STATE OF NEW YORK
________________________________________________________________________
1523--A
2021-2022 Regular Sessions
IN SENATE
January 12, 2021
___________
Introduced by Sens. TEDISCO, AKSHAR, BORRELLO, HELMING, JORDAN, O'MARA,
ORTT, RITCHIE -- read twice and ordered printed, and when printed to
be committed to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the criminal procedure law, in relation to providing
judges more discretion regarding securing orders and limiting the
lengths of certain orders; and to repeal certain provisions of the
criminal procedure law relating thereto; to amend the criminal proce-
dure law and the penal law, in relation to establishing new criminal
discovery rules; to repeal article 245 of the criminal procedure law
relating thereto; and to repeal certain provisions of the judiciary
law and the executive law relating to securing orders and criminal
discovery
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivision 3 of section 150.10 of the criminal procedure
2 law is REPEALED.
3 § 2. Subdivision 1 of section 150.20 of the criminal procedure law, as
4 amended by section 1-a of part JJJ of chapter 59 of the laws of 2019, is
5 amended to read as follows:
6 1. [(a)] Whenever a police officer is authorized pursuant to section
7 140.10 of this title to arrest a person without a warrant for an offense
8 other than a class A, B, C or D felony or a violation of section 130.25,
9 130.40, 205.10, 205.17, 205.19 or 215.56 of the penal law, he [shall,
10 except as set out in paragraph (b) of this subdivision] or she may,
11 subject to the provisions of subdivisions three and four of section
12 150.40 of this [title] article, instead issue to and serve upon such
13 person an appearance ticket.
14 [(b) An officer is not required to issue an appearance ticket if:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04301-02-1
S. 1523--A 2
1 (i) the person has one or more outstanding local criminal court or
2 superior court warrants;
3 (ii) the person has failed to appear in court proceedings in the last
4 two years;
5 (iii) the person has been given a reasonable opportunity to make their
6 verifiable identity and a method of contact known, and has been unable
7 or unwilling to do so, so that a custodial arrest is necessary to
8 subject the individual to the jurisdiction of the court. For the
9 purposes of this section, an officer may rely on various factors to
10 determine a person's identity, including but not limited to personal
11 knowledge of such person, such person's self-identification, or photo-
12 graphic identification. There is no requirement that a person present
13 photographic identification in order to be issued an appearance ticket
14 in lieu of arrest where the person's identity is otherwise verifiable;
15 however, if offered by such person, an officer shall accept as evidence
16 of identity the following: a valid driver's license or non-driver iden-
17 tification card issued by the commissioner of motor vehicles, the feder-
18 al government, any United States territory, commonwealth or possession,
19 the District of Columbia, a state government or municipal government
20 within the United States or a provincial government of the dominion of
21 Canada; a valid passport issued by the United States government or any
22 other country; an identification card issued by the armed forces of the
23 United States; a public benefit card, as defined in paragraph (a) of
24 subdivision one of section 158.00 of the penal law;
25 (iv) the person is charged with a crime between members of the same
26 family or household, as defined in subdivision one of section 530.11 of
27 this chapter;
28 (v) the person is charged with a crime defined in article 130 of the
29 penal law;
30 (vi) it reasonably appears the person should be brought before the
31 court for consideration of issuance of an order of protection, pursuant
32 to section 530.13 of this chapter, based on the facts of the crime or
33 offense that the officer has reasonable cause to believe occurred;
34 (vii) the person is charged with a crime for which the court may
35 suspend or revoke his or her driver license;
36 (viii) it reasonably appears to the officer, based on the observed
37 behavior of the individual in the present contact with the officer and
38 facts regarding the person's condition that indicates a sign of distress
39 to such a degree that the person would face harm without immediate
40 medical or mental health care, that bringing the person before the court
41 would be in such person's interest in addressing that need; provided,
42 however, that before making the arrest, the officer shall make all
43 reasonable efforts to assist the person in securing appropriate
44 services.]
45 § 3. The criminal procedure law is amended by adding a new section
46 150.30 to read as follows:
47 § 150.30 Appearance ticket; issuance and service thereof after arrest
48 upon posting of pre-arraignment bail.
49 1. Issuance and service of an appearance ticket by a police officer
50 following an arrest without a warrant, as prescribed in subdivision two
51 of section 150.20 of this article, may be made conditional upon the
52 posting of a sum of money, known as pre-arraignment bail. In such case,
53 the bail becomes forfeit upon failure of such person to comply with the
54 directions of the appearance ticket. The person posting such bail must
55 complete and sign a form which states (a) the name, residential address
56 and occupation of each person posting cash bail; and (b) the title of
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1 the criminal action or proceeding involved; and (c) the offense or
2 offenses which are the subjects of the action or proceeding involved,
3 and the status of such action or proceeding; and (d) the name of the
4 principal and the nature of his or her involvement in or connection with
5 such action or proceeding; and (e) the date of the principal's next
6 appearance in court; and (f) an acknowledgement that the cash bail will
7 be forfeited if the principal does not comply with the directions of the
8 appearance ticket; and (g) the amount of money posted as cash bail. Such
9 pre-arraignment bail may be posted as provided in subdivision two or
10 three of this section.
11 2. A desk officer in charge at a police station, county jail, or
12 police headquarters, or any of his or her superior officers, may in such
13 place, fix pre-arraignment bail, in an amount prescribed in this subdi-
14 vision, and upon the posting thereof must issue and serve an appearance
15 ticket upon the arrested person, give a receipt for the bail, and
16 release such person from custody. Such pre-arraignment bail may be fixed
17 in the following amounts:
18 (a) If the arrest was for a class E felony, any amount not exceeding
19 seven hundred fifty dollars.
20 (b) If the arrest was for a class A misdemeanor, any amount not
21 exceeding five hundred dollars.
22 (c) If the arrest was for a class B misdemeanor or an unclassified
23 misdemeanor, any amount not exceeding two hundred fifty dollars.
24 (d) If the arrest was for a petty offense, any amount not exceeding
25 one hundred dollars.
26 3. A police officer, who has arrested a person without a warrant
27 pursuant to subdivision two of section 150.20 of this article for a
28 traffic infraction, may, where he or she reasonably believes that such
29 arrested person is not licensed to operate a motor vehicle by this state
30 or any state covered by a reciprocal compact guaranteeing appearance as
31 is provided in section five hundred seventeen of the vehicle and traffic
32 law, fix pre-arraignment bail in the amount of fifty dollars; provided,
33 however, such bail shall be posted by means of a credit card or similar
34 device. Upon the posting thereof, said officer must issue and serve an
35 appearance ticket upon the arrested person, give a receipt for the bail,
36 and release such person from custody.
37 4. The chief administrator of the courts shall establish a system for
38 the posting of pre-arraignment bail by means of credit card or similar
39 device, as is provided by section two hundred twelve of the judiciary
40 law. The head of each police department or police force and of any state
41 department, agency, board, commission or public authority having police
42 officers who fix pre-arraignment bail as provided herein may elect to
43 use the system established by the chief administrator or may establish
44 such other system for the posting of pre-arraignment bail by means of
45 credit card or similar device as he or she may deem appropriate.
46 § 4. Subdivision 1 of section 150.40 of the criminal procedure law, as
47 amended by section 8 of part UU of chapter 56 of the laws of 2020, is
48 amended to read as follows:
49 1. An appearance ticket must be made returnable [at a date as soon as
50 possible, but in no event later than twenty days from the date of issu-
51 ance; or at the next scheduled session of the appropriate local criminal
52 court if such session is scheduled to occur more than twenty days from
53 the date of issuance; or at a later date, with the court's permission
54 due to enrollment in a pre-arraignment diversion program. The appearance
55 ticket shall be made returnable] in a local criminal court designated in
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1 section 100.55 of this title as one with which an information for the
2 offense in question may be filed.
3 § 5. Section 150.80 of the criminal procedure law is REPEALED.
4 § 6. Subdivisions 3-a, 3-b, 21 and 22 of section 500.10 of the crimi-
5 nal procedure law are REPEALED.
6 § 7. Subdivisions 5, 6, 7 and 9 of section 500.10 of the criminal
7 procedure law, as amended by section 1-e of part JJJ of chapter 59 of
8 the laws of 2019, are amended to read as follows:
9 5. "Securing order" means an order of a court committing a principal
10 to the custody of the sheriff or fixing bail, [where authorized,] or
11 releasing the principal on the principal's own recognizance [or releas-
12 ing the principal under non-monetary conditions].
13 6. "Order of recognizance or bail" means a securing order releasing a
14 principal on the principal's own recognizance or [under non-monetary
15 conditions or, where authorized,] fixing bail.
16 7. "Application for recognizance or bail" means an application by a
17 principal that the court, instead of committing the principal to or
18 retaining the principal in the custody of the sheriff, either release
19 the principal on the principal's own recognizance[, release under non-
20 monetary conditions, or, where authorized,] or fix bail.
21 9. "Bail" means cash bail[,] or a bail bond [or money paid with a
22 credit card].
23 § 8. Section 510.10 of the criminal procedure law, as amended by
24 section 2 of part JJJ of chapter 59 of the laws of 2019 and subdivision
25 4 as amended by section 2 of part UU of chapter 56 of the laws of 2020,
26 is amended to read as follows:
27 § 510.10 Securing order; when required[; alternatives available; stand-
28 ard to be applied].
29 [1.] When a principal, whose future court attendance at a criminal
30 action or proceeding is or may be required, initially comes under the
31 control of a court, such court shall[, in accordance with this title,]
32 by a securing order, either release the principal on the principal's own
33 recognizance, [release the principal under non-monetary conditions, or,
34 where authorized,] fix bail or commit the principal to the custody of
35 the sheriff. [In all such cases, except where another type of securing
36 order is shown to be required by law, the court shall release the prin-
37 cipal pending trial on the principal's own recognizance, unless it is
38 demonstrated and the court makes an individualized determination that
39 the principal poses a risk of flight to avoid prosecution. If such a
40 finding is made, the court must select the least restrictive alternative
41 and condition or conditions that will reasonably assure the principal's
42 return to court. The court shall explain its choice of release, release
43 with conditions, bail or remand on the record or in writing.
44 2. A principal is entitled to representation by counsel under this
45 chapter in preparing an application for release, when a securing order
46 is being considered and when a securing order is being reviewed for
47 modification, revocation or termination. If the principal is financially
48 unable to obtain counsel, counsel shall be assigned to the principal.
