NY Crim Pro L § 10.40 (2021)
2021 New York Laws CPL - Criminal Procedure Part 1 - General Provisions Title B - The Criminal Courts Article 10 - The Criminal Courts 10.40 - Chief Administrator to Prescribe Forms and to Authorize Use of Electronic Filing.

* § 10.40 Chief administrator to prescribe forms and to authorize use of             electronic filing.   1.  The  chief  administrator  of  the  courts shall have the power to adopt, amend and rescind forms for the efficient and just administration of this chapter. Such forms shall include, without limitation, the forms described in paragraph (z-1) of subdivision two of section  two  hundred twelve  of the judiciary law. A failure by any party to submit papers in compliance with forms authorized by this section shall  not  be  grounds for that reason alone for denial or granting of any motion.   2.   (a)  Notwithstanding  any  other  provision  of  law,  the  chief administrator, with the approval of  the  administrative  board  of  the courts,  may  promulgate  rules  authorizing  a  program  in  the use of electronic means ("e-filing") in the supreme court  and  in  the  county court  for  (i)  the filing with a court of an accusatory instrument for the purpose of commencement of a criminal  action  or  proceeding  in  a superior  court, as provided by articles one hundred ninety-five and two hundred of this chapter, and (ii) the filing and service  of  papers  in pending  criminal  actions and proceedings. Provided, however, the chief administrator shall consult with the county clerk of  a  county  outside the  city  of  New  York  before  the  use  of electronic means is to be authorized in the supreme court or county court of such  county,  afford him  or  her  the  opportunity  to submit comments with respect thereto, consider any such comments and obtain  the  agreement  thereto  of  such county clerk.  (b)  (i) Except as otherwise provided in this paragraph, participation in this program shall be strictly voluntary and  will  take  place  only upon consent of all parties in the criminal action or proceeding; except that  a  party's  failure  to consent to participation shall not bar any other party to the action from filing and serving papers  by  electronic means upon the court or any other party to such action or proceeding who has  consented  to  participation.  Filing  an  accusatory instrument by electronic means with the court for the purpose  of  commencement  of  a criminal action or proceeding shall not require the consent of any other party;  provided,  however,  that upon such filing any person who is the subject of such accusatory instrument and any attorney for  such  person shall  be  permitted  to  immediately  review  and obtain copies of such instrument if such person or attorney would have been authorized by  law to review or copy such instrument if it had been filed with the court in paper form.   No party shall be compelled, directly or indirectly, to participate in e-filing.  All  parties  shall  be  notified clearly, in plain language, about their options to participate in e-filing. Where  a  party  is  not represented by counsel, the clerk shall explain such party's options for electronic  filing in plain language, including the option for expedited processing, and shall inquire whether he or she wishes  to  participate, provided  however  the  unrepresented  litigant  may  participate in the program only upon his or her request, which shall be documented  in  the case   file,  after  said  party  has  been  presented  with  sufficient information in plain language concerning the program.  (ii) The chief administrator may eliminate the requirement of  consent to  participation  in  this  program in supreme and county courts of not more than six counties  provided  he  or  she  may  not  eliminate  such requirement  for  a  court without the consent of the district attorney, the consent of the criminal defense bar as defined in subdivision  three of  this  section  and  the consent of the county clerk of the county in which such court presides.   Notwithstanding the foregoing provisions  of  this  subparagraph,  the chief  administrator  shall  not eliminate the requirement of consent to  participation in a county hereunder until he or she shall have  provided all    persons   and   organizations,   or   their   representative   or representatives, who regularly appear in criminal actions or proceedings in  the  superior  court  of  such  county  with  reasonable  notice and opportunity to submit comments with respect thereto and shall have given due consideration to all such comments, nor until he or she  shall  have consulted  with  the  members  of  the  advisory  committee specified in subparagraph (v) of paragraph (u) of  subdivision  two  of  section  two hundred twelve of the judiciary law.  (c)  Where  the  chief  administrator  eliminates  the  requirement of consent as provided in  subparagraph  (ii)  of  paragraph  (b)  of  this subdivision,  he  or she shall afford counsel the opportunity to opt out of the program, via presentation of a prescribed form to be  filed  with the  court  where the criminal action is pending. Said form shall permit an attorney to opt out of participation in the program under any of  the following circumstances, in which event, he or she will not be compelled to participate:  (i)  Where  the  attorney certifies in good faith that he or she lacks appropriate computer hardware and/or connection to the  internet  and/or scanner  or  other  device  by  which  documents  may be converted to an electronic format; or  (ii) Where the attorney certifies in good faith that he or  she  lacks the  requisite  knowledge  in  the  operation  of  such computers and/or scanners  necessary  to  participate.   