S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2044
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   January 21, 2015
                                      ___________
       Introduced  by  Sen. HASSELL-THOMPSON -- read twice and ordered printed,
         and when printed to be committed to the Committee on Codes
       AN ACT to amend the criminal procedure law, in relation  to  exculpatory
         material
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The criminal procedure law  is  amended  by  adding  a  new
    2  section 240.25 to read as follows:
    3  S 240.25 DISCLOSURE OF INFORMATION EXCULPATORY TO THE DEFENSE.
    4    1.  DEFINITION.   EXCULPATORY INFORMATION INCLUDES, BUT IS NOT LIMITED
    5  TO, INFORMATION THAT IS MATERIAL AND FAVORABLE TO  THE  ACCUSED  BECAUSE
    6  THE INFORMATION:
    7    (A) CASTS DOUBT ON WHETHER THE CONDUCT OF THE ACCUSED SATISFIED ONE OR
    8  MORE  OF THE ELEMENTS OF A CRIME CHARGED IN THE INDICTMENT, INFORMATION,
    9  OR OTHER CHARGING INSTRUMENT;
   10    (B) CASTS DOUBT ON WHETHER THE CRIME CHARGED OCCURRED;
   11    (C) CASTS DOUBT ON THE ADMISSIBILITY OF EVIDENCE THAT  THE  PROSECUTOR
   12  ANTICIPATES  OFFERING  IN  THE  PROSECUTION'S  CASE-IN-CHIEF BECAUSE THE
   13  INFORMATION PROVIDES A BASIS FOR A MOTION TO SUPPRESS  OR  EXCLUDE  SUCH
   14  EVIDENCE;
   15    (D)  CASTS  DOUBT ON THE CREDIBILITY OR ACCURACY OF TESTIMONY OR OTHER
   16  EVIDENCE  THAT  THE  PROSECUTOR  ANTICIPATES  OFFERING  IN  HIS  OR  HER
   17  CASE-IN-CHIEF;
   18    (E) DIMINISHES THE DEGREE OF THE ACCUSED'S CULPABILITY OR THE LEVEL OF
   19  OFFENSE CHARGED;
   20    (F)  SUPPORTS  A  DEFENSE TO THE CHARGE OR CHARGES PENDING AGAINST THE
   21  ACCUSED;
   22    (G) MITIGATES, REDUCES OR AFFECTS THE SENTENCE THAT MUST OR  MIGHT  BE
   23  IMPOSED;
   24    (H)  TENDS  TO  LEAD  TO INFORMATION THAT WOULD SATISFY PARAGRAPHS (A)