49 3. In cases other than as described in subdivision four of this
50 section the court shall release the principal pending trial on the prin-
51 cipal's own recognizance, unless the court finds on the record or in
52 writing that release on the principal's own recognizance will not
53 reasonably assure the principal's return to court. In such instances,
54 the court shall release the principal under non-monetary conditions,
55 selecting the least restrictive alternative and conditions that will
56 reasonably assure the principal's return to court. The court shall
S. 1523--A 5
1 explain its choice of alternative and conditions on the record or in
2 writing.
3 4. Where the principal stands charged with a qualifying offense, the
4 court, unless otherwise prohibited by law, may in its discretion release
5 the principal pending trial on the principal's own recognizance or under
6 non-monetary conditions, fix bail, or, where the defendant is charged
7 with a qualifying offense which is a felony, the court may commit the
8 principal to the custody of the sheriff. A principal stands charged with
9 a qualifying offense for the purposes of this subdivision when he or she
10 stands charged with:
11 (a) a felony enumerated in section 70.02 of the penal law, other than
12 robbery in the second degree as defined in subdivision one of section
13 160.10 of the penal law, provided, however, that burglary in the second
14 degree as defined in subdivision two of section 140.25 of the penal law
15 shall be a qualifying offense only where the defendant is charged with
16 entering the living area of the dwelling;
17 (b) a crime involving witness intimidation under section 215.15 of the
18 penal law;
19 (c) a crime involving witness tampering under section 215.11, 215.12
20 or 215.13 of the penal law;
21 (d) a class A felony defined in the penal law, provided that for class
22 A felonies under article two hundred twenty of the penal law, only class
23 A-I felonies shall be a qualifying offense;
24 (e) a sex trafficking offense defined in section 230.34 or 230.34-a of
25 the penal law, or a felony sex offense defined in section 70.80 of the
26 penal law, or a crime involving incest as defined in section 255.25,
27 255.26 or 255.27 of such law, or a misdemeanor defined in article one
28 hundred thirty of such law;
29 (f) conspiracy in the second degree as defined in section 105.15 of
30 the penal law, where the underlying allegation of such charge is that
31 the defendant conspired to commit a class A felony defined in article
32 one hundred twenty-five of the penal law;
33 (g) money laundering in support of terrorism in the first degree as
34 defined in section 470.24 of the penal law; money laundering in support
35 of terrorism in the second degree as defined in section 470.23 of the
36 penal law; money laundering in support of terrorism in the third degree
37 as defined in section 470.22 of the penal law; money laundering in
38 support of terrorism in the fourth degree as defined in section 470.21
39 of the penal law; or a felony crime of terrorism as defined in article
40 four hundred ninety of the penal law, other than the crime defined in
41 section 490.20 of such law;
42 (h) criminal contempt in the second degree as defined in subdivision
43 three of section 215.50 of the penal law, criminal contempt in the first
44 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
45 the penal law or aggravated criminal contempt as defined in section
46 215.52 of the penal law, and the underlying allegation of such charge of
47 criminal contempt in the second degree, criminal contempt in the first
48 degree or aggravated criminal contempt is that the defendant violated a
49 duly served order of protection where the protected party is a member of
50 the defendant's same family or household as defined in subdivision one
51 of section 530.11 of this title;
52 (i) facilitating a sexual performance by a child with a controlled
53 substance or alcohol as defined in section 263.30 of the penal law, use
54 of a child in a sexual performance as defined in section 263.05 of the
55 penal law or luring a child as defined in subdivision one of section
56 120.70 of the penal law, promoting an obscene sexual performance by a
S. 1523--A 6
1 child as defined in section 263.10 of the penal law or promoting a sexu-
2 al performance by a child as defined in section 263.15 of the penal law;
3 (j) any crime that is alleged to have caused the death of another
4 person;
5 (k) criminal obstruction of breathing or blood circulation as defined
6 in section 121.11 of the penal law, strangulation in the second degree
7 as defined in section 121.12 of the penal law or unlawful imprisonment
8 in the first degree as defined in section 135.10 of the penal law, and
9 is alleged to have committed the offense against a member of the defend-
10 ant's same family or household as defined in subdivision one of section
11 530.11 of this title;
12 (l) aggravated vehicular assault as defined in section 120.04-a of the
13 penal law or vehicular assault in the first degree as defined in section
14 120.04 of the penal law;
15 (m) assault in the third degree as defined in section 120.00 of the
16 penal law or arson in the third degree as defined in section 150.10 of
17 the penal law, when such crime is charged as a hate crime as defined in
18 section 485.05 of the penal law;
19 (n) aggravated assault upon a person less than eleven years old as
20 defined in section 120.12 of the penal law or criminal possession of a
21 weapon on school grounds as defined in section 265.01-a of the penal
22 law;
23 (o) grand larceny in the first degree as defined in section 155.42 of
24 the penal law, enterprise corruption as defined in section 460.20 of the
25 penal law, or money laundering in the first degree as defined in section
26 470.20 of the penal law;
27 (p) failure to register as a sex offender pursuant to section one
28 hundred sixty-eight-t of the correction law or endangering the welfare
29 of a child as defined in subdivision one of section 260.10 of the penal
30 law, where the defendant is required to maintain registration under
31 article six-C of the correction law and designated a level three offen-
32 der pursuant to subdivision six of section one hundred sixty-eight-l of
33 the correction law;
34 (q) a crime involving bail jumping under section 215.55, 215.56 or
35 215.57 of the penal law, or a crime involving escaping from custody
36 under section 205.05, 205.10 or 205.15 of the penal law;
37 (r) any felony offense committed by the principal while serving a
38 sentence of probation or while released to post release supervision;
39 (s) a felony, where the defendant qualifies for sentencing on such
40 charge as a persistent felony offender pursuant to section 70.10 of the
41 penal law; or
42 (t) any felony or class A misdemeanor involving harm to an identifi-
43 able person or property, where such charge arose from conduct occurring
44 while the defendant was released on his or her own recognizance or
45 released under conditions for a separate felony or class A misdemeanor
46 involving harm to an identifiable person or property, provided, however,
47 that the prosecutor must show reasonable cause to believe that the
48 defendant committed the instant crime and any underlying crime. For the
49 purposes of this subparagraph, any of the underlying crimes need not be
50 a qualifying offense as defined in this subdivision.
51 5. Notwithstanding the provisions of subdivisions three and four of
52 this section, with respect to any charge for which bail or remand is not
53 ordered, and for which the court would not or could not otherwise
54 require bail or remand, a defendant may, at any time, request that the
55 court set bail in a nominal amount requested by the defendant in the
56 form specified in paragraph (a) of subdivision one of section 520.10 of
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1 this title; if the court is satisfied that the request is voluntary, the
2 court shall set such bail in such amount.
3 6.] When a securing order is revoked or otherwise terminated in the
4 course of an uncompleted action or proceeding but the principal's future
5 court attendance still is or may be required and the principal is still
6 under the control of a court, a new securing order must be issued. When
7 the court revokes or otherwise terminates a securing order which commit-
8 ted the principal to the custody of the sheriff, the court shall give
9 written notification to the sheriff of such revocation or termination of
10 the securing order.
11 § 9. Section 510.20 of the criminal procedure law, as amended by
12 section 3 of part JJJ of chapter 59 of the laws of 2019, is amended to
13 read as follows:
14 § 510.20 Application for [a change in securing order] recognizance or
15 bail; making and determination thereof in general.
16 1. Upon any occasion when a court [has issued] is required to issue a
17 securing order with respect to a principal [and the], or at any time
18 when a principal is confined in the custody of the sheriff as a result
19 of the securing order or a previously issued securing order, the princi-
20 pal may make an application for recognizance[, release under non-mone-
21 tary conditions] or bail.
22 2. [(a) The principal is entitled to representation by counsel in the
23 making and presentation of such application. If the principal is finan-
24 cially unable to obtain counsel, counsel shall be assigned to the prin-
25 cipal.
26 (b)] Upon such application, the principal must be accorded an opportu-
27 nity to be heard[, present evidence] and to contend that an order of
28 recognizance[, release under non-monetary conditions] or[, where author-
29 ized,] bail must or should issue, that the court should release the
30 principal on the principal's own recognizance [or under non-monetary
31 conditions] rather than fix bail, and that if bail is [authorized and]
32 fixed it should be in a suggested amount and form.
33 § 10. Section 510.30 of the criminal procedure law, as amended by
34 section 5 of part JJJ of chapter 59 of the laws of 2019, is amended to
35 read as follows:
36 § 510.30 Application for [securing order] recognizance or bail; rules of
37 law and criteria controlling determination.
38 1. Determinations of applications for recognizance or bail are not in
39 all cases discretionary but are subject to rules, prescribed in article
40 five hundred thirty of this title and other provisions of law relating
41 to specific kinds of criminal actions and proceedings, providing (a)
42 that in some circumstances such an application must as a matter of law
43 be granted, (b) that in others it must as a matter of law be denied and
44 the principal committed to or retained in the custody of the sheriff,
45 and (c) that in others the granting or denial thereof is a matter of
46 judicial discretion.
