N.Y. Criminal Procedure Law § 245.30: Court orders for preservation, access or discovery

§ 245.30 Court orders for preservation, access or discovery.

1. Order to preserve evidence. At any time, a party may move for a

court order to any individual, agency or other entity in possession,

custody or control of items which are required to be disclosed under

subdivision one of section 245.20 of this article, requiring that such

items be preserved for a specified period of time. The court shall hear

and rule upon such motions expeditiously. The court may modify or vacate

such an order upon a showing that preservation of particular evidence

will create significant hardship to such individual, agency or entity,

on condition that the probative value of that evidence is preserved by a

specified alternative means.

2. Order to grant access to premises. Without prejudice to its ability

to issue a subpoena pursuant to this chapter and after an accusatory

instrument has been filed, the defendant may move, upon notice to the

prosecution and any impacted individual, agency, or entity, for a court

order to access a crime scene or other premises relevant to the subject

matter of the case, requiring that counsel for the defendant be granted

reasonable access to inspect, photograph, or measure such crime scene or

premises, and that the condition of the crime scene or premises remain

unchanged in the interim. The court shall consider defendant's expressed

need for access to the premises including the risk that defendant will

be deprived of evidence or information relevant to the case, the

position of any individual or entity with possessory or ownership rights

to the premises, the nature of the privacy interest and any perceived or

actual hardship of the individual or entity with possessory or ownership

rights, and the position of the prosecution with respect to any

application for access to the premises. The court may deny access to the

premises when the probative value of access to such location has been or

will be preserved by specified alternative means. If the court grants

access to the premises, the individual or entity with ownership or

possessory rights to the premises may request law enforcement presence

at the premises while defense counsel or a representative thereof is

present.

3. Discretionary discovery by order of the court. The court in its

discretion may, upon a showing by the defendant that the request is

reasonable and that the defendant is unable without undue hardship to

obtain the substantial equivalent by other means, order the prosecution,

or any individual, agency or other entity subject to the jurisdiction of

the court, to make available for disclosure to the defendant any

material or information which relates to the subject matter of the case

and is reasonably likely to be material. A motion under this subdivision

must be on notice to any person or entity affected by the order. The

court may, on its own, upon request of any person or entity affected by

the order, modify or vacate the order if compliance would be

unreasonable or will create significant hardship. For good cause shown,

the court may permit a party seeking or opposing a discretionary order

of discovery under this subdivision, or another affected person or

entity, to submit papers or testify on the record ex parte or in camera.

For good cause shown, any such papers and a transcript of such testimony

may be sealed and shall constitute a part of the record on appeal.