2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title J - Prosecution of Indictments in Superior Courts--Plea to Sentence › Article 245 - Discovery › 245.20 - Automatic Discovery.

§ 245.20 Automatic discovery.
1. Initial discovery for the defendant. The prosecution shall disclose
to  the  defendant, and permit the defendant to discover, inspect, copy,
photograph and test, all  items  and  information  that  relate  to  the
subject matter of the case and are in the possession, custody or control
of  the  prosecution  or  persons  under  the prosecution's direction or
control, including but not limited to:
(a) All written or recorded statements, and the substance of all  oral
statements,  made by the defendant or a co-defendant to a public servant
engaged in law enforcement activity or to a person then acting under his
or her direction or in cooperation with him or her.
(b) All transcripts of the testimony of a  person  who  has  testified
before  a  grand  jury,  including but not limited to the defendant or a
co-defendant. If in the exercise of reasonable diligence, and due to the
limited  availability  of  transcription  resources,  a  transcript   is
unavailable   for   disclosure  within  the  time  period  specified  in
subdivision one of section 245.10 of this article, such time period  may
be stayed by up to an additional thirty calendar days without need for a
motion  pursuant  to  subdivision two of section 245.70 of this article;
except that such disclosure shall be made as soon as practicable and not
later than thirty calendar days before the first scheduled  trial  date,
unless  an order is obtained pursuant to section 245.70 of this article.
When the court  is  required  to  review  grand  jury  transcripts,  the
prosecution  shall  disclose such transcripts to the court expeditiously
upon receipt by the prosecutor, notwithstanding the otherwise-applicable
time periods for disclosure in this article.
(c) The names and adequate contact information for all  persons  other
than  law  enforcement  personnel  whom  the  prosecutor  knows  to have
evidence or information relevant  to  any  offense  charged  or  to  any
potential  defense thereto, including a designation by the prosecutor as
to which of those persons may be called as witnesses.  Nothing  in  this
paragraph  shall require the disclosure of physical addresses; provided,
however, upon a motion and good cause shown the  court  may  direct  the
disclosure  of  a  physical  address. Information under this subdivision
relating to the identity of a 911 caller, the victim or  witness  of  an
offense  defined  under  article one hundred thirty or section 230.34 or
230.34-a of the penal law, any other victim or witness of a crime  where
the  defendant  has substantiated affiliation with a criminal enterprise
as defined in subdivision three of section 460.10 of the penal law, or a
confidential informant may be  withheld,  and  redacted  from  discovery
materials,  without need for a motion pursuant to section 245.70 of this
article; but the prosecution shall notify the defendant in writing  that
such  information  has  not  been  disclosed,  unless  the  court  rules
otherwise for good cause shown.
(d) The name and work affiliation of  all  law  enforcement  personnel
whom  the  prosecutor  knows to have evidence or information relevant to
any offense charged or to any potential  defense  thereto,  including  a
designation by the prosecutor as to which of those persons may be called
as  witnesses. Information under this subdivision relating to undercover
personnel may  be  withheld,  and  redacted  from  discovery  materials,
without  need  for  a motion pursuant to section 245.70 of this article;
but the prosecution shall notify the  defendant  in  writing  that  such
information has not been disclosed, unless the court rules otherwise for
good cause shown.
(e)  All  statements, written or recorded or summarized in any writing
or recording, made by persons who have evidence or information  relevant
to  any  offense  charged or to any potential defense thereto, including
all police reports, notes of police and  other  investigators,  and  law

enforcement  agency  reports.  This  provision also includes statements,
written or recorded or  summarized  in  any  writing  or  recording,  by
persons to be called as witnesses at pre-trial hearings.
(f)  Expert  opinion  evidence,  including the name, business address,
current curriculum  vitae,  a  list  of  publications,  and  a  list  of
proficiency  tests and results administered or taken within the past ten
years of each expert witness whom the prosecutor intends to  call  as  a
witness at trial or a pre-trial hearing, and all reports prepared by the
expert  that pertain to the case, or if no report is prepared, a written
statement of the facts and opinions to which the expert is  expected  to
testify  and  a  summary of the grounds for each opinion. This paragraph
does not alter or in any  way  affect  the  procedures,  obligations  or
rights  set forth in section 250.10 of this title. If in the exercise of
reasonable diligence this  information  is  unavailable  for  disclosure
within the time period specified in subdivision one of section 245.10 of
this  article,  that  period  shall  be stayed without need for a motion
pursuant to subdivision two of section 245.70 of  this  article;  except
that  the  prosecution  shall  notify the defendant in writing that such
information has not been disclosed, and such disclosure shall be made as
soon as practicable and not later than sixty calendar  days  before  the
first  scheduled  trial  date,  unless  an order is obtained pursuant to
section 245.70 of this article. When the prosecution's expert witness is
being called in response to disclosure  of  an  expert  witness  by  the
defendant,  the  court shall alter a scheduled trial date, if necessary,
to allow the prosecution thirty calendar days to make the disclosure and
the defendant thirty calendar days to prepare and  respond  to  the  new
materials.