47 2. To the extent that the issuance of an order of recognizance or bail
48 and the terms thereof are matters of discretion rather than of law, an
49 application is determined on the basis of the following factors and
50 criteria:
51 (a) With respect to any principal, the court [in all cases, unless
52 otherwise provided by law,] must [impose the least restrictive] consider
53 the kind and degree of control or restriction that is necessary to
54 secure the principal's return to court when required. In determining
55 that matter, the court must, on the basis of available information,
56 consider and take into account:
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1 (i) The principal's character, reputation, habits and mental condi-
2 tion;
3 (ii) The principal's employment and financial resources;
4 (iii) The principal's family ties and the length of his or her resi-
5 dence if any in the community;
6 (iv) [information about the principal that is relevant to the princi-
7 pal's return to court, including:
8 (a) The principal's activities and history;
9 (b) If the principal is a defendant, the charges facing the principal;
10 (c)] The principal's criminal [conviction] record if any;
11 [(d)] (v) The principal's record of previous adjudication as a juve-
12 nile delinquent, as retained pursuant to section 354.2 of the family
13 court act, or, of pending cases where fingerprints are retained pursuant
14 to section 306.1 of such act, or a youthful offender, if any;
15 [(e)] (vi) The principal's previous record if any in responding to
16 court appearances when required or with respect to flight to avoid crim-
17 inal prosecution;
18 [(f) If monetary bail is authorized, according to the restrictions set
19 forth in this title, the principal's individual financial circumstances,
20 and, in cases where bail is authorized, the principal's ability to post
21 bail without posing undue hardship, as well as his or her ability to
22 obtain a secured, unsecured, or partially secured bond;
23 (g)] (vii) Where the principal is charged with a crime or crimes
24 against a member or members of the same family or household as that term
25 is defined in subdivision one of section 530.11 of this title, the
26 following factors:
27 [(i)] (A) any violation by the principal of an order of protection
28 issued by any court for the protection of a member or members of the
29 same family or household as that term is defined in subdivision one of
30 section 530.11 of this title, whether or not such order of protection is
31 currently in effect; and
32 [(ii)] (B) the principal's history of use or possession of a firearm;
33 [and
34 (h)] (viii) If the principal is a defendant, the weight of the
35 evidence against him or her in the pending criminal action and any other
36 factor indicating probability or improbability of conviction; or, in the
37 case of an application for [a securing order] bail or recognizance pend-
38 ing appeal, the merit or lack of merit of the appeal; and
39 (ix) If he or she is a defendant, the sentence which may be or has
40 been imposed upon conviction.
41 [2.] (b) Where the principal is a defendant-appellant in a pending
42 appeal from a judgment of conviction, the court must also consider the
43 likelihood of ultimate reversal of the judgment. A determination that
44 the appeal is palpably without merit alone justifies, but does not
45 require, a denial of the application, regardless of any determination
46 made with respect to the factors specified in paragraph (a) of this
47 subdivision [one of this section].
48 3. When bail or recognizance is ordered, the court shall inform the
49 principal, if the principal is a defendant charged with the commission
50 of a felony, that the release is conditional and that the court may
51 revoke the order of release and [may be authorized] to commit the prin-
52 cipal to the custody of the sheriff in accordance with the provisions of
53 subdivision two of section 530.60 of this [chapter] title if the princi-
54 pal commits a subsequent felony while at liberty upon such order.
55 § 11. Section 510.40 of the criminal procedure law, as amended by
56 section 6 of part JJJ of chapter 59 of the laws of 2019 and paragraph
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1 (c) of subdivision 4 as amended by section 7 of part UU of chapter 56 of
2 the laws of 2020, is amended to read as follows:
3 § 510.40 [Court notification to principal of conditions of release and
4 of alleged violations of conditions of release]Application
5 for recognizance or bail; determination thereof, form of
6 securing order and execution thereof.
7 1. An application for recognizance or bail must be determined by a
8 securing order which either:
9 (a) Grants the application and releases the principal on his or her
10 own recognizance; or
11 (b) Grants the application and fixes bail; or
12 (c) Denies the application and commits the principal to, or retains
13 him or her in, the custody of the sheriff.
14 2. Upon ordering that a principal be released on the principal's own
15 recognizance, [or released under non-monetary conditions, or, if bail
16 has been fixed, upon the posting of bail,] the court must direct the
17 principal to appear in the criminal action or proceeding involved when-
18 ever the principal's attendance may be required and to [be] render the
19 principal at all times amenable to the orders and processes of the
20 court. If such principal is in the custody of the sheriff or at liberty
21 upon bail at the time of the order, the court must direct that the prin-
22 cipal be discharged from such custody or, as the case may be, that the
23 principal's bail be exonerated.
24 [2.] 3. Upon the issuance of an order fixing bail[, where authorized,]
25 and upon the posting thereof, the court must examine the bail to deter-
26 mine whether it complies with the order. If it does, the court must, in
27 the absence of some factor or circumstance which in law requires or
28 authorizes disapproval thereof, approve the bail and must issue a
29 certificate of release, authorizing the principal to be at liberty, and,
30 if the principal is in the custody of the sheriff at the time, directing
31 the sheriff to discharge the principal therefrom. If the bail fixed is
32 not posted, or is not approved after being posted, the court must order
33 that the principal be committed to the custody of the sheriff. [In the
34 event of any such non-approval, the court shall explain promptly in
35 writing the reasons therefor.
36 3. Non-monetary conditions of release shall be individualized and
37 established in writing by the court. At future court appearances, the
38 court shall consider a lessening of conditions or modification of condi-
39 tions to a less burdensome form based on the principal's compliance with
40 such conditions of release. In the event of alleged non-compliance with
41 the conditions of release in an important respect, pursuant to this
42 subdivision, additional conditions may be imposed by the court, on the
43 record or in writing, only after notice of the facts and circumstances
44 of such alleged non-compliance, reasonable under the circumstances,
45 affording the principal and the principal's attorney and the people an
46 opportunity to present relevant, admissible evidence, relevant witnesses
47 and to cross-examine witnesses, and a finding by clear and convincing
48 evidence that the principal violated a condition of release in an impor-
49 tant respect. Following such a finding, in determining whether to impose
50 additional conditions for non-compliance, the court shall consider and
51 may select conditions consistent with the court's obligation to impose
52 the least restrictive condition or conditions that will reasonably
53 assure the defendant's return to court. The court shall explain on the
54 record or in writing the reasons for its determination and for any
55 changes to the conditions imposed.
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1 4. (a) Electronic monitoring of a principal's location may be ordered
2 only if the court finds, after notice, an opportunity to be heard and an
3 individualized determination explained on the record or in writing, that
4 the defendant qualifies for electronic monitoring in accordance with
5 subdivision twenty-one of section 500.10 of this title, and no other
6 realistic non-monetary condition or set of non-monetary conditions will
7 suffice to reasonably assure a principal's return to court.
8 (b) The specific method of electronic monitoring of the principal's
9 location must be approved by the court. It must be the least restrictive
10 procedure and method that will reasonably assure the principal's return
11 to court, and unobtrusive to the greatest extent practicable.
12 (c) Electronic monitoring of the location of a principal may be
13 conducted only by a public entity under the supervision and control of a
14 county or municipality or a non-profit entity under contract to the
15 county, municipality or the state. A county or municipality shall be
16 authorized to enter into a contract with another county or municipality
17 in the state to monitor principals under non-monetary conditions of
18 release in its county, but counties, municipalities and the state shall
19 not contract with any private for-profit entity for such purposes.
20 Counties, municipalities and the state may contract with a private for-
21 profit entity to supply electronic monitoring devices or other items,
22 provided that any interaction with persons under electronic monitoring
23 or the data produced by such monitoring shall be conducted solely by
24 employees of a county, municipality, the state, or a non-profit entity
25 under contract with such county, municipality or the state.
26 (d) Electronic monitoring of a principal's location may be for a maxi-
27 mum period of sixty days, and may be renewed for such period, after
28 notice, an opportunity to be heard and a de novo, individualized deter-
29 mination in accordance with this subdivision, which shall be explained
30 on the record or in writing.
31 A defendant subject to electronic location monitoring under this
32 subdivision shall be considered held or confined in custody for purposes
33 of section 180.80 of this chapter and shall be considered committed to
34 the custody of the sheriff for purposes of section 170.70 of the chap-
35 ter, as applicable.
36 5. If a principal is released under non-monetary conditions, the court
37 shall, on the record and in an individualized written document provided
38 to the principal, notify the principal, in plain language and a manner
39 sufficiently clear and specific:
40 (a) of any conditions to which the principal is subject, to serve as a
41 guide for the principal's conduct; and
42 (b) that the possible consequences for violation of such a condition
43 may include revocation of the securing order and the ordering of a more
44 restrictive securing order.]
45 § 12. Sections 510.43 and 510.45 of the criminal procedure law are
46 REPEALED.
47 § 13. Section 510.50 of the criminal procedure law, as amended by
48 section 9 of part JJJ of chapter 59 of the laws of 2019, is amended to
49 read as follows:
50 § 510.50 Enforcement of securing order.
51 [1.] When the attendance of a principal confined in the custody of the
52 sheriff is required at the criminal action or proceeding at a particular
53 time and place, the court may compel such attendance by directing the
54 sheriff to produce the principal at such time and place. If the princi-
55 pal is at liberty on the principal's own recognizance [or non-monetary
56 conditions] or on bail, the principal's attendance may be achieved or
S. 1523--A 11
1 compelled by various methods, including notification and the issuance of
2 a bench warrant, prescribed by law in provisions governing such matters
3 with respect to the particular kind of action or proceeding involved.
4 [2. Except when the principal is charged with a new crime while at
5 liberty, absent relevant, credible evidence demonstrating that a princi-
6 pal's failure to appear for a scheduled court appearance was willful,
7 the court, prior to issuing a bench warrant for a failure to appear for
8 a scheduled court appearance, shall provide at least forty-eight hours
9 notice to the principal or the principal's counsel that the principal is
10 required to appear, in order to give the principal an opportunity to
11 appear voluntarily.]
12 § 14. Paragraph (b) of subdivision 2 of section 520.10 of the criminal
13 procedure law, as amended by section 10 of part JJJ of chapter 59 of the
14 laws of 2019, is amended to read as follows:
15 (b) The court [shall] may direct that the bail be posted in any one of
16 [three] two or more of the forms specified in subdivision one of this
17 section, designated in the alternative, and may designate different
18 amounts varying with the forms[, except that one of the forms shall be
19 either an unsecured or partially secured surety bond, as selected by the
20 court].
21 § 15. Section 530.10 of the criminal procedure law, as amended by
22 section 11 of part JJJ of chapter 59 of the laws of 2019, is amended to
23 read as follows:
24 § 530.10 Order of recognizance [release under non-monetary conditions]
25 or bail; in general.
26 Under circumstances prescribed in this article, a court, upon applica-
27 tion of a defendant charged with or convicted of an offense, is required
28 [to issue a securing order] or authorized to order bail or recognizance
29 for the release or prospective release of such defendant during the
30 pendency of either:
31 1. A criminal action based upon such charge; or
32 2. An appeal taken by the defendant from a judgment of conviction or a
33 sentence or from an order of an intermediate appellate court affirming
34 or modifying a judgment of conviction or a sentence.
