STATE OF NEW YORK ________________________________________________________________________ 3346 2017-2018 Regular Sessions IN SENATE January 20, 2017 ___________ Introduced by Sens. BAILEY, DILAN, MONTGOMERY, PARKER, PERKINS -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to exculpatory material The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The criminal procedure law is amended by adding a new 2 section 240.25 to read as follows: 3 § 240.25 Disclosure of information exculpatory to the defense. 4 1. Definition. Exculpatory information includes, but is not limited 5 to, information that is material and favorable to the accused because 6 the information: 7 (a) casts doubt on whether the conduct of the accused satisfied one or 8 more of the elements of a crime charged in the indictment, information, 9 or other charging instrument; 10 (b) casts doubt on whether the crime charged occurred; 11 (c) casts doubt on the admissibility of evidence that the prosecutor 12 anticipates offering in the prosecution's case-in-chief because the 13 information provides a basis for a motion to suppress or exclude such 14 evidence; 15 (d) casts doubt on the credibility or accuracy of testimony or other 16 evidence that the prosecutor anticipates offering in his or her case-in- 17 chief; 18 (e) diminishes the degree of the accused's culpability or the level of 19 offense charged; 20 (f) supports a defense to the charge or charges pending against the 21 accused; 22 (g) mitigates, reduces or affects the sentence that must or might be 23 imposed; EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD08072-01-7

S. 3346 2 1 (h) tends to lead to information that would satisfy paragraphs (a) 2 through (g) of this subdivision. 3 2. Timing of first delivery of information. Without a motion by the 4 defense, the following information must be disclosed and delivered by 5 the prosecution to the defense within twenty-eight days of arraignment 6 on the first charging instrument: 7 (a) information that casts doubt on the guilt of the accused of any 8 charge in the indictment, information or other charging instrument; 9 (b) information that casts doubt on the admissibility of evidence that 10 the prosecutor anticipates offering in his or her case-in-chief and that 11 could be the basis of a motion to suppress or exclude; 12 (c) a statement as to whether any promise, reward, or inducement has 13 been given to any witness whom the prosecutor anticipates calling in his 14 or her case-in-chief, identifying by name each such witness and each 15 promise, reward, or inducement, and a copy of any promise, reward, or 16 inducement that has been reduced to writing or print; 17 (d) a copy of any criminal record of any witness identified by name 18 whom the prosecutor anticipates calling in his or her case-in-chief 19 including the court of conviction, the crime of which the witness was 20 convicted, the date of the conviction, and the number of the case; 21 (e) a written statement setting out criminal charges pending against a 22 witness, who shall be identified by name, whom the prosecutor antic- 23 ipates calling in his or her case-in-chief; 24 (f) a written statement setting out the failure of a potential 25 witness, who shall be identified by name, to make a positive identifica- 26 tion of the accused in an identification procedure that has been held 27 with such a witness with respect to the crime; 28 (g) a written or oral statement from any person or other information 29 that tends to support a defense to the charges. 30 3. Pretrial delivery. Without a motion by the defense, the following 31 information must be disclosed and delivered not later than twenty-one 32 days prior to the date first set for trial: 33 (a) information that casts doubt on the credibility or accuracy of 34 evidence, including testimony of witnesses, concerning material issues 35 relating to whether a crime was committed and whether the accused 36 committed it, that the prosecutor anticipates presenting in his or her 37 case-in-chief; 38 (b) any inconsistent written or oral statement regarding the alleged 39 criminal conduct of the accused or a description of such statement, made 40 by a person whom the prosecution anticipates calling in his or her case- 41 in-chief; 42 (c) any statement regarding the alleged criminal conduct of the 43 accused or a description of such statement, made orally or in writing by 44 any person, that is inconsistent with a statement made orally or in 45 writing by a witness the prosecution anticipates calling in his or her 46 case-in-chief; 47 (d) any information reflecting bias or prejudice against the defendant 48 by a witness whom the prosecutor anticipates calling in his or her case- 49 in-chief; 50 (e) a written description of any prior bad act that constitutes a 51 crime known by the prosecutor to have been committed by any witness whom 52 the prosecution anticipates calling in his or her case-in-chief; 53 (f) information known or ascertainable to the prosecutor of any mental 54 or physical impairment of any witness whom the prosecutor anticipates 55 calling in his or her case-in-chief that may cast doubt on the ability