   25  THROUGH (G) OF THIS SUBDIVISION.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07811-01-5
       S. 2044                             2
    1    2. TIMING OF FIRST DELIVERY OF INFORMATION.  WITHOUT A MOTION  BY  THE
    2  DEFENSE,  THE  FOLLOWING  INFORMATION MUST BE DISCLOSED AND DELIVERED BY
    3  THE PROSECUTION TO THE DEFENSE WITHIN TWENTY-EIGHT DAYS  OF  ARRAIGNMENT
    4  ON THE FIRST CHARGING INSTRUMENT:
    5    (A)  INFORMATION  THAT  CASTS DOUBT ON THE GUILT OF THE ACCUSED OF ANY
    6  CHARGE IN THE INDICTMENT, INFORMATION OR OTHER CHARGING INSTRUMENT;
    7    (B) INFORMATION THAT CASTS DOUBT ON THE ADMISSIBILITY OF EVIDENCE THAT
    8  THE PROSECUTOR ANTICIPATES OFFERING IN HIS OR HER CASE-IN-CHIEF AND THAT
    9  COULD BE THE BASIS OF A MOTION TO SUPPRESS OR EXCLUDE;
   10    (C) A STATEMENT AS TO WHETHER ANY PROMISE, REWARD, OR  INDUCEMENT  HAS
   11  BEEN GIVEN TO ANY WITNESS WHOM THE PROSECUTOR ANTICIPATES CALLING IN HIS
   12  OR  HER  CASE-IN-CHIEF,  IDENTIFYING  BY NAME EACH SUCH WITNESS AND EACH
   13  PROMISE, REWARD, OR INDUCEMENT, AND A COPY OF ANY  PROMISE,  REWARD,  OR
   14  INDUCEMENT THAT HAS BEEN REDUCED TO WRITING OR PRINT;
   15    (D)  A  COPY  OF ANY CRIMINAL RECORD OF ANY WITNESS IDENTIFIED BY NAME
   16  WHOM THE PROSECUTOR ANTICIPATES CALLING  IN  HIS  OR  HER  CASE-IN-CHIEF
   17  INCLUDING  THE  COURT  OF CONVICTION, THE CRIME OF WHICH THE WITNESS WAS
   18  CONVICTED, THE DATE OF THE CONVICTION, AND THE NUMBER OF THE CASE;
   19    (E) A WRITTEN STATEMENT SETTING OUT CRIMINAL CHARGES PENDING AGAINST A
   20  WITNESS, WHO SHALL BE IDENTIFIED BY NAME,  WHOM  THE  PROSECUTOR  ANTIC-
   21  IPATES CALLING IN HIS OR HER CASE-IN-CHIEF;
   22    (F)  A  WRITTEN  STATEMENT  SETTING  OUT  THE  FAILURE  OF A POTENTIAL
   23  WITNESS, WHO SHALL BE IDENTIFIED BY NAME, TO MAKE A POSITIVE IDENTIFICA-
   24  TION OF THE ACCUSED IN AN IDENTIFICATION PROCEDURE THAT  HAS  BEEN  HELD
   25  WITH SUCH A WITNESS WITH RESPECT TO THE CRIME;
   26    (G)  A  WRITTEN OR ORAL STATEMENT FROM ANY PERSON OR OTHER INFORMATION
   27  THAT TENDS TO SUPPORT A DEFENSE TO THE CHARGES.
   28    3. PRETRIAL DELIVERY.  WITHOUT A MOTION BY THE DEFENSE, THE  FOLLOWING
   29  INFORMATION  MUST  BE  DISCLOSED AND DELIVERED NOT LATER THAN TWENTY-ONE
   30  DAYS PRIOR TO THE DATE FIRST SET FOR TRIAL:
   31    (A) INFORMATION THAT CASTS DOUBT ON THE  CREDIBILITY  OR  ACCURACY  OF
   32  EVIDENCE,  INCLUDING  TESTIMONY OF WITNESSES, CONCERNING MATERIAL ISSUES
   33  RELATING TO WHETHER A  CRIME  WAS  COMMITTED  AND  WHETHER  THE  ACCUSED
