What's happening
This bill repeals and replaces New York's criminal discovery laws, establishing new procedures and expanded obligations for sharing evidence between prosecution and defense in criminal cases.
Why it matters
Significantly expands and clarifies what evidence must be shared. The bill requires both prosecutors and defense attorneys to disclose a much broader range of evidence—such as witness names and statements, police reports, promises to witnesses, and exculpatory information—earlier and in more detail than under previous law, potentially reducing surprise and unfairness at trial.
Establishes clear timelines and multi-phase discovery. Discovery obligations are divided into two phases with specific deadlines (e.g., 15 days for initial prosecution disclosure, 90 days for additional materials), helping ensure both sides have timely access to information and can prepare more effectively.
Includes protections for witnesses and sensitive information. The law empowers courts to issue protective orders to restrict or condition disclosure when there are risks such as witness intimidation, harm, or threats to law enforcement needs, balancing transparency with safety and privacy concerns.
Creates enforceable compliance and remedy mechanisms. Parties must file certificates confirming they have met discovery duties, and courts are given broad authority to impose remedies (like continuances, evidence exclusion, or even dismissal) for noncompliance, aiming to make discovery rules meaningful and enforceable.
Albany, before your first meeting.
Every bill that moved yesterday, summarized in a sentence and ranked by impact. The Albany Scorecard follows on Sundays.
Free. Unsubscribe in one click. Want alerts on specific bills? Create an account.
Who cares
Headline styles
Reform Criminal Discovery Rules
Plain English, a few words. Used as the page title.
Sponsors
History
- Referred to codes
- Referred to codes
Full text
15 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
3334
2017-2018 Regular Sessions
IN SENATE
January 20, 2017
Introduced by Sens. BAILEY, DILAN, LATIMER, 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 and the penal law, in relation to criminal discovery; and to repeal certain provisions of the criminal procedure law relating thereto
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Article 240 of the criminal procedure law is REPEALED.
§ 2. The criminal procedure law is amended by adding a new article 245 to read as follows:
ARTICLE 245 - DISCOVERY Section 245.10 Availability of protective orders.
245.20 Phase one discovery obligation of prosecution.
245.30 Phase two discovery obligation of prosecution.
245.40 Reciprocal discovery obligation of the defendant.
245.45 Disclosure of prior misconduct or criminal acts.
245.50 Non-testimonial evidence from the defendant.
245.55 Court orders for preservation, access or discovery.
245.60 Material held by other governmental personnel.
245.65 Certificates of compliance.
245.70 Court ordered procedures to facilitate compliance.
245.75 Flow of information with police.
245.80 Continuing duty to disclose.
245.85 Work product.
245.90 Availability of remedies for violations.
245.95 Admissibility of discovery. § 245.10 Availability of protective orders.
1. Any discovery subject to protective order. Upon a showing of good cause, the court may at any time order that discovery or inspection of any kind of material or information under this article be denied,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03829-01-7
S. 3334 2
restricted, conditioned or deferred, or make such other order as is appropriate. The court may impose as a condition on discovery to a defendant that the material or information to be discovered be available only to counsel for the defendant. The court may permit a party seeking or opposing a protective order under this section, or another affected person, to submit papers or testify ex parte or in camera. Any such papers and a transcript of such testimony shall be sealed and shall constitute a part of the record on appeal. This section does not alter the allocation of the burden of proof with regard to matters at issue, including privilege.
2. Modification of time periods for discovery. Upon motion of a party in an individual case, the court may alter the time periods for discovery imposed by this article upon a showing of good cause.
3. Showing of good cause. Good cause under this section may include constitutional limitations; danger to the integrity of physical evidence; a substantial risk of physical harm, intimidation, economic reprisal, bribery or unjustified annoyance or embarrassment to any person; a substantial risk of an adverse effect upon the legitimate needs of law enforcement, including the protection of the confidentiality of informants; danger to any person stemming from factors such as a defendant's gang affiliation, prior history of interfering with witnesses, or threats or intimidating actions directed at potential witnesses; or other similar factors that outweigh the usefulness of the discovery. § 245.20 Phase one discovery obligation of prosecution.
