N.Y. Criminal Procedure Law § 245.20: Automatic discovery

§ 245.20 Automatic discovery.

1. Initial discovery for the defendant. The prosecution shall disclose

to the defendant, and permit the defendant to discover, inspect, copy,

photograph and test the following material and information in the

possession, custody or control of the prosecution or persons under the

prosecution's direction or control:

(a) 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

their direction or in cooperation with them that relate to the subject

matter of the charges against the defendant or co-defendant in the

instant case, or a defense thereto.

(b) All transcripts of the testimony of a person who has testified

before a grand jury that relate to the subject matter of the charges

against the defendant in the instant case, 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 subdivision 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 thirty calendar days before the

first scheduled trial date, 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.

(c) 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

potential defense thereto, including a designation by the prosecutor as

to which of those persons may be called as witnesses. Nothing in this

paragraph 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

230.34-a 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

otherwise for good cause shown.

(d) 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

designation 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,

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 otherwise for

good cause shown.

(e) All statements related to the subject matter of the case, 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, law enforcement agency reports, and

statements, written or recorded or summarized in any writing or

recording, by persons to be called as witnesses at pre-trial hearings.

(f) Expert opinion evidence, including the name, business address,

current curriculum vitae, a list of publications, and a list of

proficiency tests and results administered or taken within the past ten

years of each expert witness whom the prosecutor intends to call as a

witness at trial or a pre-trial hearing, and all reports prepared by the

expert that pertain to the case, or if no report is prepared, a written

statement of the facts and opinions to which the expert is expected to

testify and a summary of the grounds for each opinion. This paragraph

does not alter or in any way affect the procedures, obligations or

rights set forth in section 250.10 of this title. If in the exercise of

reasonable diligence this information is unavailable for disclosure

within the time period specified in 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 sixty calendar days before the

first scheduled trial date, unless an order is obtained pursuant to

section 245.70 of this article. When the prosecution's expert witness is

being called in response to disclosure of an expert witness by the

defendant, the court shall alter a scheduled trial date, if necessary,

to allow the prosecution thirty calendar days to make the disclosure and

the defendant thirty calendar days to prepare and respond to the new

materials.

(g) 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, along with 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 as soon as practicable and not less than fifteen calendar days

after the defendant's request, unless an order is obtained pursuant to

section 245.70 of this article. The prosecution may withhold the names

and identifying information of any person who contacted 911 without the

need for a protective order pursuant to section 245.70 of this article,

provided, however, the defendant may move the court for disclosure. If

the prosecution intends to call such person as a witness at a trial or

hearing, the prosecution must disclose the name and contact information

of such witness no later than fifteen days before such trial or hearing,

or as soon as practicable.

(h) All photographs and drawings that relate to the subject matter of

the charges against the defendant in the instant case or a defense

thereto 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.

(i) All photographs, photocopies and reproductions made by or at the

direction of law enforcement personnel of any property that relate to

the subject matter of the charges against the defendant in the instant

case or a defense thereto prior to its release pursuant to section

450.10 of the penal law.

(j) 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

prosecutor 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

hearing. 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

protocols, and any conflicting analyses or results by laboratory

personnel regardless of the laboratory's final analysis or results. If

the prosecution 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

materials under this paragraph to be made available for disclosure. The

prosecution 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.

(k) All evidence and information that relate to the subject matter of

the case, including that which is known to police or other law

enforcement agencies acting on the government's behalf in the case, that

tends to: (i) negate the defendant's guilt as to a charged offense; (ii)

reduce the degree of or mitigate the defendant's culpability as to a

charged offense; (iii) support a potential defense to a charged offense;

(iv) impeach the credibility of a testifying prosecution witness; (v)

undermine evidence of the defendant's identity as a perpetrator of a

charged offense; (vi) provide a basis for a motion to suppress evidence;

or (vii) mitigate punishment. Information under this subdivision shall

be disclosed whether or not such information is recorded in tangible

form and irrespective of whether the prosecutor credits the information.

The prosecutor shall disclose the information expeditiously upon its

receipt and shall not delay disclosure if it is obtained earlier than

the time period for disclosure in subdivision one of section 245.10 of

this article.

(l) A summary of all promises, rewards and inducements made in

connection with the instant case to, or in favor of, persons who may be

called as witnesses, as well as requests for consideration by persons

who may be called as witnesses and copies of all documents relevant to a

promise, reward or inducement.

(m) A list of all tangible objects obtained from, or allegedly

possessed by, the defendant or a co-defendant in connection with the

criminal action or proceeding. The list shall include a designation 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 prosecution 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.

(n) Whether a search warrant has been executed in connection with the

criminal action or proceeding and all documents relating 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.

(o) All tangible property that relates to the subject matter of the

case, along with a designation of which items 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.

(p) A complete record of judgments of conviction for all defendants

and all persons designated as potential prosecution witnesses pursuant

to paragraph (c) of this subdivision, other than those witnesses who are

experts.

(q) When it is known to the prosecution, the existence of any pending

criminal action against all persons designated as potential prosecution

witnesses pursuant to paragraph (c) of this subdivision.

(r) The approximate date, time and place of the offense or offenses

charged and of the defendant's seizure and arrest.