For   the   purposes   of   this subparagraph,  the  knowledge  of  any  employee  of an attorney, or any employee of the attorney's law firm, office or business who  is  subject to such attorney's direction, shall be imputed to the attorney.   Notwithstanding  the foregoing provisions of this paragraph: (A) where a party is not represented by counsel,  the  clerk  shall  explain  such party's  options  for electronic filing in plain language, including the option for expedited processing, and shall inquire  whether  he  or  she wishes  to  participate, provided however the unrepresented litigant may participate in the program only upon his or her request, which shall  be documented  in  the  case file, after said party has been presented with sufficient information in plain language concerning the program;  (B)  a party  not  represented  by counsel who has chosen to participate in the program shall be afforded the opportunity to opt out of the program  for any  reason  via  presentation of a prescribed form to be filed with the clerk of the court where the proceeding is pending; and (C) a court  may exempt  any  attorney  from being required to participate in the program upon application for such exemption, showing good cause therefor.  (d)(i) Nothing in this section shall affect  or  change  any  existing laws  governing  the  sealing  and  confidentiality  of court records in criminal proceedings or access to court records by the parties  to  such proceedings,  nor  shall  this section be construed to compel a party to file a sealed document by electronic means.  (ii) Notwithstanding any other provision of this section, no paper  or document  that  is filed by electronic means in a criminal proceeding in supreme court or county court shall be available for  public  inspection on-line.  Subject  to  the  provisions  of  existing  laws governing the sealing and confidentiality  of  court  records,  nothing  herein  shall prevent  the  unified  court system from sharing statistical information that does not include any papers or documents  filed  with  the  action; and,  provided further, that this paragraph shall not prohibit the chief administrator, in the exercise of his or her  discretion,  from  posting papers  or  documents  that  have  not  been sealed pursuant to law on a public website maintained by the unified court  system  where:  (A)  the website is not the website established by the rules promulgated pursuant  to  paragraph  (a) of this subdivision, and (B) to do so would be in the public  interest.  For  purposes  of  this   subparagraph,   the   chief administrator,  in  determining whether posting papers or documents on a public website is in the public interest, shall, at a minimum, take into account  for  each  posting  the following factors: (A) the type of case involved; (B) whether such posting  would  cause  harm  to  any  person, including  especially  a minor or crime victim; (C) whether such posting would include lewd or scandalous matters; and (D) the  possibility  that such papers or documents may ultimately be sealed.  (iii)  Nothing  in  this  section shall affect or change existing laws governing service of process, nor shall this  section  be  construed  to abrogate  existing  personal  service  requirements  as set forth in the criminal procedure law.   3. For purposes of this section, the following terms  shall  have  the following meanings:  (a)  "Consent of the criminal defense bar" shall mean that consent has been obtained from all provider  offices  and/or  organizations  in  the county  that  represented  twenty-five  percent  or  more of the persons represented by  public  defense  providers  pursuant  to  section  seven hundred twenty-two of the county law, as shown in the most recent annual reports  filed  pursuant  to  subdivision  one  of section seven hundred twenty-two-f of the county  law.  Such  consent,  when  given,  must  be expressed  in  a  written  document  that is provided by a person who is authorized  to  consent  on  behalf  of  the  relevant  public  defender organization, agency or office; and  (b)  "Electronic means" shall be as defined in subdivision (f) of rule twenty-one hundred three of the civil practice law and rules; and  (c) The "filing and service of papers in pending criminal actions  and proceedings"  shall include the filing and service of a notice of appeal pursuant to section 460.10 of this chapter.   * NB Effective until September 1, 2022 * § 10.40 Chief administrator to prescribe forms.   The chief administrator of the courts shall have the power  to  adopt, amend  and  rescind  forms  for the efficient and just administration of this chapter. Such forms shall include, without  limitation,  the  forms described  in  paragraph (z-1) of subdivision two of section two hundred twelve of the judiciary law. A failure by any party to submit papers  in compliance  with  forms  authorized by this section shall not be grounds for that reason alone for denial or granting of any motion.   * NB Effective September 1, 2022