S. 3346 3 1 of that witness to observe and accurately and truthfully recall, and to 2 relate information about a relevant event or other material information; 3 (g) any other information that is within the definition set out in 4 subdivision one of this section; 5 (h) anything required to be disclosed, prior to trial, to the defend- 6 ant by the prosecutor, pursuant to the constitution of this state or of 7 the United States. 8 4. Delivery of information. The prosecutor shall disclose to the 9 defendant and make available for inspection, examination, photocopying, 10 copying, print out, retrieval, testing, or interview (for statements 11 previously made but not recorded in writing or mechanically) or by any 12 other method of access, all information including but not limited to 13 that in property, documents, reports, recordings, videos, records, in 14 the knowledge of a person but not recorded (all hereinafter called 15 information) which would provide the information set out in subdivisions 16 one, two, and three of this section regardless of whether such informa- 17 tion would itself constitute admissible evidence at trial or is other- 18 wise known to the defendant. 19 5. Continuing obligation. If at any time after the time periods set 20 forth above the prosecutor learns of additional information required to 21 be disclosed to the defendant pursuant to subdivisions one, two and 22 three of this section, the prosecutor shall, pursuant to the continuing 23 obligation to deliver to the defense the information required by subdi- 24 visions one, two and three of this section, promptly notify the defend- 25 ant and the court of the existence of such information and expeditiously 26 make such items available to the defendant for inspection, photocopying, 27 copying, testing or other reproduction as set out in subdivision four of 28 this section. 29 6. Application to the court. (a) The prosecutor may seek a protective 30 order based on a reasonable showing that a witness or other person would 31 be endangered by disclosure of the information required by this section. 32 If the court finds that the prosecutor has made a reasonable showing 33 that a witness or other person would be endangered by disclosure, the 34 court shall conduct an in camera review of the claim, and, if appropri- 35 ate, redact the information given to the defense until such time as the 36 law or other circumstances of the case require disclosure of the infor- 37 mation. 38 (b) If in the circumstances of a case, the prosecutor, at any time, 39 asserts that information was not delivered or was delivered late or is 40 not exculpatory within the terms of this statute or as required by the 41 state or United States constitutions and was not delivered based on that 42 reason, the court shall make an independent evaluation and determi- 43 nation, after hearing from defense counsel, as to whether the informa- 44 tion should be delivered pursuant to this subdivision. 45 (c) The prosecutor's view of whether the information is truthful or 46 accurate shall not be a factor used by the prosecutor or the court to 47 determine whether the information must be delivered to the defense 48 pursuant to this section. 49 7. Inquiries. Prior to the required dates for the disclosure of infor- 50 mation to the defense, the prosecutor shall make inquiries to learn 51 whether those agencies deemed by law to be assisting the prosecutor are 52 in possession of information defined in subdivisions one, two, and three 53 of this section, and shall obtain the information for delivery to the 54 defense in accord with this section. 55 8. Conference and certification. (a) At a time set by the court before 56 the first designated trial date and at such further times as the court