(g) All tapes or other electronic recordings, including all electronic
recordings  of  911  telephone calls made or received in connection with
the alleged criminal incident, and a designation by the prosecutor as to
which of the recordings under this paragraph the prosecution intends  to
introduce at trial or a pre-trial hearing. If the discoverable materials
under  this  paragraph exceed ten hours in total length, the prosecution
may disclose only the recordings that it intends to introduce  at  trial
or  a pre-trial hearing, along with a list of the source and approximate
quantity of other recordings and their general subject matter if  known,
and the defendant shall have the right upon request to obtain recordings
not  previously  disclosed. The prosecution shall disclose the requested
materials as soon as practicable and not less than fifteen calendar days
after the defendant's request, unless an order is obtained  pursuant  to
section  245.70  of this article. The prosecution may withhold the names
and identifying information of any person who contacted 911 without  the
need  for a protective order pursuant to section 245.70 of this article,
provided, however, the defendant may move the court for  disclosure.  If
the  prosecution  intends to call such person as a witness at a trial or
hearing, the prosecution must disclose the name and contact  information
of such witness no later than fifteen days before such trial or hearing,
or as soon as practicable.
(h) All photographs and drawings made or completed by a public servant
engaged in law enforcement activity, or which were made by a person whom
the  prosecutor  intends  to  call  as a witness at trial or a pre-trial
hearing, or which relate to the subject matter of the case.
(i) All photographs, photocopies and reproductions made by or  at  the
direction  of  law  enforcement  personnel  of any property prior to its
release pursuant to section 450.10 of the penal law.
(j) All reports, documents, records, data, calculations  or  writings,
including but not limited to preliminary tests and screening results and
bench  notes and analyses performed or stored electronically, concerning

physical or mental examinations, or scientific tests or  experiments  or
comparisons,  relating  to  the criminal action or proceeding which were
made by or at the request or direction of a public  servant  engaged  in
law  enforcement  activity,  or  which  were  made  by a person whom the
prosecutor intends to call as a witness at trial or a pre-trial hearing,
or which the prosecution intends to introduce at trial  or  a  pre-trial
hearing.  Information  under  this  paragraph  also includes, but is not
limited to, laboratory information management system records relating to
such materials, any preliminary or  final  findings  of  non-conformance
with  accreditation,  industry  or  governmental standards or laboratory
protocols,  and  any  conflicting  analyses  or  results  by  laboratory
personnel  regardless  of the laboratory's final analysis or results. If
the prosecution submitted one or more items for testing to, or  received
results  from, a forensic science laboratory or similar entity not under
the prosecution's direction or control, the court on motion of  a  party
shall  issue  subpoenas  or orders to such laboratory or entity to cause
materials under this paragraph to be made available for disclosure.  The
prosecution  shall not be required to provide information related to the
results of physical or  mental  examinations,  or  scientific  tests  or
experiments  or  comparisons, unless and until such examinations, tests,
experiments, or comparisons have been completed.
(k) All evidence and information, including that  which  is  known  to
police  or  other  law  enforcement  agencies acting on the government's
behalf in the case, that tends to: (i) negate the defendant's  guilt  as
to  a  charged  offense;  (ii)  reduce  the  degree  of  or mitigate the
defendant's culpability  as  to  a  charged  offense;  (iii)  support  a
potential  defense to a charged offense; (iv) impeach the credibility of
a  testifying  prosecution  witness;  (v)  undermine  evidence  of   the
defendant's identity as a perpetrator of a charged offense; (vi) provide
a basis for a motion to suppress evidence; or (vii) mitigate punishment.
Information  under  this  subdivision  shall be disclosed whether or not
such information is  recorded  in  tangible  form  and  irrespective  of
whether  the  prosecutor  credits  the information. The prosecutor shall
disclose the information expeditiously upon its receipt  and  shall  not
delay  disclosure  if  it  is  obtained earlier than the time period for
disclosure in subdivision one of section 245.10 of this article.