1. Timing of phase one discovery for the defendant. The prosecution shall perform its phase one discovery obligations under this section within fifteen calendar days after the defendant's arraignment on an indictment, superior court information, prosecutor's information, information, or simplified information. Portions of materials claimed to be non-discoverable may be withheld pending a determination and ruling of the court under section 245.10 of this article; but the defendant shall be notified in writing that information has not been disclosed under a particular subdivision, and the discoverable portions of such materials shall be disclosed if practicable. When the discoverable materials are exceptionally voluminous, the time period in this subdivision may be stayed by an additional forty-five calendar days without need for a motion pursuant to subdivision two of section 245.10 of this article.
2. Phase one discovery for the defendant. The prosecution shall disclose to the defendant as part of phase one discovery, and permit the defendant to discover, inspect, copy or photograph, each of the following items and information when it relates to the subject matter of the case:
(a) All electronically stored police reports and law enforcement agency reports that are in the possession, custody or control of the prosecution, or persons under the prosecution's direction and control.
(b) 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 his or her direction or in cooperation with him or her, other than statements made in the course of the criminal transaction.
(c) A list of all tangible objects obtained from, or allegedly possessed by, the defendant or a co-defendant. 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
S. 3334 3
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 that intention as to each such object. If reasonably practicable, it shall also designate the location from which each tangible object was recovered.
(d) The names of, and addresses or adequate alternative 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 a potential defense thereto, including a designation by the prosecutor as to which of those persons may be called as witnesses. Information under this paragraph relating to any person may be withheld, and redacted from discovery materials, as provided in subdivision three or four of this section. Information under this paragraph relating to a confidential informant may be withheld, and redacted from discovery materials, without need for a motion pursuant to section 245.10 of this article; but the defendant shall be notified in writing that such information has not been disclosed, unless the court rules otherwise for good cause shown.
(e) The name, rank, shield number and business address of all law enforcement personnel whom the prosecutor knows to have evidence or information relevant to any offense charged or to a potential defense thereto. Information under this paragraph relating to undercover personnel may be withheld, and redacted from discovery materials, without need for a motion pursuant to section 245.10 of this article; but the defendant shall be notified in writing that such information has not been disclosed, unless the court rules otherwise for good cause shown.
(f) When written and recorded statements are in the possession of the prosecution (not solely in the possession of police or another law enforcement agency), all statements, 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 a potential defense thereto. Statements solely in the possession of police or another law enforcement agency at the time of phase one discovery are discoverable under paragraph (c) of subdivision two of section 245.30 of this article.
(g) When it is known to the prosecution (not solely known to police or another law enforcement agency), all evidence and information, whether or not admissible or recorded in tangible form, that tends to: (i) exculpate the defendant; (ii) mitigate the defendant's culpability as to a charged offense; (iii) support a potential defense to a charged offense; (iv) provide a basis for a motion to suppress evidence on constitutional grounds; (v) significantly impugn the credibility of an important prosecution witness, informant or evidence; or (vi) mitigate punishment. Favorable evidence and information known solely to police or another law enforcement agency at the time of phase one discovery is discoverable under paragraph (d) of subdivision two of section 245.30 of this article.
(h) Whether a search warrant has been executed 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.
(i) The approximate date, time and place of the offense or offenses charged and of the defendant's arrest.
S. 3334 4
3. Prosecutor's option to restrict disclosure of contact information by arranging witness interview. Within the prosecutor's discretion, the address, telephone number or similar contact information for any person whose name is disclosed pursuant to paragraph (d) of subdivision two of this section may be withheld, and redacted from other discovery materials, without need for a motion pursuant to section 245.10 of this article, if the prosecutor makes the person available to counsel for the defendant for an in person interview within the time period specified in subdivision one of this section. This subdivision does not create any right for the defendant personally to attend or to participate in such an interview.