   34  COMMITTED  IT,  THAT THE PROSECUTOR ANTICIPATES PRESENTING IN HIS OR HER
   35  CASE-IN-CHIEF;
   36    (B) ANY INCONSISTENT WRITTEN OR ORAL STATEMENT REGARDING  THE  ALLEGED
   37  CRIMINAL CONDUCT OF THE ACCUSED OR A DESCRIPTION OF SUCH STATEMENT, MADE
   38  BY  A  PERSON  WHOM  THE  PROSECUTION  ANTICIPATES CALLING IN HIS OR HER
   39  CASE-IN-CHIEF;
   40    (C) ANY STATEMENT  REGARDING  THE  ALLEGED  CRIMINAL  CONDUCT  OF  THE
   41  ACCUSED OR A DESCRIPTION OF SUCH STATEMENT, MADE ORALLY OR IN WRITING BY
   42  ANY  PERSON,  THAT  IS  INCONSISTENT  WITH A STATEMENT MADE ORALLY OR IN
   43  WRITING BY A WITNESS THE PROSECUTION ANTICIPATES CALLING IN HIS  OR  HER
   44  CASE-IN-CHIEF;
   45    (D) ANY INFORMATION REFLECTING BIAS OR PREJUDICE AGAINST THE DEFENDANT
   46  BY  A  WITNESS  WHOM  THE  PROSECUTOR  ANTICIPATES CALLING IN HIS OR HER
   47  CASE-IN-CHIEF;
   48    (E) A WRITTEN DESCRIPTION OF ANY PRIOR  BAD  ACT  THAT  CONSTITUTES  A
   49  CRIME KNOWN BY THE PROSECUTOR TO HAVE BEEN COMMITTED BY ANY WITNESS WHOM
   50  THE PROSECUTION ANTICIPATES CALLING IN HIS OR HER CASE-IN-CHIEF;
   51    (F) INFORMATION KNOWN OR ASCERTAINABLE TO THE PROSECUTOR OF ANY MENTAL
   52  OR  PHYSICAL  IMPAIRMENT  OF ANY WITNESS WHOM THE PROSECUTOR ANTICIPATES
   53  CALLING IN HIS OR HER CASE-IN-CHIEF THAT MAY CAST DOUBT ON  THE  ABILITY
   54  OF  THAT WITNESS TO OBSERVE AND ACCURATELY AND TRUTHFULLY RECALL, AND TO
   55  RELATE INFORMATION ABOUT A RELEVANT EVENT OR OTHER MATERIAL INFORMATION;
       S. 2044                             3
    1    (G) ANY OTHER INFORMATION THAT IS WITHIN THE  DEFINITION  SET  OUT  IN
    2  SUBDIVISION ONE OF THIS SECTION;
    3    (H)  ANYTHING REQUIRED TO BE DISCLOSED, PRIOR TO TRIAL, TO THE DEFEND-
    4  ANT BY THE PROSECUTOR, PURSUANT TO THE CONSTITUTION OF THIS STATE OR  OF
    5  THE UNITED STATES.
    6    4.  DELIVERY  OF  INFORMATION.  THE  PROSECUTOR  SHALL DISCLOSE TO THE
    7  DEFENDANT AND MAKE AVAILABLE FOR INSPECTION, EXAMINATION,  PHOTOCOPYING,
    8  COPYING,  PRINT  OUT,  RETRIEVAL,  TESTING, OR INTERVIEW (FOR STATEMENTS
    9  PREVIOUSLY MADE BUT NOT RECORDED IN WRITING OR MECHANICALLY) OR  BY  ANY
   10  OTHER  METHOD  OF  ACCESS,  ALL INFORMATION INCLUDING BUT NOT LIMITED TO
   11  THAT IN PROPERTY, DOCUMENTS, REPORTS, RECORDINGS,  VIDEOS,  RECORDS,  IN
   12  THE  KNOWLEDGE  OF  A  PERSON  BUT  NOT RECORDED (ALL HEREINAFTER CALLED
   13  INFORMATION) WHICH WOULD PROVIDE THE INFORMATION SET OUT IN SUBDIVISIONS
   14  ONE, TWO, AND THREE OF THIS SECTION REGARDLESS OF WHETHER SUCH  INFORMA-