(l) A summary of all promises, rewards and inducements made to, or  in
favor  of,  persons  who may be called as witnesses, as well as requests
for consideration by persons who may be called as witnesses  and  copies
of all documents relevant to a promise, reward or inducement.
(m)  A  list  of  all  tangible  objects  obtained  from, or allegedly
possessed by, the defendant or a co-defendant. The list shall include  a
designation  by  the  prosecutor  as to which objects were physically or
constructively possessed by the defendant and were  recovered  during  a
search  or  seizure  by  a public servant or an agent thereof, and which
tangible objects were recovered by a public servant or an agent  thereof
after  allegedly  being  abandoned  by the defendant. If the prosecution
intends to prove the defendant's possession of any tangible  objects  by
means  of a statutory presumption of possession, it shall designate such
intention as  to  each  such  object.  If  reasonably  practicable,  the
prosecution  shall  also designate the location from which each tangible
object was recovered. There is also a right to inspect, copy, photograph
and test the listed tangible objects.
(n) Whether a search warrant  has  been  executed  and  all  documents
relating  thereto, including but not limited to the warrant, the warrant
application, supporting affidavits, a police inventory of  all  property
seized  under  the  warrant,  and a transcript of all testimony or other
oral communications offered in support of the warrant application.
(o) All tangible property that relates to the subject  matter  of  the
case, along with a designation of which items the prosecution intends to
introduce  in  its  case-in-chief at trial or a pre-trial hearing. If in
the exercise of reasonable diligence the prosecutor has  not  formed  an
intention within the time period specified in subdivision one of section
245.10  of  this  article  that  an  item under this subdivision will be
introduced at trial or a pre-trial hearing, the prosecution shall notify
the defendant in writing, and the time  period  in  which  to  designate
items  as exhibits shall be stayed without need for a motion pursuant to
subdivision two of section 245.70 of this article;  but  the  disclosure
shall  be made as soon as practicable and subject to the continuing duty
to disclose in section 245.60 of this article.
(p) A complete record of judgments of conviction  for  all  defendants
and  all  persons designated as potential prosecution witnesses pursuant
to paragraph (c) of this subdivision, other than those witnesses who are
experts.
(q) When it is known to the prosecution, the existence of any  pending
criminal  action against all persons designated as potential prosecution
witnesses pursuant to paragraph (c) of this subdivision.
(r) The approximate date, time and place of the  offense  or  offenses
charged and of the defendant's seizure and arrest.
(s) In any prosecution alleging a violation of the vehicle and traffic
law,  where  the  defendant  is  charged  by  indictment, superior court
information,  prosecutor's  information,  information,   or   simplified
information,  all  records  of  calibration,  certification, inspection,
repair or maintenance of machines and instruments  utilized  to  perform
any  scientific  tests and experiments, including but not limited to any
test of a person's breath, blood, urine or saliva, for the period of six
months prior and six months after such test was conducted, including the
records of gas  chromatography  related  to  the  certification  of  all
reference  standards  and the certification certificate, if any, held by
the operator of the machine or instrument. The time period  required  by
subdivision one of section 245.10 of this article shall not apply to the
disclosure of records created six months after a test was conducted, but
such  disclosure  shall be made as soon as practicable and in any event,
the earlier of fifteen days following receipt, or  fifteen  days  before
the first scheduled trial date.
(t)  In  any  prosecution  alleging  a  violation of section 156.05 or
156.10 of the penal law, the  time,  place  and  manner  such  violation
occurred.
(u)  (i)  A  copy  of all electronically created or stored information
seized or obtained by or on behalf of  law  enforcement  from:  (A)  the
defendant  as described in subparagraph (ii) of this paragraph; or (B) a
source other than the defendant which relates to the subject  matter  of
the case.
(ii)  If  the  electronically created or stored information originates
from a device, account, or other electronically stored source  that  the
prosecution  believes  the  defendant  owned,  maintained, or had lawful
access to and is within  the  possession,  custody  or  control  of  the
prosecution or persons under the prosecution's direction or control, the
prosecution  shall provide a complete copy of the electronically created
or stored information from the device or account or other source.