35 § 16. Subdivision 4 of section 530.11 of the criminal procedure law,
36 as amended by section 12 of part JJJ of chapter 59 of the laws of 2019,
37 is amended to read as follows:
38 4. When a person is arrested for an alleged family offense or an
39 alleged violation of an order of protection or temporary order of
40 protection or arrested pursuant to a warrant issued by the supreme or
41 family court, and the supreme or family court, as applicable, is not in
42 session, such person shall be brought before a local criminal court in
43 the county of arrest or in the county in which such warrant is return-
44 able pursuant to article one hundred twenty of this chapter. Such local
45 criminal court may issue any order authorized under subdivision eleven
46 of section 530.12 of this article, section one hundred fifty-four-d or
47 one hundred fifty-five of the family court act or subdivision three-b of
48 section two hundred forty or subdivision two-a of section two hundred
49 fifty-two of the domestic relations law, in addition to discharging
50 other arraignment responsibilities as set forth in this chapter. In
51 making such order, the local criminal court shall consider [de novo] the
52 bail recommendation [and securing order], if any, made by the supreme or
53 family court as indicated on the warrant or certificate of warrant.
54 Unless the petitioner or complainant requests otherwise, the court, in
55 addition to scheduling further criminal proceedings, if any, regarding
56 such alleged family offense or violation allegation, shall make such
S. 1523--A 12
1 matter returnable in the supreme or family court, as applicable, on the
2 next day such court is in session.
3 § 17. Subdivision 11 of section 530.12 of the criminal procedure law,
4 as amended by section 15 of part JJJ of chapter 59 of the laws of 2019,
5 is amended to read as follows:
6 11. If a defendant is brought before the court for failure to obey any
7 lawful order issued under this section, or an order of protection issued
8 by a court of competent jurisdiction in another state, territorial or
9 tribal jurisdiction, and if, after hearing, the court is satisfied by
10 competent proof that the defendant has willfully failed to obey any such
11 order, the court may:
12 (a) revoke an order of recognizance [or release under non-monetary
13 conditions] or revoke an order of bail or order forfeiture of such bail
14 and commit the defendant to custody; or
15 (b) restore the case to the calendar when there has been an adjourn-
16 ment in contemplation of dismissal and commit the defendant to custody;
17 or
18 (c) revoke a conditional discharge in accordance with section 410.70
19 of this chapter and impose probation supervision or impose a sentence of
20 imprisonment in accordance with the penal law based on the original
21 conviction; or
22 (d) revoke probation in accordance with section 410.70 of this chapter
23 and impose a sentence of imprisonment in accordance with the penal law
24 based on the original conviction. In addition, if the act which consti-
25 tutes the violation of the order of protection or temporary order of
26 protection is a crime or a violation the defendant may be charged with
27 and tried for that crime or violation.
28 § 18. The opening paragraph of subdivision 1 of section 530.13 of the
29 criminal procedure law, as amended by section 14 of part JJJ of chapter
30 59 of the laws of 2019, is amended to read as follows:
31 When any criminal action is pending, and the court has not issued a
32 temporary order of protection pursuant to section 530.12 of this arti-
33 cle, the court, in addition to the other powers conferred upon it by
34 this chapter, may for good cause shown issue a temporary order of
35 protection in conjunction with any securing order committing the defend-
36 ant to the custody of the sheriff or as a condition of a pre-trial
37 release, or as a condition of release on bail or an adjournment in
38 contemplation of dismissal. In addition to any other conditions, such an
39 order may require that the defendant:
40 § 19. Paragraph (a) of subdivision 8 of section 530.13 of the criminal
41 procedure law, as amended by section 13 of part JJJ of chapter 59 of the
42 laws of 2019, is amended to read as follows:
43 (a) revoke an order of recognizance[, release under non-monetary
44 conditions] or bail and commit the defendant to custody; or
45 § 20. Section 530.20 of the criminal procedure law is REPEALED and a
46 new section 530.20 is added to read as follows:
47 § 530.20 Order of recognizance or bail; by local criminal court when
48 action is pending therein.
49 When a criminal action is pending in a local criminal court, such
50 court, upon application of a defendant, must or may order recognizance
51 or bail as follows:
52 1. When the defendant is charged, by information, simplified informa-
53 tion, prosecutor's information or misdemeanor complaint, with an offense
54 or offenses of less than felony grade only, the court must order recog-
55 nizance or bail.
S. 1523--A 13
1 2. When the defendant is charged, by felony complaint, with a felony,
2 the court may, in its discretion, order recognizance or bail except as
3 otherwise provided in this subdivision:
4 (a) A city court, a town court or a village court may not order recog-
5 nizance or bail when (i) the defendant is charged with a class A felony,
6 or (ii) it appears that the defendant has two previous felony
7 convictions;
8 (b) No local criminal court may order recognizance or bail with
9 respect to a defendant charged with a felony unless and until:
10 (i) The district attorney has been heard in the matter or, after know-
11 ledge or notice of the application and reasonable opportunity to be
12 heard, has failed to appear at the proceeding or has otherwise waived
13 his or her right to do so; and
14 (ii) The court has been furnished with a report of the division of
15 criminal justice services concerning the defendant's criminal record if
16 any or with a police department report with respect to the defendant's
17 prior arrest record. If neither report is available, the court, with the
18 consent of the district attorney, may dispense with this requirement;
19 provided, however, that in an emergency, including but not limited to a
20 substantial impairment in the ability of such division or police depart-
21 ment to timely furnish such report, such consent shall not be required
22 if, for reasons stated on the record, the court deems it unnecessary.
23 When the court has been furnished with any such report or record, it
24 shall furnish a copy thereof to counsel for the defendant or, if the
25 defendant is not represented by counsel, to the defendant.
26 § 21. The section heading and subdivisions 1 and 2 of section 530.30
27 of the criminal procedure law, as amended by section 17 of part JJJ of
28 chapter 59 of the laws of 2019, are amended to read as follows:
29 Order of recognizance[, release under non-monetary conditions] or bail;
30 by superior court judge when action is pending in local criminal court.
31 1. When a criminal action is pending in a local criminal court, other
32 than one consisting of a superior court judge sitting as such, a judge
33 of a superior court holding a term thereof in the county, upon applica-
34 tion of a defendant, may order recognizance[, release under non-monetary
35 conditions] or[, where authorized,] bail when such local criminal court:
36 (a) Lacks authority to issue such an order, pursuant to the relevant
37 provisions of section 530.20 of this article; or
38 (b) Has denied an application for recognizance[, release under non-
39 monetary conditions] or bail; or
40 (c) Has fixed bail[, where authorized,] which is excessive[; or
41 (d) Has set a securing order of release under non-monetary conditions
42 which are more restrictive than necessary to reasonably assure the
43 defendant's return to court].
44 In such case, such superior court judge may vacate the order of such
45 local criminal court and release the defendant on his or her own recog-
46 nizance [or under non-monetary conditions,] or [where authorized,] fix
47 bail in a lesser amount or in a less burdensome form[, whichever are the
48 least restrictive alternative and conditions that will reasonably assure
49 the defendant's return to court. The court shall explain its choice of
50 alternative and conditions on the record or in writing].
51 2. Notwithstanding the provisions of subdivision one of this section,
52 when the defendant is charged with a felony in a local criminal court, a
53 superior court judge may not order recognizance, [release under non-mon-
54 etary conditions] or[, where authorized,] bail unless and until the
55 district attorney has had an opportunity to be heard in the matter and
56 such judge [and counsel for the defendant have] has been furnished with
S. 1523--A 14
1 a report as described in subparagraph (ii) of paragraph (b) of subdivi-
2 sion two of section 530.20 of this article.
3 § 22. Section 530.40 of the criminal procedure law is REPEALED and a
4 new section 530.40 is added to read as follows:
5 § 530.40 Order of recognizance or bail; by superior court when action is
6 pending therein.
7 When a criminal action is pending in a superior court, such court,
8 upon application of a defendant, must or may order recognizance or bail
9 as follows:
10 1. When the defendant is charged with an offense or offenses of less
11 than felony grade only, the court must order recognizance or bail.
12 2. When the defendant is charged with a felony, the court may, in its
13 discretion, order recognizance or bail. In any such case in which an
14 indictment (a) has resulted from an order of a local criminal court
15 holding the defendant for the action of the grand jury, or (b) was filed
16 at a time when a felony complaint charging the same conduct was pending
17 in a local criminal court, and in which such local criminal court or a
18 superior court judge has issued an order of recognizance or bail which
19 is still effective, the superior court's order may be in the form of a
20 direction continuing the effectiveness of the previous order.
21 3. Notwithstanding the provisions of subdivision two of this section,
22 a superior court may not order recognizance or bail, or permit a defend-
23 ant to remain at liberty pursuant to an existing order, after the
24 defendant has been convicted of either: (a) a class A felony or (b) any
25 class B or class C felony as defined in article one hundred thirty of
26 the penal law committed or attempted to be committed by a person eigh-
27 teen years of age or older against a person less than eighteen years of
28 age. In either case the court must commit or remand the defendant to the
29 custody of the sheriff.
30 4. Notwithstanding the provisions of subdivision two of this section,
31 a superior court may not order recognizance or bail when the defendant
32 is charged with a felony unless and until the district attorney has had
33 an opportunity to be heard in the matter and such court has been
34 furnished with a report as described in subparagraph (ii) of paragraph
35 (b) of subdivision two of section 530.20 of this article.
36 § 23. Subdivision 1 of section 530.45 of the criminal procedure law,
37 as amended by section 19 of part JJJ of chapter 59 of the laws of 2019,
38 is amended to read as follows:
39 1. When the defendant is at liberty in the course of a criminal action
40 as a result of a prior order of recognizance[, release under non-mone-
41 tary conditions] or bail and the court revokes such order and then[,
42 where authorized,] either fixes no bail or fixes bail in a greater
43 amount or in a more burdensome form than was previously fixed and
44 remands or commits defendant to the custody of the sheriff, [or issues a
45 more restrictive securing order,] a judge designated in subdivision two
46 of this section, upon application of the defendant following conviction
47 of an offense other than a class A felony or a class B or class C felony
48 offense as defined in article one hundred thirty of the penal law
49 committed or attempted to be committed by a person eighteen years of age
50 or older against a person less than eighteen years of age, and before
51 sentencing, may issue a securing order and either release the defendant
52 on the defendant's own recognizance, [release the defendant under non-
53 monetary conditions,] or[, where authorized,] fix bail or fix bail in a
54 lesser amount or in a less burdensome form[, or issue a less restrictive
55 securing order,] than fixed by the court in which the conviction was
56 entered.