   15  TION  WOULD  ITSELF CONSTITUTE ADMISSIBLE EVIDENCE AT TRIAL OR IS OTHER-
   16  WISE KNOWN TO THE DEFENDANT.
   17    5. CONTINUING OBLIGATION. IF AT ANY TIME AFTER THE  TIME  PERIODS  SET
   18  FORTH  ABOVE THE PROSECUTOR LEARNS OF ADDITIONAL INFORMATION REQUIRED TO
   19  BE DISCLOSED TO THE DEFENDANT PURSUANT  TO  SUBDIVISIONS  ONE,  TWO  AND
   20  THREE  OF THIS SECTION, THE PROSECUTOR SHALL, PURSUANT TO THE CONTINUING
   21  OBLIGATION TO DELIVER TO THE DEFENSE THE INFORMATION REQUIRED BY  SUBDI-
   22  VISIONS  ONE, TWO AND THREE OF THIS SECTION, PROMPTLY NOTIFY THE DEFEND-
   23  ANT AND THE COURT OF THE EXISTENCE OF SUCH INFORMATION AND EXPEDITIOUSLY
   24  MAKE SUCH ITEMS AVAILABLE TO THE DEFENDANT FOR INSPECTION, PHOTOCOPYING,
   25  COPYING, TESTING OR OTHER REPRODUCTION AS SET OUT IN SUBDIVISION FOUR OF
   26  THIS SECTION.
   27    6. APPLICATION TO THE COURT. (A) THE PROSECUTOR MAY SEEK A  PROTECTIVE
   28  ORDER BASED ON A REASONABLE SHOWING THAT A WITNESS OR OTHER PERSON WOULD
   29  BE ENDANGERED BY DISCLOSURE OF THE INFORMATION REQUIRED BY THIS SECTION.
   30  IF  THE  COURT  FINDS  THAT THE PROSECUTOR HAS MADE A REASONABLE SHOWING
   31  THAT A WITNESS OR OTHER PERSON WOULD BE ENDANGERED  BY  DISCLOSURE,  THE
   32  COURT  SHALL CONDUCT AN IN CAMERA REVIEW OF THE CLAIM, AND, IF APPROPRI-
   33  ATE, REDACT THE INFORMATION GIVEN TO THE DEFENSE UNTIL SUCH TIME AS  THE
   34  LAW  OR OTHER CIRCUMSTANCES OF THE CASE REQUIRE DISCLOSURE OF THE INFOR-
   35  MATION.
   36    (B) IF IN THE CIRCUMSTANCES OF A CASE, THE PROSECUTOR,  AT  ANY  TIME,
   37  ASSERTS  THAT  INFORMATION WAS NOT DELIVERED OR WAS DELIVERED LATE OR IS
   38  NOT EXCULPATORY WITHIN THE TERMS OF THIS STATUTE OR AS REQUIRED  BY  THE
   39  STATE OR UNITED STATES CONSTITUTIONS AND WAS NOT DELIVERED BASED ON THAT
   40  REASON,  THE  COURT  SHALL  MAKE  AN INDEPENDENT EVALUATION AND DETERMI-
   41  NATION, AFTER HEARING FROM DEFENSE COUNSEL, AS TO WHETHER  THE  INFORMA-
   42  TION SHOULD BE DELIVERED PURSUANT TO THIS SUBDIVISION.
   43    (C)  THE  PROSECUTOR'S  VIEW OF WHETHER THE INFORMATION IS TRUTHFUL OR
   44  ACCURATE SHALL NOT BE A FACTOR USED BY THE PROSECUTOR OR  THE  COURT  TO
   45  DETERMINE  WHETHER  THE  INFORMATION  MUST  BE  DELIVERED TO THE DEFENSE
   46  PURSUANT TO THIS SECTION.
   47    7. INQUIRIES. PRIOR TO THE REQUIRED DATES FOR THE DISCLOSURE OF INFOR-
   48  MATION TO THE DEFENSE, THE PROSECUTOR  SHALL  MAKE  INQUIRIES  TO  LEARN
   49  WHETHER  THOSE AGENCIES DEEMED BY LAW TO BE ASSISTING THE PROSECUTOR ARE
   50  IN POSSESSION OF INFORMATION DEFINED IN SUBDIVISIONS ONE, TWO, AND THREE