(s) In any prosecution alleging a violation of the vehicle and traffic

law, where the defendant is charged by indictment, superior court

information, prosecutor's information, information, or simplified

information, all records of calibration, certification, inspection,

repair or maintenance of machines and instruments utilized to perform

any scientific tests and experiments, including but not limited to any

test of a person's breath, blood, urine or saliva, for the period of six

months prior and six months after such test was conducted, including the

records of gas chromatography related to the certification of all

reference standards and the certification certificate, if any, held by

the operator of the machine or instrument. The time period required by

subdivision one of section 245.10 of this article shall not apply to the

disclosure of records created six months after a test was conducted, but

such disclosure shall be made as soon as practicable and in any event,

the earlier of fifteen days following receipt, or fifteen days before

the first scheduled trial date.

(t) 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.

(u) (i) A copy of all electronically created or stored information

seized or obtained by or on behalf of law enforcement from: (A) the

defendant as described in subparagraph (ii) of this paragraph; or (B) a

source other than the defendant which relates to the subject matter of

the charges against the defendant in the instant case or a defense

thereto.

(ii) If the electronically created or stored information originates

from a device, account, or other electronically stored source that the

prosecution 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.

(iii) 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 information 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 regular and reasonable hours for such access, such as a

prosecutor's office, police station, or court.

(iv) 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

constitution 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

forty-five calendar days before the first scheduled trial date, unless

an order is obtained pursuant to section 245.70 of this article.

(v) Any other material and information relevant to the subject matter

of the charges against the defendant in the instant case or a defense

thereto that are not designated in paragraphs (a) through (u) of this

subdivision.

2. Duties of the prosecution. The prosecutor shall make a diligent,

good faith effort to ascertain the existence of material or information

discoverable under subdivision one of this section and to cause such

material or information to be made available for discovery where it

exists but is not within the prosecutor's possession, custody or

control. The prosecutor shall not be required to obtain material or

information if it may be obtained with use of a subpoena duces tecum

where the defense is able to obtain the same material with the use of a

subpoena duces tecum. For purposes of subdivision one of this section,

all items and information related to the prosecution of a charge in the

possession of any New York state or local police or law enforcement

agency shall be deemed to be in the possession of the prosecution. The

prosecution shall also identify any laboratory having contact with

evidence related to the prosecution of a charge. This subdivision shall

not require the prosecutor to ascertain the existence of witnesses not

known to the police or another law enforcement agency, or the written or

recorded statements thereof, under paragraph (c) or (e) of subdivision

one of this section.

3. Supplemental discovery for the defendant. The prosecution shall

disclose to the defendant a list of all misconduct and criminal acts of

the defendant not charged in the indictment, superior court information,

prosecutor's information, information, or simplified information, which

the prosecution intends to use at trial for purposes of (a) impeaching

the credibility of the defendant, or (b) as substantive proof of any

material issue in the case. In addition the prosecution shall designate

whether it intends to use each listed act for impeachment and/or as

substantive proof.

4. Reciprocal discovery for the prosecution. (a) The defendant shall,

subject to constitutional limitations, disclose to the prosecution, and

permit the prosecution to discover, inspect, copy or photograph, any

material and relevant evidence within the defendant's or counsel for the

defendant's possession or control that is discoverable under paragraphs

(f), (g), (h), (j), (l) and (o) of subdivision one of this section,

which the defendant intends to introduce at trial or a pre-trial

hearing, and the names, addresses, birth dates, and all statements,

written or recorded or summarized in any writing or recording, of those

persons other than the defendant whom the defendant intends to call as

witnesses at trial or a pre-trial hearing.

(b) Disclosure of the name, address, birth date, and all statements,

written or recorded or summarized in any writing or recording, of a

person whom the defendant intends to call as a witness for the sole

purpose of impeaching a prosecution witness is not required until after

the prosecution witness has testified at trial.

(c) If in the exercise of reasonable diligence the reciprocally

discoverable information under paragraph (f) or (o) of subdivision one

of this section is unavailable for disclosure within the time period

specified in subdivision two of section 245.10 of this article, such

time period 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.

5. Stay of automatic discovery; remedies and sanctions. Section 245.10

and subdivisions one, two, three and four of this section shall have the

force and effect of a court order, and failure to provide discovery

pursuant to such section or subdivision may result in application of any

remedies or sanctions permitted for non-compliance with a court order

under section 245.80 of this article. However, if in the judgment of

either party good cause exists for declining to make any of the

disclosures set forth above, such party may move for a protective order

pursuant to section 245.70 of this article and production of the item

shall be stayed pending a ruling by the court. The opposing party shall

be notified in writing that information has not been disclosed under a

particular section. When some parts of material or information are

discoverable but in the judgment of a party good cause exists for

declining to disclose other parts, the discoverable parts shall be

disclosed and the disclosing party shall give notice in writing that

non-discoverable parts have been withheld.

6. Redactions permitted. (a) Either party may redact the following

without the need to move for a protective order pursuant to section

245.70 of this article: social security numbers; tax numbers; the

physical addresses or other forms of contact information of witnesses,

provided that for any witness disclosed under paragraph (c) of

subdivision one of this section, the disclosing party provides at least

one form of adequate contact information; and material or information

not otherwise required to be disclosed under subdivision one of this

section, so long as the party making redactions based on the material

not being required to be disclosed under subdivision one of this section

provides the underlying reason for the redactions.

(b) If the contact information disclosed pursuant to paragraph (a) of

this subdivision is incorrect or inoperative, the party that made the

disclosure shall, upon request, furnish an alternative form of adequate

contact information for such witness.

7. Presumption of openness. There shall be a presumption in favor of

disclosure when interpreting sections 245.10 and 245.25, and subdivision

one of section 245.20, of this article.