S. 1523--A 15
1 § 24. Subdivision 2-a of section 530.45 of the criminal procedure law
2 is REPEALED.
3 § 25. Section 530.50 of the criminal procedure law, as amended by
4 chapter 264 of the laws of 2003, subdivision 1 as designated and subdi-
5 vision 2 as added by section 10 of part UU of chapter 56 of the laws of
6 2020, is amended to read as follows:
7 § 530.50 Order of recognizance or bail; during pendency of appeal.
8 [1.] A judge who is otherwise authorized pursuant to section 460.50 or
9 [section] 460.60 of this chapter to issue an order of recognizance or
10 bail pending the determination of an appeal, may do so unless the
11 defendant received a class A felony sentence or a sentence for any class
12 B or class C felony offense defined in article one hundred thirty of the
13 penal law committed or attempted to be committed by a person eighteen
14 years of age or older against a person less than eighteen years of age.
15 [2. Notwithstanding the provisions of subdivision four of section
16 510.10, paragraph (b) of subdivision one of section 530.20 and subdivi-
17 sion four of section 530.40 of this title, when a defendant charged with
18 an offense that is not such a qualifying offense applies, pending deter-
19 mination of an appeal, for an order of recognizance or release on non-
20 monetary conditions, where authorized, or fixing bail, a judge identi-
21 fied in subdivision two of section 460.50 or paragraph (a) of
22 subdivision one of section 460.60 of this chapter may, in accordance
23 with law, and except as otherwise provided by law, issue a securing
24 order: releasing the defendant on the defendant's own recognizance or
25 under non-monetary conditions where authorized, fixing bail, or remand-
26 ing the defendant to the custody of the sheriff where authorized.]
27 § 26. Section 530.60 of the criminal procedure law, as amended by
28 section 20 of part JJJ of chapter 59 of the laws of 2019, is amended to
29 read as follows:
30 § 530.60 [Certain modifications of a securing order] Order of recogni-
31 zance or bail; revocation thereof.
32 1. Whenever in the course of a criminal action or proceeding a defend-
33 ant is at liberty as a result of an order of recognizance[, release
34 under non-monetary conditions] or bail issued pursuant to this chapter,
35 and the court considers it necessary to review such order, [whether due
36 to a motion by the people or otherwise,] the court may, and [except as
37 provided in subdivision two of section 510.50 of this title concerning a
38 failure to appear in court,] by a bench warrant if necessary, require
39 the defendant to appear before the court. Upon such appearance, the
40 court, for good cause shown, may revoke the order of recognizance[,
41 release under non-monetary conditions,] or bail. If the defendant is
42 entitled to recognizance[, release under non-monetary conditions,] or
43 bail as a matter of right, the court must issue another such order. If
44 the defendant is not, the court may either issue such an order or commit
45 the defendant to the custody of the sheriff in accordance with this
46 section.
47 Where the defendant is committed to the custody of the sheriff and is
48 held on a felony complaint, a new period as provided in section 180.80
49 of this chapter shall commence to run from the time of the defendant's
50 commitment under this subdivision.
51 2. (a) Whenever in the course of a criminal action or proceeding a
52 defendant charged with the commission of a felony is at liberty as a
53 result of an order of recognizance, [release under non-monetary condi-
54 tions] or bail issued pursuant to this article it shall be grounds for
55 revoking such order that the court finds reasonable cause to believe the
56 defendant committed one or more specified class A or violent felony
S. 1523--A 16
1 offenses or intimidated a victim or witness in violation of section
2 215.15, 215.16 or 215.17 of the penal law while at liberty.
3 [(b) Except as provided in paragraph (a) of this subdivision or any
4 other law, whenever in the course of a criminal action or proceeding a
5 defendant charged with the commission of an offense is at liberty as a
6 result of an order of recognizance, release under non-monetary condi-
7 tions or bail issued pursuant to this article it shall be grounds for
8 revoking such order and fixing bail in such criminal action or proceed-
9 ing when the court has found, by clear and convincing evidence, that the
10 defendant:
11 (i) persistently and willfully failed to appear after notice of sched-
12 uled appearances in the case before the court; or
13 (ii) violated an order of protection in the manner prohibited by
14 subdivision (b), (c) or (d) of section 215.51 of the penal law while at
15 liberty; or
16 (iii) stands charged in such criminal action or proceeding with a
17 misdemeanor or violation and, after being so charged, intimidated a
18 victim or witness in violation of section 215.15, 215.16 or 215.17 of
19 the penal law or tampered with a witness in violation of section 215.11,
20 215.12 or 215.13 of the penal law, law while at liberty; or
21 (iv) stands charged in such action or proceeding with a felony and,
22 after being so charged, committed a felony while at liberty.
23 (c)] Before revoking an order of recognizance[, release under non-mon-
24 etary conditions,] or bail pursuant to this subdivision, the court must
25 hold a hearing and shall receive any relevant, admissible evidence not
26 legally privileged. The defendant may cross-examine witnesses and may
27 present relevant, admissible evidence on his own behalf. Such hearing
28 may be consolidated with, and conducted at the same time as, a felony
29 hearing conducted pursuant to article one hundred eighty of this chap-
30 ter. A transcript of testimony taken before the grand jury upon presen-
31 tation of the subsequent offense shall be admissible as evidence during
32 the hearing. The district attorney may move to introduce grand jury
33 testimony of a witness in lieu of that witness' appearance at the hear-
34 ing.
35 [(d)] (b) Revocation of an order of recognizance[, release under non-
36 monetary conditions] or bail and [a new securing order fixing bail or]
37 commitment[, as specified in this paragraph and] pursuant to this subdi-
38 vision shall be for the following periods, either:
39 [(i) Under paragraph (a) of this subdivision, revocation of the order
40 of recognizance, release under non-monetary conditions or, as the case
41 may be, bail, and a new securing order fixing bail or committing the
42 defendant to the custody of the sheriff shall be as follows:
43 (A)] (i) For a period not to exceed ninety days exclusive of any peri-
44 ods of adjournment requested by the defendant; or
45 [(B)] (ii) Until the charges contained within the accusatory instru-
46 ment have been reduced or dismissed such that no count remains which
47 charges the defendant with commission of a felony; or
48 [(C)] (iii) Until reduction or dismissal of the charges contained
49 within the accusatory instrument charging the subsequent offense such
50 that no count remains which charges the defendant with commission of a
51 class A or violent felony offense.
52 Upon expiration of any of the three periods specified within this
53 [subparagraph] paragraph, whichever is shortest, the court may grant or
54 deny release upon an order of bail or recognizance in accordance with
55 the provisions of this article. Upon conviction to an offense the
S. 1523--A 17
1 provisions of this article [five hundred thirty of this chapter] shall
2 apply[; and].
3 [(ii) Under paragraph (b) of this subdivision, revocation of the order
4 of recognizance, release under non-monetary conditions or, as the case
5 may be, bail shall result in the issuance of a new securing order which
6 may, if otherwise authorized by law, permit the principal's release on
7 recognizance or release under non-monetary conditions, but shall also
8 render the defendant eligible for an order fixing bail provided, howev-
9 er, that in accordance with the principles in this title the court must
10 select the least restrictive alternative and condition or conditions
11 that will reasonably assure the principal's return to court. Nothing in
12 this subparagraph shall be interpreted as shortening the period of
13 detention, or requiring or authorizing any less restrictive form of a
14 securing order, which may be imposed pursuant to any other law.
15 (e)] (c) Notwithstanding the provisions of paragraph (a) [or (b)] of
16 this subdivision a defendant, against whom a felony complaint has been
17 filed which charges the defendant with commission of a class A or
18 violent felony offense [or violation of section 215.15, 215.16 or 215.17
19 of the penal law] committed while he or she was at liberty as specified
20 therein, may be committed to the custody of the sheriff pending a revo-
21 cation hearing for a period not to exceed seventy-two hours. An addi-
22 tional period not to exceed seventy-two hours may be granted by the
23 court upon application of the district attorney upon a showing of good
24 cause or where the failure to commence the hearing was due to the
25 defendant's request or occurred with his or her consent. Such good cause
26 must consist of some compelling fact or circumstance which precluded
27 conducting the hearing within the initial prescribed period.
28 § 27. Paragraph (a) of subdivision 9 of section 216.05 of the criminal
29 procedure law, as amended by section 21 of part JJJ of chapter 59 of the
30 laws of 2019, is amended to read as follows:
31 (a) If at any time during the defendant's participation in the judi-
32 cial diversion program, the court has reasonable grounds to believe that
33 the defendant has violated a release condition [in an important respect]
34 or has [willfully] failed to appear before the court as requested, the
35 court [except as provided in subdivision two of section 510.50 of this
36 chapter regarding a failure to appear,] shall direct the defendant to
37 appear or issue a bench warrant to a police officer or an appropriate
38 peace officer directing him or her to take the defendant into custody
39 and bring the defendant before the court without unnecessary delay;
40 provided, however, that under no circumstances shall a defendant who
41 requires treatment for opioid abuse or dependence be deemed to have
42 violated a release condition on the basis of his or her participation in
43 medically prescribed drug treatments under the care of a health care
44 professional licensed or certified under title eight of the education
45 law, acting within his or her lawful scope of practice. The [relevant]
46 provisions of subdivision one of section 530.60 of this chapter relating
47 to [issuance of securing orders] revocation of recognizance or bail
48 shall apply to such proceedings under this subdivision.
49 § 28. Section 410.60 of the criminal procedure law, as amended by
50 section 23 of part JJJ of chapter 59 of the laws of 2019, is amended to
51 read as follows:
52 § 410.60 Appearance before court.
53 A person who has been taken into custody pursuant to section 410.40 or
54 [section] 410.50 of this article for violation of a condition of a
55 sentence of probation or a sentence of conditional discharge must forth-
56 with be brought before the court that imposed the sentence. Where a
S. 1523--A 18
1 violation of probation petition and report has been filed and the person
2 has not been taken into custody nor has a warrant been issued, an
3 initial court appearance shall occur within ten business days of the
4 court's issuance of a notice to appear. If the court has reasonable
5 cause to believe that such person has violated a condition of the
6 sentence, it may commit such person to the custody of the sheriff[,] or
7 fix bail[, release such person under non-monetary conditions] or release
8 such person on such person's own recognizance for future appearance at a
9 hearing to be held in accordance with section 410.70 of this article. If
10 the court does not have reasonable cause to believe that such person has
11 violated a condition of the sentence, it must direct that such person be
12 released.