   51  OF THIS SECTION, AND SHALL OBTAIN THE INFORMATION FOR  DELIVERY  TO  THE
   52  DEFENSE IN ACCORD WITH THIS SECTION.
   53    8. CONFERENCE AND CERTIFICATION. (A) AT A TIME SET BY THE COURT BEFORE
   54  THE  FIRST  DESIGNATED TRIAL DATE AND AT SUCH FURTHER TIMES AS THE COURT
   55  ORDERS, THE PROSECUTOR SHALL IDENTIFY FOR THE COURT THE INFORMATION THAT
   56  HAS BEEN DELIVERED TO THE DEFENSE AND CERTIFY THE  DELIVERY.  THE  COURT
       S. 2044                             4
    1  SHALL HOLD A CONFERENCE TO DETERMINE WHETHER THE PROSECUTOR HAS EXAMINED
    2  THE  PROSECUTOR'S  FILE  AND THE FILES OF THOSE ASSISTING THE PROSECUTOR
    3  AND HAS DELIVERED THE REQUIRED INFORMATION.
    4    (B) IF THE PROSECUTOR DELIVERS TO THE DEFENSE PURSUANT TO THIS STATUTE
    5  LARGE QUANTITIES OF INFORMATION, WHETHER OF DOCUMENTS, ELECTRONIC INFOR-
    6  MATION,  OR  OTHER FORMAT, WITHOUT IDENTIFICATION OF ITS SIGNIFICANCE TO
    7  THE CASE, THE COURT SHALL ESTABLISH IN THE CONFERENCE THE PROCEDURE  FOR
    8  IDENTIFICATION OF THE INFORMATION AND IF NEEDED GRANT AN ADJOURNMENT FOR
    9  THAT TO BE ACCOMPLISHED BY THE PROSECUTOR AND EXAMINED BY THE DEFENSE.
   10    9.  SANCTIONS  FOR  LATE  DELIVERY  OR  FAILURE TO DELIVER INFORMATION
   11  DEFINED IN THIS SECTION. WHERE THERE IS A FAILURE BY THE  PROSECUTOR  TO
   12  DELIVER  THE  INFORMATION SET OUT IN THIS SECTION, OR THE INFORMATION IS
   13  DELIVERED AFTER THE REQUIRED TIME PERIOD, AT THE REQUEST OF THE  DEFENSE
   14  OR  IN  THE COURT'S DISCRETION, THE COURT SHALL ORDER ONE OR MORE OF THE
   15  FOLLOWING SANCTIONS:
   16    (A) GRANT AN APPROPRIATE EXTENSION OF TIME IN THE PROCEEDING TO  ALLOW
   17  THE  DEFENSE  TO EXAMINE THE INFORMATION AND TO INVESTIGATE BASED ON THE
   18  LATE DELIVERED INFORMATION. FOR THAT EFFORT, THE COURT MAY AUTHORIZE FOR
   19  THE DEFENSE INVESTIGATORS, LAB TESTS, EXPERTS  AND  OTHER  RESOURCES  TO
   20  CONDUCT THE DEFENSE INVESTIGATION;
   21    (B) REOPEN A PRE-TRIAL HEARING;
   22    (C) PRECLUDE INTRODUCTION OF EVIDENCE;
   23    (D)  INSTRUCT THE JURY THAT THE PROSECUTOR HAS NOT DELIVERED OR DELIV-
   24  ERED ONLY AFTER IMPROPER DELAY EVIDENCE THAT SHOULD HAVE BEEN  DELIVERED
   25  AND  DELIVERED TIMELY AND THAT THE JURORS MAY INFER THAT THE INFORMATION
   26  NOT DISCLOSED WAS EXCULPATORY OR, IF NOT  DISCLOSED  OR  DISCLOSED  ONLY
   27  AFTER  UNDUE DELAY, COULD HAVE LED TO EXCULPATORY INFORMATION AS DEFINED
   28  IN SUBDIVISIONS ONE, TWO AND THREE OF THIS SECTION;
   29    (E) NOTIFY THE SUPERVISING PROSECUTOR;
