifying the items of factual information desired, and

alleging that defendant cannot adequately prepare or conduct his defense

without the information requested.

2. Bill of particulars upon request. Upon a timely request for a bill

of particulars by a defendant against whom an indictment is pending, the

prosecutor shall within fifteen days of the service of the request or as

soon thereafter as is practicable, serve upon the defendant or his

attorney, and file with the court, the bill of particulars, except to

the extent the prosecutor shall have refused to comply with the request

pursuant to subdivision four of this section.

3. Timeliness of request. A request for a bill of particulars shall be

timely if 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 the purposes of a

request for a bill of particulars by the defendant, on the date counsel

initially appears on his behalf. However, the court may direct

compliance with a request for a bill of particulars that, for good cause

shown, could not have been made within the time specified.

4. Request refused. The prosecutor may refuse to comply with the

request for a bill of particulars or any portion of the request for a

bill of particulars to the extent he reasonably believes that the item

of factual information requested is not authorized to be included in a

bill of particulars, or that such information is not necessary to enable

the defendant adequately to prepare or conduct his defense, or that a

protective order would be warranted or that the demand is untimely. Such

refusal shall be made in a writing, which shall set forth the grounds of

such belief as fully as possible, consistent with the reason for the

refusal. Within fifteen days of the request or as soon thereafter as

practicable, the refusal shall be served upon the defendant and a copy

shall be filed with the court.

5. Court ordered bill of particulars. Where a prosecutor has timely

served a written refusal pursuant to subdivision four of this section

and upon motion, made in writing, of a defendant, who has made a request

for a bill of particulars and whose request has not been complied with

in whole or in part, the court must, to the extent a protective order is

not warranted, order the prosecutor to comply with the request if it is

satisfied that the items of factual information requested are authorized

to be included in a bill of particulars, and that such information is

necessary to enable the defendant adequately to prepare or conduct his

defense and, if the request was untimely, a finding of good cause for

the delay. Where a prosecutor has not timely served a written refusal

pursuant to subdivision four of this section the court must, unless it

is satisfied that the people have shown good cause why such an order

should not be issued, issue an order requiring the prosecutor to comply

or providing for any other order authorized by section 245.80 of this

part.

6. Motion procedure. A motion for a bill of particulars shall be made

as prescribed in section 255.20. Upon an order granting a motion

pursuant to this section, the prosecutor must file with the court a bill

of particulars, reciting every item of information designated in the

order, and serve a copy thereof upon the defendant. Pending such filing

and service, the proceedings are stayed.

7. Protective order. (a) The court in which the criminal action is

pending may, upon motion of the prosecutor, or of any affected person,

or upon determination of a motion of defendant for a court ordered bill

of particulars, or upon its own initiative, issue a protective order

denying, limiting, conditioning, delaying or regulating the bill of

particulars 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 need for the bill of particulars.

(b) An order limiting, conditioning, delaying or regulating the bill

of particulars may, among other things, require that any material copied

or derived therefrom be maintained in the exclusive possession of the

attorney for the defendant and be used for the exclusive purpose of

preparing for the defense of the criminal action.

8. Amendment. At any time before commencement of trial, the prosecutor

may, without leave of the court, serve upon defendant and file with the

court an amended bill of particulars. At any time during trial, upon

application of the prosecutor and with notice to the defendant and an

opportunity for him to be heard, the court must, upon finding that no

undue prejudice will accrue to defendant and that the prosecutor has

acted in good faith, permit the prosecutor to amend the bill of

particulars. Upon any amendment of the bill of particulars, the court

must, upon application of defendant, order an adjournment of the

proceedings or any other action it deems appropriate which may, by

reason of the amendment, be necessary to accord the defendant an

adequate opportunity to defend.