13 § 29. Subdivision 3 of section 620.50 of the criminal procedure law,
14 as amended by section 24 of part JJJ of chapter 59 of the laws of 2019,
15 is amended to read as follows:
16 3. A material witness order must be executed as follows:
17 (a) If the bail is posted and approved by the court, the witness must,
18 as provided in subdivision [two] three of section 510.40 of this part,
19 be released and be permitted to remain at liberty; provided that, where
20 the bail is posted by a person other than the witness himself or
21 herself, he or she may not be so released except upon his or her signed
22 written consent thereto;
23 (b) If the bail is not posted, or if though posted it is not approved
24 by the court, the witness must, as provided in subdivision [two] three
25 of section 510.40 of this part, be committed to the custody of the sher-
26 iff.
27 § 30. Article 245 of the criminal procedure law is REPEALED.
28 § 31. The criminal procedure law is amended by adding a new article
29 240 to read as follows:
30 ARTICLE 240
31 DISCOVERY
32 Section 240.10 Definition of terms.
33 240.20 Upon demand of defendant.
34 240.30 Upon demand of prosecutor.
35 240.35 Refusal of demand.
36 240.40 Upon court order.
37 240.43 Disclosure of prior uncharged criminal, vicious or immor-
38 al acts.
39 240.44 Upon pre-trial hearing.
40 240.45 Upon trial, of prior statements and criminal history of
41 witnesses.
42 240.50 Protective orders.
43 240.60 Continuing duty to disclose.
44 240.70 Sanctions; fees.
45 240.75 Certain violations.
46 240.80 When demand, refusal and compliance made.
47 240.90 Motion procedure.
48 § 240.10 Definition of terms. The following definitions are applicable
49 to this article:
50 1. "Demand to produce" means a written notice served by and on a
51 party to a criminal action, without leave of the court, demanding to
52 inspect property pursuant to this article and giving reasonable notice
53 of the time at which the demanding party wishes to inspect the property
54 designated.
S. 1523--A 19
1 2. "Attorneys' work product" means property to the extent that it
2 contains the opinions, theories or conclusions of the prosecutor,
3 defense counsel or members of their legal staffs.
4 3. "Property" means any existing tangible personal or real property,
5 including, but not limited to, books, records, reports, memoranda,
6 papers, photographs, tapes or other electronic recordings, articles of
7 clothing, fingerprints, blood samples, fingernail scrapings or
8 handwriting specimens, but excluding attorneys' work product.
9 4. "At the trial" means as part of the people's or the defendant's
10 direct case.
11 § 240.20 Upon demand of defendant.
12 1. Except to the extent protected by court order, upon a demand to
13 produce by a defendant against whom an indictment, superior court
14 information, prosecutor's information, information, or simplified
15 information charging a misdemeanor is pending, the prosecutor shall
16 disclose to the defendant and make available for inspection,
17 photographing, copying or testing, the following property:
18 (a) Any written, recorded or oral statement of the defendant, and of
19 a co-defendant to be tried jointly, made, other than in the course of
20 the criminal transaction, to a public servant engaged in law enforcement
21 activity or to a person then acting under his direction or in
22 cooperation with him;
23 (b) Any transcript of testimony relating to the criminal action or
24 proceeding pending against the defendant, given by the defendant, or by
25 a co-defendant to be tried jointly, before any grand jury;
26 (c) Any written report or document, or portion thereof, concerning a
27 physical or mental examination, or scientific test or experiment,
28 relating to the criminal action or proceeding which was made by, or at
29 the request or direction of a public servant engaged in law enforcement
30 activity, or which was made by a person whom the prosecutor intends to
31 call as a witness at trial, or which the people intend to introduce at
32 trial;
33 (d) Any photograph or drawing relating to the criminal action or
34 proceeding which was made or completed by a public servant engaged in
35 law enforcement activity, or which was made by a person whom the
36 prosecutor intends to call as a witness at trial, or which the people
37 intend to introduce at trial;
38 (e) Any photograph, photocopy or other reproduction made by or at the
39 direction of a police officer, peace officer or prosecutor of any
40 property prior to its release pursuant to the provisions of section
41 450.10 of the penal law, irrespective of whether the people intend to
42 introduce at trial the property or the photograph, photocopy or other
43 reproduction.
44 (f) Any other property obtained from the defendant, or a co-defendant
45 to be tried jointly;
46 (g) Any tapes or other electronic recordings which the prosecutor
47 intends to introduce at trial, irrespective of whether such recording
48 was made during the course of the criminal transaction;
49 (h) Anything required to be disclosed, prior to trial, to the
50 defendant by the prosecutor, pursuant to the constitution of this state
51 or of the United States.
52 (i) The approximate date, time and place of the offense charged and of
53 defendant's arrest.
54 (j) In any prosecution under penal law section 156.05 or 156.10, the
55 time, place and manner of notice given pursuant to subdivision six of
56 section 156.00 of such law.
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1 (k) in any prosecution commenced in a manner set forth in this
2 subdivision alleging a violation of the vehicle and traffic law, in
3 addition to any material required to be disclosed pursuant to this
4 article, any other provision of law, or the constitution of this state
5 or of the United States, any written report or document, or portion
6 thereof, concerning a physical examination, a scientific test or
7 experiment, including the most recent record of inspection, or
8 calibration or repair of machines or instruments utilized to perform
9 such scientific tests or experiments and the certification certificate,
10 if any, held by the operator of the machine or instrument, which tests
11 or examinations were made by or at the request or direction of a public
12 servant engaged in law enforcement activity or which was made by a
13 person whom the prosecutor intends to call as a witness at trial, or
14 which the people intend to introduce at trial.
15 2. The prosecutor shall make a diligent, good faith effort to
16 ascertain the existence of demanded property and to cause such property
17 to be made available for discovery where it exists but is not within the
18 prosecutor's possession, custody or control; provided, that the
19 prosecutor shall not be required to obtain by subpoena duces tecum
20 demanded material which the defendant may thereby obtain.
21 § 240.30 Upon demand of prosecutor.
22 1. Except to the extent protected by court order, upon a demand to
23 produce by the prosecutor, a defendant against whom an indictment,
24 superior court information, prosecutor's information, information, or
25 simplified information charging a misdemeanor is pending shall disclose
26 and make available for inspection, photographing, copying or testing,
27 subject to constitutional limitations:
28 (a) any written report or document, or portion thereof, concerning a
29 physical or mental examination, or scientific test, experiment, or
30 comparisons, made by or at the request or direction of, the defendant,
31 if the defendant intends to introduce such report or document at trial,
32 or if the defendant has filed a notice of intent to proffer psychiatric
33 evidence and such report or document relates thereto, or if such report
34 or document was made by a person, other than defendant, whom defendant
35 intends to call as a witness at trial; and
36 (b) any photograph, drawing, tape or other electronic recording which
37 the defendant intends to introduce at trial.
38 2. The defense shall make a diligent good faith effort to make such
39 property available for discovery where it exists but the property is not
40 within its possession, custody or control, provided, that the defendant
41 shall not be required to obtain by subpoena duces tecum demanded
42 material that the prosecutor may thereby obtain.
43 § 240.35 Refusal of demand.
44 Notwithstanding the provisions of sections 240.20 and 240.30, the
45 prosecutor or the defendant, as the case may be, may refuse to disclose
46 any information which he reasonably believes is not discoverable by a
47 demand to produce, pursuant to section 240.20 or section 240.30 as the
48 case may be, or for which he reasonably believes a protective order
49 would be warranted. Such refusal shall be made in a writing, which
50 shall set forth the grounds of such belief as fully as possible,
51 consistent with the objective of the refusal. The writing shall be
52 served upon the demanding party and a copy shall be filed with the
53 court.
54 § 240.40 Upon court order.
55 Notwithstanding the provisions of sections 240.20 and 240.30, the
56 prosecutor or the defendant, as the case may be, may refuse to disclose
S. 1523--A 21
1 any information which he reasonably believes is not discoverable by a
2 demand to produce, pursuant to section 240.20 or section 240.30 as the
3 case may be, or for which he reasonably believes a protective order
4 would be warranted. Such refusal shall be made in a writing, which
5 shall set forth the grounds of such belief as fully as possible,
6 consistent with the objective of the refusal. The writing shall be
7 served upon the demanding party and a copy shall be filed with the
8 court.
9 § 240.43 Disclosure of prior uncharged criminal, vicious or immoral
10 acts.
11 1. Upon motion of a defendant against whom an indictment, superior
12 court information, prosecutor's information, information, or simplified
13 information charging a misdemeanor is pending, the court in which such
14 accusatory instrument is pending:
15 (a) must order discovery as to any material not disclosed upon a
16 demand pursuant to section 240.20, if it finds that the prosecutor's
17 refusal to disclose such material is not justified;
18 (b) must, unless it is satisfied that the people have shown good
19 cause why such an order should not be issued, order discovery or any
20 other order authorized by subdivision one of section 240.70 as to any
21 material not disclosed upon demand pursuant to section 240.20 where the
22 prosecutor has failed to serve a timely written refusal pursuant to
23 section 240.35; (c) may order discovery with respect to any other prop-
24 erty, which the people intend to introduce at the trial, upon a show-
25 ing by the defendant that discovery with respect to such property is
26 material to the preparation of his or her defense, and that the
27 request is reasonable; and (d) where property in the people's
28 possession, custody, or control that consists of a deoxyribonu-
29 cleic acid ("DNA") profile obtained from probative biological material
30 gathered in connection with the investigation or prosecution of the
31 defendant and the defendant establishes that such profile complies with
32 federal bureau of investigation or state requirements, whichever are
33 applicable and as such requirements are applied to law enforcement
34 agencies seeking a keyboard search or similar comparison, and that the
35 data meets state DNA index system or national DNA index system criteria
36 as such criteria are applied to law enforcement agencies seeking such a
37 keyboard search or similar comparison, the court may order an entity
38 that has access to the combined DNA index system or its successor system
39 to compare such DNA profile against DNA databanks by keyboard searches,
40 or a similar method that does not involve uploading, upon notice to both
41 parties and the entity required to perform the search, upon a showing by
42 the defendant that such a comparison is material to the presentation of
43 his or her defense and that the request is reasonable. For purposes of
44 this paragraph, a "keyboard search" shall mean a search of a DNA profile
45 against the databank in which the profile that is searched is not
46 uploaded to or maintained in the databank. Upon granting the motion
47 pursuant to paragraph (c) of this subdivision, the court shall, upon
48 motion of the people showing such to be material to the preparation of
49 their case and that the request is reasonable, condition its order of
50 discovery by further directing discovery by the people of property, of
51 the same kind or character as that authorized to be inspected by the
52 defendant, which he or she intends to introduce at the trial.