4. Prosecutor's option to restrict disclosure of contact information in violent felony cases. (a) Where the defendant is charged with a violent felony offense, within the prosecutor's discretion the address, telephone number or similar contact information for any person whose name is disclosed pursuant to paragraph (d) of subdivision two of this section may be withheld, and redacted from other discovery materials, without need for a motion pursuant to section 245.10 of this article; except that a list of the addresses or adequate alternative contact information for persons whose information has been withheld or redacted shall be separately provided to counsel for the defendant in a document clearly marked as confidential, unless a protective order pursuant to section 245.10 of this article is issued by the court for good cause shown. In addition discovery of this information may be conditioned on the defendant's personal consent, given in open court in the presence of the court at arraignment or at another time, to the use of the confidentiality procedure set forth in this subdivision. The court shall specifically caution the defendant, in the colloquy about use of this procedure, concerning the offenses of tampering with a witness and intimidating a victim or witness in article two hundred fifteen of the penal law. Nothing in this subdivision precludes the court from issuing a different protective order pursuant to section 245.10 of this article for good cause shown.
(b) When the confidentiality procedure set forth in this subdivision is used, the following requirements apply:
(i) Except as provided in subparagraph (ii) of this paragraph, counsel for the defendant may not disclose or permit to be disclosed to a defendant or to anyone else the list described in this subdivision or its contents, unless specifically permitted to do so by the court for good cause shown or unless the prosecutor gives written consent. The court may allow a party seeking or opposing such permission, or another affected person, to submit papers or testify ex parte or in camera. Any such papers and a transcript of such testimony shall be sealed and shall constitute a part of the record on appeal.
(ii) Notwithstanding subparagraph (i) of this paragraph, counsel for the defendant may disclose or permit to be disclosed the listed contact information for a potential witness to persons employed by the attorney or to persons appointed by the court to assist in the preparation of a defendant's case if that disclosure is required for that preparation. Persons provided this information by the attorney shall be informed by the attorney that further dissemination of the information, except as provided by this subdivision, is prohibited. Within the prosecutor's discretion, discovery of the listed contact information may be conditioned on service of a written statement by counsel for the defendant of the names of any employees who may be provided information pursuant to
S. 3334 5
this subsection, and describing any known prior connections between those employees and all defendants in the case.
(iii) If the defendant is acting as his or her own attorney, the court shall endeavor to protect the listed contact information for a potential witness by providing for contact only through persons appointed by the court to assist in the preparation of the defendant's case or by imposing other reasonable restrictions, absent a showing of good cause. § 245.30 Phase two discovery obligation of prosecution.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the criminal procedure law and the penal law, in relation to criminal discovery; and to repeal certain provisions of the criminal procedure law relating thereto
Purpose or general idea of bill
To modernize and make more fair the criminal discovery rules, while providing measures to ensure the safety of witnesses. The criminal discovery rules are set forth in criminal procedure law Article 240. This bill would repeal Article 240 and enact a new Article 245. It would eliminate inefficiencies of current discovery practice, improve both parties' access to information, reduce the possibility of wrongful convictions, and facilitate more prompt disposition of criminal cases.
Summary of main provisions
Section 245.10 (Protective Orders): Either party may withhold any kind of discoverable item or information, when there is a basis to believe a protective order would be appropriate. The court may issue any type of protective order, or alter the time periods for discovery, for good cause shown. The standard for a showing of good cause is broad, flexible and realistic. Courts shall consider specified factors relating to ensuring safety of witnesses.
Read the full memo (1,905 words)
Sections 245.20 and 245.30 (Prosecution's Discovery in Two Stages): The prosecution's discovery occurs in two phases, Phase One includes types of materials possessed by or readily obtainable by prosecutors early in the case (e.g., electronically stored police reports; etc.). Phase Two includes materials that take longer for Prosecutors to obtain (e,g less formalized documents from police files; transcripts; etc.), The need for written demands for discovery is eliminated. Disclosures are earlier and broader than under current law.
Section 245.20 (Phase One Discovery): The prosecution automatically discloses Phase One materials to the defense within 15 days of arraignment. This includes types of information needed for the defense to file pre-trial motions; to perform investigations when witnesses and evidence are still available; and to make more informed decisions about pleas.
