N.Y. Criminal Procedure Law § 245.80: Remedies or sanctions for non-compliance

§ 245.80 Remedies or sanctions for non-compliance.

1. Need for remedy or sanction. (a) When material or information is

discoverable under this article but is disclosed belatedly, the court

shall impose a remedy or sanction that is appropriate and proportionate

to the prejudice suffered by the party entitled to disclosure.

Regardless of a showing of prejudice the party entitled to disclosure

shall be given reasonable time to prepare and respond to the new

material.

(b) When material or information is discoverable under this article

but cannot be disclosed because it has been lost or destroyed, the court

shall impose an appropriate remedy or sanction if the party entitled to

disclosure shows that the lost or destroyed material may have contained

some information relevant to a contested issue. The appropriate remedy

or sanction is that which is proportionate to the potential ways in

which the lost or destroyed material reasonably could have been helpful

to the party entitled to disclosure.

2. Available remedies or sanctions. For failure to comply with any

discovery order imposed or issued pursuant to this article, the court

may make a further order for discovery, grant a continuance, order that

a hearing be reopened, order that a witness be called or recalled,

instruct the jury that it may draw an adverse inference regarding the

non-compliance, preclude or strike a witness's testimony or a portion of

a witness's testimony, admit or exclude evidence, order a mistrial,

order the dismissal of all or some of the charges provided that, after

considering all other remedies, dismissal is appropriate and

proportionate to the prejudice suffered by the party entitled to

disclosure, or make such other order as it deems just under the

circumstances; except that any sanction against the defendant shall

comport with the defendant's constitutional right to present a defense,

and precluding a defense witness from testifying shall be permissible

only upon a finding that the defendant's failure to comply with the

discovery obligation or order was willful and motivated by a desire to

obtain a tactical advantage.

3. Consequences of non-disclosure of statement of testifying

prosecution witness. The failure of the prosecutor or any agent of the

prosecutor to disclose any written or recorded statement made by a

prosecution witness which relates to the subject matter of the witness's

testimony 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 reopened pre-trial hearing when

such statements were disclosed before the close of evidence at trial.