53 2. Upon motion of the prosecutor, and subject to constitutional
54 limitation, the court in which an indictment, superior court
55 information, prosecutor's information, information, or simplified
56 information charging a misdemeanor is pending: (a) must order discovery
S. 1523--A 22
1 as to any property not disclosed upon a demand pursuant to section
2 240.30, if it finds that the defendant's refusal to disclose such
3 material is not justified; and (b) may order the defendant to provide
4 non-testimonial evidence. Such order may, among other things, require
5 the defendant to:
6 (i) Appear in a line-up;
7 (ii) Speak for identification by witness or potential witness;
8 (iii) Be fingerprinted;
9 (iv) Pose for photographs not involving reenactment of an event;
10 (v) Permit the taking of samples of blood, hair or other materials
11 from his body in a manner not involving an unreasonable intrusion
12 thereof or a risk of serious physical injury thereto;
13 (vi) Provide specimens of his handwriting;
14 (vii) Submit to a reasonable physical or medical inspection of his
15 body.
16 This subdivision shall not be construed to limit, expand, or otherwise
17 affect the issuance of a similar court order, as may be authorized by
18 law, before the filing of an accusatory instrument consistent with such
19 rights as the defendant may derive from the constitution of this state
20 or of the United States. This section shall not be construed to limit or
21 otherwise affect the administration of a chemical test where other-
22 wise authorized pursuant to section one thousand one hundred ninety-
23 four-a of the vehicle and traffic law.
24 3. An order pursuant to this section may be denied, limited or
25 conditioned as provided in section 240.50.
26 § 240.44 Upon pre-trial hearing.
27 Subject to a protective order, at a pre-trial hearing held in a
28 criminal court at which a witness is called to testify, each party,
29 prior to the commencement of the direct examination of each of its
30 witnesses, shall, upon request of the other party, make available to
31 that party to the extent not previously disclosed:
32 1. Any written or recorded statement, including any testimony before a
33 grand jury, made by such witness other than the defendant which relates
34 to the subject matter of the witness's testimony.
35 2. A record of a judgment of conviction of such witness other than the
36 defendant if the record of conviction is known by the prosecutor or
37 defendant, as the case may be, to exist.
38 3. The existence of any pending criminal action against such witness
39 other than the defendant if the pending criminal action is known by the
40 prosecutor or defendant, as the case may be, to exist.
41 § 240.45 Upon trial, of prior statements and criminal history of
42 witnesses.
43 1. After the jury has been sworn and before the prosecutor's opening
44 address, or in the case of a single judge trial after commencement and
45 before submission of evidence, the prosecutor shall, subject to a
46 protective order, make available to the defendant:
47 (a) Any written or recorded statement, including any testimony before
48 a grand jury and an examination videotaped pursuant to section 190.32 of
49 this chapter, made by a person whom the prosecutor intends to call as a
50 witness at trial, and which relates to the subject matter of the
51 witness's testimony;
52 (b) A record of judgment of conviction of a witness the people intend
53 to call at trial if the record of conviction is known by the prosecutor
54 to exist;
S. 1523--A 23
1 (c) The existence of any pending criminal action against a witness
2 the people intend to call at trial, if the pending criminal action is
3 known by the prosecutor to exist.
4 The provisions of paragraphs (b) and (c) of this subdivision shall not
5 be construed to require the prosecutor to fingerprint a witness or
6 otherwise cause the division of criminal justice services or other law
7 enforcement agency or court to issue a report concerning a witness.
8 2. After presentation of the people's direct case and before the
9 presentation of the defendant's direct case, the defendant shall,
10 subject to a protective order, make available to the prosecutor:
11 (a) any written or recorded statement made by a person other than the
12 defendant whom the defendant intends to call as a witness at the trial,
13 and which relates to the subject matter of the witness's testimony;
14 (b) a record of judgment of conviction of a witness, other than the
15 defendant, the defendant intends to call at trial if the record of
16 conviction is known by the defendant to exist;
17 (c) the existence of any pending criminal action against a witness,
18 other than the defendant, the defendant intends to call at trial, if the
19 pending criminal action is known by the defendant to exist.
20 § 240.50 Protective orders.
21 1. The court in which the criminal action is pending may, upon motion
22 of either party, or of any affected person, or upon determination of a
23 motion of either party for an order of discovery, or upon its own
24 initiative, issue a protective order denying, limiting, conditioning,
25 delaying or regulating discovery pursuant to this article for good
26 cause, including constitutional limitations, danger to the integrity of
27 physical evidence or a substantial risk of physical harm, intimidation,
28 economic reprisal, bribery or unjustified annoyance or embarrassment to
29 any person or an adverse effect upon the legitimate needs of law
30 enforcement, including the protection of the confidentiality of
31 informants, or any other factor or set of factors which outweighs the
32 usefulness of the discovery.
33 2. An order limiting, conditioning, delaying or regulating discovery
34 may, among other things, require that any material copied or derived
35 therefrom be maintained in the exclusive possession of the attorney for
36 the discovering party and be used for the exclusive purpose of preparing
37 for the defense or prosecution of the criminal action.
38 3. A motion for a protective order shall suspend discovery of the
39 particular matter in dispute.
40 4. Notwithstanding any other provision of this article, the personal
41 residence address of a police officer or correction officer shall not be
42 required to be disclosed except pursuant to an order issued by a court
43 following a finding of good cause.
44 § 240.60 Continuing duty to disclose.
45 If, after complying with the provisions of this article or an order
46 pursuant thereto, a party finds, either before or during trial,
47 additional material subject to discovery or covered by such order, he
48 shall promptly comply with the demand or order, refuse to comply with
49 the demand where refusal is authorized, or apply for a protective order.
50 § 240.70 Sanctions; fees.
51 1. If, during the course of discovery proceedings, the court finds
52 that a party has failed to comply with any of the provisions of this
53 article, the court may order such party to permit discovery of the
54 property not previously disclosed, grant a continuance, issue a
55 protective order, prohibit the introduction of certain evidence or the
56 calling of certain witnesses or take any other appropriate action.
S. 1523--A 24
1 2. The failure of the prosecution to call as a witness a person
2 specified in subdivision one of section 240.20 of this article or of any
3 party to introduce disclosed material at the trial shall not, by itself,
4 constitute grounds for any sanction or for adverse comment thereupon by
5 any party in summation to the jury or at any other point.
6 3. A fee for copies of records required to be disclosed may be
7 charged. Such fee shall not exceed twenty-five cents per photocopy not
8 in excess of nine inches by fourteen inches, or the actual cost of
9 reproducing any other record, except when a different fee is otherwise
10 prescribed by law.
11 § 240.75 Certain violations.
12 The failure of the prosecutor or any agent of the prosecutor to
13 disclose statements that are required to be disclosed under subdivision
14 one of section 240.44 or paragraph (a) of subdivision one of section
15 240.45 of this article shall not constitute grounds for any court to
16 order a new pre-trial hearing or set aside a conviction, or reverse,
17 modify or vacate a judgment of conviction in the absence of a showing by
18 the defendant that there is a reasonable possibility that the
19 non-disclosure materially contributed to the result of the trial or
20 other proceeding; provided, however, that nothing in this section shall
21 affect or limit any right the defendant may have to a re-opened
22 pre-trial hearing when such statements were disclosed before the close
23 of evidence at trial.
24 § 240.80 When demand, refusal and compliance made.
25 1. A demand to produce shall be made within thirty days after
26 arraignment and before the commencement of trial. If the defendant is
27 not represented by counsel, and has requested an adjournment to obtain
28 counsel or to have counsel assigned, the thirty-day period shall
29 commence, for purposes of a demand by the defendant, on the date counsel
30 initially appears on his behalf. However, the court may direct
31 compliance with a demand to produce that, for good cause shown, could
32 not have been made within the time specified.
33 2. A refusal to comply with a demand to produce shall be made within
34 fifteen days of the service of the demand to produce, but for good cause
35 may be made thereafter.
36 3. Absent a refusal to comply with a demand to produce, compliance
37 with such demand shall be made within fifteen days of the service of the
38 demand or as soon thereafter as practicable.
39 § 240.90 Motion procedure.
40 1. A motion by a prosecutor for discovery shall be made within
41 forty-five days after arraignment, but for good cause shown may be made
42 at any time before commencement of trial.
43 2. A motion by a defendant for discovery shall be made as prescribed
44 in section 255.20 of this chapter.
45 3. Where the interests of justice so require, the court may permit a
46 party to a motion for an order of discovery or a protective order, or
47 other affected person, to submit papers or to testify ex parte or in
48 camera. Any such papers and transcript of such testimony shall be
49 sealed, but shall constitute a part of the record on appeal.
50 § 32. Subdivision 9 of section 65.20 of the criminal procedure law, as
51 amended by section 4 of part LLL of chapter 59 of the laws of 2019, is
52 amended to read as follows:
53 9. (a) Prior to the commencement of the hearing conducted pursuant to
54 subdivision six of this section, the district attorney shall, subject to
55 a protective order, comply with the provisions of subdivision one of
56 section [245.20] 240.45 of this chapter as they concern any witness whom
S. 1523--A 25
1 the district attorney intends to call at the hearing and the child
2 witness.
3 (b) Before a defendant calls a witness at such hearing, he or she
4 must, subject to a protective order, comply with the provisions of
5 subdivision [four] two of section [245.20] 240.45 of this chapter as
6 they concern all the witnesses the defendant intends to call at such
7 hearing.