Section 245.30 (Phase Two Discovery): The prosecution automatically discloses Phase Two materials to the defense within 90 days of arraignment,- and then the prosecutor files a "Certificate of Compliance." This includes types of information needed for evaluating potential defenses and for trial preparation.
Sections 245.20 (3), (4) (Procedures for Witnesses): In any case, the prosecutor has the option to withhold any witness's address or similar. contact information, without having to apply for a protective order, by making the witness available to only counsel for the defendant for an interview. In cases charging a violent felony offense, the prosecutor has the additional option to withhold any witness's address or similar,. contact information, without having to apply for a protective order, by providing adequate contact information in a confidential document accessible only to defense counsel and named defense personnel, and not to the defendant. This discovery can also be made contingent upon the defendant's personal consent to use of the attorney-only confidentiality procedure, after in-court warning against witness tampering.
Section 245.40 (Discovery From Defense): The defense automatically discloses its reciprocal discovery to the prosecution within 30 days after the prosecution's certification that its discovery complete, and then the defense lawyer files a "Certificate of Compliance." Reciprocal discovery from the defense is earlier and broader than under current law.
Section 245.90 (Remedies for Violations): If an item is disclosed late, a remedy at trial is provided if the party entitled to disclosure can demonstrate significant prejudice. If an item is lost or destroyed, the court imposes a remedy at trial that is proportionate to the harm.
Justification
Under New York's current criminal discovery statute, defendants are denied vitally important information, essential to make rational decisions about their pending cases. The limited information they receive is also turned over so late that it is often impossible to intelligently investigate, to secure and use any potentially exculpatory evidence, to fairly weigh a guilty plea offer, or to develop a trial strategy.
New York's antiquated criminal discovery rules inhibit, at great taxpayer cost, prompt guilty pleas from people who would be willing to resolve their cases if shown the evidence against them. They also force defense lawyers and prosecutors to inundate each other and the court system with boilerplate "demands" and responses for no sound purpose.
This restrictive discovery system is in stark contrast to the discovery rules that apply in civil cases in New York. In civil cases, both parties receive an opportunity through discovery to learn what they should know about the other side's case. Yet in criminal cases, where liberty is at stake, the current rules systematically block innocent or ever-charged defendants from investigating and formulating a proper strategy of defense prior to the trial.
The criminal discovery system is also out of step with these in other States, A leading treatise identifies the following fourteen States as those that provide criminal defendants with the least discovery in the nation: "Alabama, Georgia, Iowa, Kansas, Kentucky, Louisiana, New York, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Virginia, and Wyoming." This list actually understates New York's restrictiveness, as at least eight of these "bottom fourteen" States have other procedures that result in the defense receiving crucial information, such as lists of witnesses' names or addresses included as part of the indictment or early access to grand jury minutes.
By contrast, large States with big cities that ordinarily are considered more akin to New York - including California, Florida, Illinois, Massachusetts, Michigan, New Jersey and North Carolina have utilized broad criminal discovery for years.
This bill will overhaul New York's criminal discovery rules and accomplish two key things: it will help innocent or over-charged defendants fairly prepare for trial, and it will encourage guilty defendants to plead Guilty without needless and costly delays.
The bill is even-handed. It requires both the prosecution and the defendant to provide the opposing party with extensive discovery early in the case. It eliminates unduly burdensome requirements of routine discovery paperwork. By employing new mechanisms to address concerns about some key issues, it also represents a major advance from other proposals for criminal discovery reform that have been pet forward in New York in past decades.
There is a broad consensus nationwide that the principal benefits of discovery reform hinge on requiring early disclosure. But meaningful discovery reform also requires that the obligations actually be achievable by prosecutors and police.
To ensure that its mandates are feasible, this bill establishes that the prosecution's discovery is provided in two calibrated stages. Key items possessed by or readily accessible to prosecutors (such as electronically stored police reports) are discoverable fifteen days after arraignment. Other items - like grand jury transcripts, exhibits, and less "formal" witness statements such as police memo book notes or vouchers, which may be harder for a prosecutor to obtain and may not be in electronic form - are discoverable after ninety days.
