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Posted: July 28, 2019

New York State's Statutory Modifications to Its Criminal Disclosure and Discovery Rules

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New York State has legislatively repealed its discovery and disclosure statute, Article 240 of the Criminal Procedure Law, and replaced it with Article 245 of the Criminal Procedure Law. Article 245, as added, provides for a comprehensive overhaul of New York discovery and disclosure procedures.
Section 245.10 describes timing requirements for disclosures, to include requiring prosecutors to perform their initial disclosure obligations, as defined in newly-added Section 245.20(1) of the Criminal Procedure Law, as soon as practicable, but no later than 15 days after arraignment. Certain materials that the prosecutor claims to be non-discoverable may be withheld pending a determination and ruling of the court pursuant to newly-added Section 245.70 of the Criminal Procedure Law. Section 245.10 also provides for a stay of the disclosure obligations when the “discoverable materials are exceptionally voluminous” or are not reasonably under the control of the prosecution.

The prosecution must perform its supplementary disclosure obligations, as defined in newly-added Section 245.20(3) of the Criminal Procedure Law, as soon as practicable, but no later than 15 days before the first scheduled trial date. In a significant deviation from past practices, Section 245.10 requires that statements of the defendant, as defined in Section 245.20(a), must be disclosed to him or her at least 48 hours before the time that the defendant is scheduled to testify in the grand jury proceeding. This change will substantially alter defendants’ decisions to testify before the grand jury and will enable a more informed decision-making process by counsel and his or her client at that stage.

Newly-added Section 245.10(2) of the Criminal Procedure Law imposes parallel initial and supplemental disclosure obligations on the defendant.
Newly-added Section 245.20 of the Criminal Procedure Law provides for certain automatic disclosure obligations, to include initial disclosure for the defendant, Section 245.20(1), affirmative duties of the prosecutor to ascertain the existence of discoverable materials, Section 245.20(2), supplemental disclosure for the defendant, Section 245.20(3), and reciprocal discovery for the prosecution, Section 245.20(4). Section 245.20(5) also provides for stays of automatic discovery under certain circumstances, as well as sanctions for non-compliance.

Newly-added Section 245.25 of the Criminal Procedure Law mandates certain disclosure prior to the entry of a plea of guilty. Subdivision 245.25(1) applies to disclosure obligations on a preindictment plea on a felony complaint to any crime. Subdivision 245.25(2) applies to disclosure obligations on any other guilty plea.

Newly-added Section 245.30 of the Criminal Procedure Law provides for the issuance of court orders directing the preservation of (subdivision 1), access to (subdivision 2), and discovery of (subdivision 3) evidence. Newly-added Section 245.35 of the Criminal Procedure Law provides for court ordered procedures to facilitate compliance with the parties’ disclosure obligations, to including obligations to confer regarding disclosure matters, the scheduling of a compliance conference, and the obligation of prosecutors to affirmatively seek evidence favorable to the defendant.
Newly-added Section 245.40 of the Criminal Procedure Law requires the provision of certain non-testimonial evidence by the defendant. Newly-added Section 245.45 of the Criminal Procedure Law permits the defendant to seek an order of the court requiring that DNA evidence that is material to the matter be compared with existing DNA databases.

Newly-added Section 245.50 of the Criminal Procedure Law obligates both the prosecutor (subdivision 1) and the defendant (subdivision 2) to provide certificates of compliance upon their compliance of their discovery obligations pursuant to Sections 245.20(1) and 245.20(4) respectively. Subdivision 245.50(3) provides that the prosecution cannot be deemed ready for trial until it has filed its certificate of compliance pursuant to 245.50(1).

Newly-added Section 245.55 specifies that prosecutorial bodies, to include, but not limited to, the District Attorney, maintain sufficient communication to ensure their compliance with their Article 245 obligations, requires state and local law enforcement agencies to make their entire files available to the prosecutorial bodies, and ensures the availability of 911 call and body camera recordings. Newly-added Section 245.60 mandates that all parties have a continuing obligation to disclose. Newly-added Section 245.65 provides for the exemption of work product from the disclosure obligations. Newly-added Section 245.70 provides for the availability of protective orders.

Newly-added Section 245.75 provides for procedures by which the defendant can waive disclosure and newly-added Section 245.80 provides for remedies and sanctions for non-disclosure.

If you would like more information regarding New York State’s modifications to its disclosure and discovery statutes, call me at 917-817-9001 or e-mail me at This blog posting is not designed to provide you or anyone else with legal advice. If you would like legal advice, please contact me or your attorney.