   30    (F) REFER THE MATTER TO THE APPROPRIATE ATTORNEY DISCIPLINARY  COMMIT-
   31  TEE PURSUANT TO SUBDIVISION TEN OF THIS SECTION IF AFTER CONDUCTING SUCH
   32  INQUIRY  AS  THE  COURT DEEMS APPROPRIATE AND ISSUING AN OPINION STATING
   33  THE COURT'S FINDINGS, THE ATTORNEY'S CONDUCT IS ASSERTED TO BE  IMPROPER
   34  UNDER THE RULES OF PROFESSIONAL CONDUCT.
   35    10.  LAWYER  SANCTIONS.  (A) ANY JUDICIAL OPINION WHICH CONCLUDES THAT
   36  THERE WAS AN INTENTIONAL OR RECKLESS FAILURE TO COMPLY WITH THIS SECTION
   37  BY A PROSECUTOR SHALL BE FORWARDED BY THE CLERK OF THE  COURT  IN  WHICH
   38  THE  OPINION IS FILED TO THE ATTORNEY DISCIPLINARY COMMITTEE WITH JURIS-
   39  DICTION.
   40    (B) IF IN CONNECTION WITH THE OBLIGATION TO  DELIVER  INFORMATION  SET
   41  OUT  IN  THIS  SECTION  OR  THE STATE AND UNITED STATES CONSTITUTIONS, A
   42  TRIAL OR APPELLATE COURT HAS CONCLUDED THAT IN THE COURSE OF A  CRIMINAL
   43  PROCEEDING,  A  PROSECUTOR  HAS  VIOLATED  RULES 3.4(A)(1), 3.4(A)(3) OR
   44  3.8(B) OF THE RULES OF PROFESSIONAL CONDUCT, OR OTHER RELEVANT  STATUTES
   45  AND  RULES,  BY INTENTIONALLY OR RECKLESSLY FAILING TO DELIVER OR TIMELY
   46  DELIVER TO THE DEFENSE THE INFORMATION SET  OUT  IN  THIS  SECTION,  THE
   47  CONDUCT  SHALL  BE REFERRED BY THE JUDGE PURSUANT TO RULE 100.3(D)(2) OF
   48  THE CODE OF JUDICIAL CONDUCT TO THE ATTORNEY DISCIPLINARY  COMMITTEE  OF
   49  THE APPROPRIATE JUDICIAL DISTRICT FOR PROCEEDINGS PURSUANT TO APPLICABLE
   50  RULES.
   51    (C) IF AN ATTORNEY HAS A REASONABLE BASIS TO BELIEVE THAT A PROSECUTOR
   52  HAS INTENTIONALLY OR RECKLESSLY FAILED TO DELIVER INFORMATION AS DEFINED
   53  IN  THIS  STATUTE,  THAT ATTORNEY SHALL NOTIFY THE ATTORNEY DISCIPLINARY
   54  COMMITTEE OF THE APPROPRIATE JUDICIAL DISTRICT PURSUANT TO  RULE  8.3(A)
   55  OF  THE  RULES OF PROFESSIONAL CONDUCT FOR PROCEEDINGS PURSUANT TO COURT
   56  RULES.
       S. 2044                             5
    1    (D) IF MORE THAN ONE EVENT IS REFERRED TO  THE  ATTORNEY  DISCIPLINARY
    2  COMMITTEE, THE REFERRALS SHALL BE CONSOLIDATED.
    3    11.  USE  OF  FALSE  INFORMATION. THE PROVISIONS OF SUBDIVISION TEN OF
    4  THIS SECTION SHALL APPLY TO A PROSECUTOR FOR THE KNOWING OR RECKLESS USE
    5  OF FALSE OR UNTRUTHFUL EVIDENCE.
    6    S 2. Subdivision 1 of section 240.20 of the criminal procedure law  is
    7  amended by adding a new paragraph (l) to read as follows:
    8    (L) INFORMATION RESULTING FROM COMPARING DNA TEST RESULTS ON SPECIMENS
    9  FROM CRIME SCENE SAMPLE OR SAMPLES OBTAINED IN THE COURSE OF AN INVESTI-
   10  GATION  OF AN ALLEGED CRIME WITH THE DNA RECORDS MAINTAINED BY OR AVAIL-
   11  ABLE THROUGH THE STATE DNA IDENTIFICATION INDEX ESTABLISHED PURSUANT  TO
   12  NEW YORK LAW OR ANY OFFICIAL FEDERAL DNA INDEX.
   13    S  3. Subdivision 1 of section 440.10 of the criminal procedure law is
   14  amended by adding a new paragraph (j) to read as follows:
   15    (J) THE PEOPLE HAVE FAILED TO PROVIDE OR TO PROVIDE IN A TIMELY MANNER
   16  EVIDENCE EXCULPATORY TO THE DEFENSE AS DEFINED IN SECTION 240.25 OF THIS
   17  CHAPTER AND HAVE FAILED TO PROVE THAT THERE WAS NO POSSIBILITY THAT  THE
   18  INFORMATION WOULD HAVE AFFECTED THE DECISION.
   19    S  4.  This  act  shall take effect on the sixtieth day after it shall
   20  have become a law.