8 § 33. Subdivision 5 of section 200.95 of the criminal procedure law,
9 as amended by section 5 of part LLL of chapter 59 of the laws of 2019,
10 is amended to read as follows:
11 5. Court ordered bill of particulars. Where a prosecutor has timely
12 served a written refusal pursuant to subdivision four of this section
13 and upon motion, made in writing, of a defendant, who has made a request
14 for a bill of particulars and whose request has not been complied with
15 in whole or in part, the court must, to the extent a protective order is
16 not warranted, order the prosecutor to comply with the request if it is
17 satisfied that the items of factual information requested are authorized
18 to be included in a bill of particulars, and that such information is
19 necessary to enable the defendant adequately to prepare or conduct his
20 defense and, if the request was untimely, a finding of good cause for
21 the delay. Where a prosecutor has not timely served a written refusal
22 pursuant to subdivision four of this section the court must, unless it
23 is satisfied that the people have shown good cause why such an order
24 should not be issued, issue an order requiring the prosecutor to comply
25 or providing for any other order authorized by [section 245.80 of this
26 part] subdivision one of section 240.70 of this part.
27 § 34. Paragraph (c) of subdivision 1 of section 255.10 of the criminal
28 procedure law, as amended by section 6 of part LLL of chapter 59 of the
29 laws of 2019, is amended to read as follows:
30 (c) granting discovery pursuant to article [245] 240; or
31 § 35. Subdivision 1 of section 255.20 of the criminal procedure law,
32 as amended by section 7 of part LLL of chapter 59 of the laws of 2019,
33 is amended to read as follows:
34 1. Except as otherwise expressly provided by law, whether the defend-
35 ant is represented by counsel or elects to proceed pro se, all pre-trial
36 motions shall be served or filed within forty-five days after arraign-
37 ment and before commencement of trial, or within such additional time as
38 the court may fix upon application of the defendant made prior to entry
39 of judgment. In an action in which [either (a) material or information
40 has been disclosed pursuant to paragraph (m) or (n) of subdivision one
41 of section 245.20 of this title, (b)] an eavesdropping warrant and
42 application have been furnished pursuant to section 700.70 of this chap-
43 ter, or [(c)] a notice of intention to introduce evidence has been
44 served pursuant to section 710.30 of this chapter, such period shall be
45 extended until forty-five days after the last date of such service. If
46 the defendant is not represented by counsel and has requested an
47 adjournment to obtain counsel or to have counsel assigned, such forty-
48 five day period shall commence on the date counsel initially appears on
49 defendant's behalf.
50 § 36. Section 340.30 of the criminal procedure law, as amended by
51 section 8 of part LLL of chapter 59 of the laws of 2019, is amended to
52 read as follows:
53 § 340.30 Pre-trial discovery and notices of defenses.
54 The provisions of article two hundred [forty-five] forty of this part,
55 concerning pre-trial discovery by a defendant under indictment in a
56 superior court, and article two hundred fifty of this part, concerning
S. 1523--A 26
1 pre-trial notice to the people by a defendant under indictment in a
2 superior court who intends to advance a trial defense of mental disease
3 or defect or of alibi, apply to a prosecution of an information in a
4 local criminal court.
5 § 37. Subdivision 14 of section 400.27 of the criminal procedure law,
6 as amended by section 9 of part LLL of chapter 59 of the laws of 2019,
7 is amended to read as follows:
8 14. (a) At a reasonable time prior to the sentencing proceeding or a
9 mental retardation hearing:
10 (i) the prosecutor shall, unless previously disclosed and subject to a
11 protective order, make available to the defendant the statements and
12 information specified in subdivision one of section [245.20] 240.45 of
13 this part and make available for inspection, photographing, copying or
14 testing the property specified in subdivision one of section [245.20]
15 240.20; and
16 (ii) the defendant shall, unless previously disclosed and subject to a
17 protective order, make available to the prosecution the statements and
18 information specified in subdivision [four] two of section [245.20]
19 240.20 and make available for inspection, photographing, copying or
20 testing, subject to constitutional limitations, the reports, documents
21 and other property specified in [245.20] subdivision one of section
22 240.30 of this part.
23 (b) Where a party refuses to make disclosure pursuant to this section,
24 the provisions of section [245.70, 245.75 and/or 245.80] 240.35, subdi-
25 vision one of section 240.40 and section 240.50 of this part shall
26 apply.
27 (c) If, after complying with the provisions of this section or an
28 order pursuant thereto, a party finds either before or during a sentenc-
29 ing proceeding or mental retardation hearing, additional material
30 subject to discovery or covered by court order, the party shall promptly
31 make disclosure or apply for a protective order.
32 (d) If the court finds that a party has failed to comply with any of
33 the provisions of this section, the court may [employ] enter any of the
34 [remedies or sanctions] orders specified in subdivision one of section
35 [245.80] 240.70 of this part.
36 § 38. The opening paragraph of paragraph (b) of subdivision 1 of
37 section 440.30 of the criminal procedure law, as amended by section 10
38 of part LLL of chapter 59 of the laws of 2019, is amended to read as
39 follows:
40 In conjunction with the filing or consideration of a motion to vacate
41 a judgment pursuant to section 440.10 of this article by a defendant
42 convicted after a trial, in cases where the court has ordered an eviden-
43 tiary hearing upon such motion, the court may order that the people
44 produce or make available for inspection property, as defined in subdi-
45 vision three of section 240.10 of this part, in its possession, custody,
46 or control that was secured in connection with the investigation or
47 prosecution of the defendant upon credible allegations by the defendant
48 and a finding by the court that such property, if obtained, would be
49 probative to the determination of defendant's actual innocence, and that
50 the request is reasonable. The court shall deny or limit such a request
51 upon a finding that such a request, if granted, would threaten the
52 integrity or chain of custody of property or the integrity of the proc-
53 esses or functions of a laboratory conducting DNA testing, pose a risk
54 of harm, intimidation, embarrassment, reprisal, or other substantially
55 negative consequences to any person, undermine the proper functions of
56 law enforcement including the confidentiality of informants, or on the
S. 1523--A 27
1 basis of any other factor identified by the court in the interests of
2 justice or public safety. The court shall further ensure that any prop-
3 erty produced pursuant to this paragraph is subject to a protective
4 order, where appropriate. The court shall deny any request made pursuant
5 to this paragraph where:
6 § 39. Subdivision 3 of section 610.20 of the criminal procedure law,
7 as amended by section 3 of part LLL of chapter 59 of the laws of 2019,
8 is amended to read as follows:
9 3. An attorney for a defendant in a criminal action or proceeding, as
10 an officer of a criminal court, may issue a subpoena of such court,
11 subscribed by himself, for the attendance in such court of any witness
12 whom the defendant is entitled to call in such action or proceeding. An
13 attorney for a defendant may not issue a subpoena duces tecum of the
14 court directed to any department, bureau or agency of the state or of a
15 political subdivision thereof, or to any officer or representative ther-
16 eof[, unless the subpoena is indorsed by the court and provides at least
17 three days for the production of the requested materials. In the case of
18 an emergency, the court may by order dispense with the three-day
19 production period]. Such a subpoena duces tecum may be issued in behalf
20 of a defendant upon order of a court pursuant to the rules applicable to
21 civil cases as provided in section twenty-three hundred seven of the
22 civil practice law and rules.
23 § 40. Subdivision 4 of section 610.20 of the criminal procedure law is
24 REPEALED.
25 § 41. Subdivision 10 of section 450.10 of the penal law, as amended by
26 section 11 of part LLL of chapter 59 of the laws of 2019, is amended to
27 read as follows:
28 10. Where there has been a failure to comply with the provisions of
29 this section, and where the district attorney does not demonstrate to
30 the satisfaction of the court that such failure has not caused the
31 defendant prejudice, the court shall instruct the jury that it may
32 consider such failure in determining the weight to be given such
33 evidence and may also impose any other sanction set forth in subdivision
34 one of section [245.80] 240.70 of the criminal procedure law; provided,
35 however, that unless the defendant has convinced the court that such
36 failure has caused him undue prejudice, the court shall not preclude the
37 district attorney from introducing into evidence the property, photo-
38 graphs, photocopies, or other reproductions of the property or, where
39 appropriate, testimony concerning its value and condition, where such
40 evidence is otherwise properly authenticated and admissible under the
41 rules of evidence. Failure to comply with any one or more of the
42 provisions of this section shall not for that reason alone be grounds
43 for dismissal of the accusatory instrument.
44 § 42. Section 460.80 of the penal law, as amended by section 12 of
45 part LLL of chapter 59 of the laws of 2019, is amended to read as
46 follows:
47 Notwithstanding the provisions of article two hundred [forty-five]
48 forty of the criminal procedure law, when forfeiture is sought pursuant
49 to section 460.30 of this article, the court may order discovery of any
50 property not otherwise disclosed which is material and reasonably neces-
51 sary for preparation by the defendant with respect to the forfeiture
52 proceeding pursuant to such section. The court may issue a protective
53 order denying, limiting, conditioning, delaying or regulating such
54 discovery where a danger to the integrity of physical evidence or a
55 substantial risk of physical harm, intimidation, economic reprisal,
56 bribery or unjustified annoyance or embarrassment to any person or an
S. 1523--A 28
1 adverse effect upon the legitimate needs of law enforcement, including
2 the protection of the confidentiality of informants, or any other factor
3 or set of factors outweighs the usefulness of the discovery.
4 § 43. Subdivision 5 of section 480.10 of the penal law, as amended by
5 section 13 of part LLL of chapter 59 of the laws of 2019, is amended to
6 read as follows:
7 5. In addition to information required to be disclosed pursuant to
8 article two hundred [forty-five] forty of the criminal procedure law,
9 when forfeiture is sought pursuant to this article, and following the
10 defendant's arraignment on the special forfeiture information, the court
11 shall order discovery of any information not otherwise disclosed which
12 is material and reasonably necessary for preparation by the defendant
13 with respect to a forfeiture proceeding brought pursuant to this arti-
14 cle. Such material shall include those portions of the grand jury
15 minutes and such other information which pertain solely to the special
16 forfeiture information and shall not include information which pertains
17 to the criminal charges. Upon application of the prosecutor, the court
18 may issue a protective order pursuant to section [245.70] 240.40 of the
19 criminal procedure law with respect to any information required to be
20 disclosed pursuant to this subdivision.
21 § 44. Subdivision 5 of section 216 of the judiciary law is REPEALED.
22 § 45. Section 837-u of the executive law is REPEALED.
23 § 46. This act shall take effect immediately, provided, however that
24 the amendments to subdivision 9 of section 65.20 of the criminal proce-
25 dure law made by section thirty-two of this act shall not affect the
26 repeal of such section and shall be deemed repealed therewith.