2023 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, 2027
* § 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, 2027