The bill requires disclosure of witness information. At least thirty-three States currently require that both partied disclose their. witnesses' names and addresses, subject to a protective order. No State that has modernized its criminal discovery rules has failed to include such a discovery obligation, and all of them permit prosecutors to withhold witness information from the defense only after the court has issued a protective order allowing non-disclosure.
This uniform practice in modern discovery statutes is based upon the bedrock legal principle that witnesses "belong" to neither party. In addition, it recognizes that having contact information for witnesses is frequently essential to enable an intelligent investigation of the charges; to evaluate and develop available defenses; to find and use exculpatory evidence; and to provide the defendant with informed advice about the advisability of a plea. Just as prosecutors have a crucial need for information to investigate alibi defense witnesses, it is vital for both parties to exchange information for investigating other witnesses as well.
The bill requires the prosecution to disclose names and addresses or alternative contact information for all persons known to have information relevant to any offense charged or to a potential defense, not merely of "intended" witnesses. This standard is recommended by the American Bar Association and used in States such as New Jersey, Florida and Minnesota. It recognizes that prosecutors should not refrain from also disclosing information about potential defense witnesses. It will thus reduce possible "gamesmanship" during discovery, and also help to avoid constitutional violations.
Whereas other States rely solely on the court's issuance of a protective order if the prosecution wishes to withhold a witness's name or address, this bill includes additional tools that will assist courts, prosecutors and defense lawyers in ensuring the safety of witnesses.
Initially, it specifies a robust and flexible standard to be employed when evaluating any application for a protective order. The standard highlights factors such as a defendant's gang affiliation, and it allows withholding of any item where other factors outweigh its usefulness. The bill also gives prosecutors the alternative option, in any case, to withhold a witness's address and contact information, without having to show good cause or to obtain a protective order, by making the person available to only counsel for the defendant for an interview.
In any case involving a violent felony charge, the bill further gives prosecutors the alternative option to withhold any witness's address or other contact information, without having to apply for a protective order. Adequate contact information for the witness is then separately disclosed in a confidential document available only to defense counsel and named defense personnel, who are prohibited from disclosing it to anyone else. Prosecutors may also make disclosure of such information
contingent upon the defendant's personal consent to the use of the attorney-only confidentiality procedure.
This approach recognizes that the defendant, in contrast to the lawyer. or investigator, does not in general need to learn witnesses' addresses (unlike their names, which often are essential to comprehending and discussing a case).
Some violations of discovery obligations are virtually inevitable in any court system, With respect to the potential consequences for violations, this bill employs the term "remedy," not "sanction." This terminology underscores that the purpose of the rules is simply to ensure that both parties receive as much discovery as is feasible, as early as possible (consistent with witness safety) - it is not to "penalize" prosecutors or police for inevitable "lapses" during the discovery process despite their reasonably diligent efforts to comply.
If any discoverable material is disclosed belatedly, the bill instructs courts to provide a "remedy" at trial if the party entitled to disclosure is able to show significant prejudice. If any discoverable material is lost or destroyed, the bill instructs courts to provide a "remedy" at trial that is proportionate to how the item reasonably might have been helpful. These are forgiving standards, designed to rectify harm and not to create a windfall for mere mishaps.
This bill's system of automatic, early, and broad discovery will enhance fairness, reliability, and overall efficiency. It will permit adequate case investigations, properly informed decisions on guilty pleas, more fair and orderly trials, and minimize the risk of wrongful convictions, Replacing the outmoded current framework of Article 240 with this internally consistent and balanced Article 245 will accomplish these goals.
And it will restore New York State's criminal justice system to a sound position within the national mainstream.
Prior legislative history
2015-16: S.11/A.5996(Lentol)- Referred to Codes 2013-14: S.7947/A.6078(Lentol)- Referred to Rules
Fiscal implications
None.
Effective date
One hundred eightieth day after it shall have become a law.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.