S. 3346 4 1 orders, the prosecutor shall identify for the court the information that 2 has been delivered to the defense and certify the delivery. The court 3 shall hold a conference to determine whether the prosecutor has examined 4 the prosecutor's file and the files of those assisting the prosecutor 5 and has delivered the required information. 6 (b) If the prosecutor delivers to the defense pursuant to this statute 7 large quantities of information, whether of documents, electronic infor- 8 mation, or other format, without identification of its significance to 9 the case, the court shall establish in the conference the procedure for 10 identification of the information and if needed grant an adjournment for 11 that to be accomplished by the prosecutor and examined by the defense. 12 9. Sanctions for late delivery or failure to deliver information 13 defined in this section. Where there is a failure by the prosecutor to 14 deliver the information set out in this section, or the information is 15 delivered after the required time period, at the request of the defense 16 or in the court's discretion, the court shall order one or more of the 17 following sanctions: 18 (a) grant an appropriate extension of time in the proceeding to allow 19 the defense to examine the information and to investigate based on the 20 late delivered information. For that effort, the court may authorize for 21 the defense investigators, lab tests, experts and other resources to 22 conduct the defense investigation; 23 (b) reopen a pre-trial hearing; 24 (c) preclude introduction of evidence; 25 (d) instruct the jury that the prosecutor has not delivered or deliv- 26 ered only after improper delay evidence that should have been delivered 27 and delivered timely and that the jurors may infer that the information 28 not disclosed was exculpatory or, if not disclosed or disclosed only 29 after undue delay, could have led to exculpatory information as defined 30 in subdivisions one, two and three of this section; 31 (e) notify the supervising prosecutor; 32 (f) refer the matter to the appropriate attorney disciplinary commit- 33 tee pursuant to subdivision ten of this section if after conducting such 34 inquiry as the court deems appropriate and issuing an opinion stating 35 the court's findings, the attorney's conduct is asserted to be improper 36 under the rules of professional conduct. 37 10. Lawyer sanctions. (a) Any judicial opinion which concludes that 38 there was an intentional or reckless failure to comply with this section 39 by a prosecutor shall be forwarded by the clerk of the court in which 40 the opinion is filed to the attorney disciplinary committee with juris- 41 diction. 42 (b) If in connection with the obligation to deliver information set 43 out in this section or the state and United States constitutions, a 44 trial or appellate court has concluded that in the course of a criminal 45 proceeding, a prosecutor has violated rules 3.4(a)(1), 3.4(a)(3) or 46 3.8(b) of the rules of professional conduct, or other relevant statutes 47 and rules, by intentionally or recklessly failing to deliver or timely 48 deliver to the defense the information set out in this section, the 49 conduct shall be referred by the judge pursuant to rule 100.3(D)(2) of 50 the code of judicial conduct to the attorney disciplinary committee of 51 the appropriate judicial district for proceedings pursuant to applicable 52 rules. 53 (c) If an attorney has a reasonable basis to believe that a prosecutor 54 has intentionally or recklessly failed to deliver information as defined 55 in this statute, that attorney shall notify the attorney disciplinary 56 committee of the appropriate judicial district pursuant to rule 8.3(a)

S. 3346 5 1 of the rules of professional conduct for proceedings pursuant to court 2 rules. 3 (d) If more than one event is referred to the attorney disciplinary 4 committee, the referrals shall be consolidated. 5 11. Use of false information. The provisions of subdivision ten of 6 this section shall apply to a prosecutor for the knowing or reckless use 7 of false or untruthful evidence. 8 § 2. Subdivision 1 of section 240.20 of the criminal procedure law is 9 amended by adding a new paragraph (l) to read as follows: 10 (l) information resulting from comparing DNA test results on specimens 11 from crime scene sample or samples obtained in the course of an investi- 12 gation of an alleged crime with the DNA records maintained by or avail- 13 able through the state DNA identification index established pursuant to 14 New York law or any official federal DNA index. 15 § 3. Subdivision 1 of section 440.10 of the criminal procedure law is 16 amended by adding a new paragraph (j) to read as follows: 17 (j) The people have failed to provide or to provide in a timely manner 18 evidence exculpatory to the defense as defined in section 240.25 of this 19 chapter and have failed to prove that there was no possibility that the 20 information would have affected the decision. 21 § 4. This act shall take effect on the sixtieth day after it shall 22 have become a law.

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