(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 his
or her direction or in cooperation with him or her.
(b) All transcripts of the testimony of a person who has testified
before a grand jury, 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, 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, and law
enforcement agency reports. This provision also includes 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 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, or which relate to the subject matter of the case.
(i) All photographs, photocopies and reproductions made by or at the
direction of law enforcement personnel of any property 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, 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 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. 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 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 case.
(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.
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; provided that the prosecutor shall not be required to obtain by
subpoena duces tecum material or information which the defendant may
thereby obtain. 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. Either party may redact social security
numbers and tax numbers from disclosures under this article.
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.
Structure New York Laws
Part 2 - The Principal Proceedings
Title J - Prosecution of Indictments in Superior Courts--Plea to Sentence
245.25 - Disclosure Prior to Certain Guilty Pleas.
245.30 - Court Orders for Preservation, Access or Discovery.
245.35 - Court Ordered Procedures to Facilitate Compliance.
245.40 - Non-Testimonial Evidence From the Defendant.
245.45 - DNA Comparison Order.
245.50 - Certificates of Compliance; Readiness for Trial.
245.60 - Continuing Duty to Disclose.
245.75 - Waiver of Discovery by Defendant.