(iii)  If  possession  of  such  electronically  created   or   stored
information  would  be  a crime under New York state or federal law, the
prosecution shall make those portions of the electronically  created  or
stored  information  that  are  not  criminal  to  possess  available as
specified  under  this  paragraph  and  shall  afford  counsel  for  the
defendant access to inspect contraband portions at a supervised location

that  provides  regular  and reasonable hours for such access, such as a
prosecutor's office, police station, or court.
(iv)  This  paragraph  shall  not  be construed to alter or in any way
affect the right to be free from unreasonable searches and  seizures  or
such  other  rights  a  suspect  or  defendant may derive from the state
constitution or the United States constitution. If in  the  exercise  of
reasonable  diligence  the  information  under  this  paragraph  is  not
available for disclosure within the time period required by  subdivision
one  of  section  245.10  of  this  article, that period shall be stayed
without need for a motion pursuant to subdivision two of section  245.70
of  this article, except that the prosecution shall notify the defendant
in writing that such  information  has  not  been  disclosed,  and  such
disclosure  shall  be  made  as  soon  as practicable and not later than
forty-five calendar days before the first scheduled trial  date,  unless
an order is obtained pursuant to section 245.70 of this article.
2.  Duties  of  the prosecution. The prosecutor shall make a diligent,
good faith effort to ascertain the existence of material or  information
discoverable  under  subdivision  one  of this section and to cause such
material or information to be made  available  for  discovery  where  it
exists  but  is  not  within  the  prosecutor's  possession,  custody or
control; provided that the prosecutor shall not be required to obtain by
subpoena duces tecum material or information  which  the  defendant  may
thereby  obtain.  For  purposes  of subdivision one of this section, all
items and information related to the prosecution  of  a  charge  in  the
possession  of  any  New  York  state or local police or law enforcement
agency shall be deemed to be in the possession of the  prosecution.  The
prosecution  shall  also  identify  any  laboratory  having contact with
evidence related to the prosecution of a charge. This subdivision  shall
not  require  the prosecutor to ascertain the existence of witnesses not
known to the police or another law enforcement agency, or the written or
recorded statements thereof, under paragraph (c) or (e)  of  subdivision
one of this section.
3.  Supplemental  discovery  for  the defendant. The prosecution shall
disclose to the defendant a list of all misconduct and criminal acts  of
the defendant not charged in the indictment, superior court information,
prosecutor's  information, information, or simplified information, which
the prosecution intends to use at trial for purposes of  (a)  impeaching
the  credibility  of  the  defendant, or (b) as substantive proof of any
material issue in the case. In addition the prosecution shall  designate
whether  it  intends  to  use  each listed act for impeachment and/or as
substantive proof.
4. Reciprocal discovery for the prosecution. (a) The defendant  shall,
subject  to constitutional limitations, disclose to the prosecution, and
permit the prosecution to discover, inspect,  copy  or  photograph,  any
material and relevant evidence within the defendant's or counsel for the
defendant's  possession or control that is discoverable under paragraphs
(f), (g), (h), (j), (l) and (o) of  subdivision  one  of  this  section,
which  the  defendant  intends  to  introduce  at  trial  or a pre-trial
hearing, and the names, addresses,  birth  dates,  and  all  statements,
written  or recorded or summarized in any writing or recording, of those
persons other than the defendant whom the defendant intends to  call  as
witnesses at trial or a pre-trial hearing.
(b)  Disclosure  of the name, address, birth date, and all statements,
written or recorded or summarized in any  writing  or  recording,  of  a
person  whom  the  defendant  intends  to call as a witness for the sole
purpose of impeaching a prosecution witness is not required until  after
the prosecution witness has testified at trial.
(c)  If  in  the  exercise  of  reasonable  diligence the reciprocally
discoverable information under paragraph (f) or (o) of  subdivision  one
of  this  section  is  unavailable for disclosure within the time period
specified in subdivision two of section 245.10  of  this  article,  such
time  period  shall  be  stayed  without  need  for a motion pursuant to
subdivision two of section 245.70 of this article;  but  the  disclosure
shall  be made as soon as practicable and subject to the continuing duty
to disclose in section 245.60 of this article.
5. Stay of automatic discovery; remedies and sanctions. Section 245.10
and subdivisions one, two, three and four of this section shall have the
force and effect of a court order,  and  failure  to  provide  discovery
pursuant to such section or subdivision may result in application of any
remedies  or  sanctions  permitted for non-compliance with a court order
under section 245.80 of this article. However, if  in  the  judgment  of
either  party  good  cause  exists  for  declining  to  make  any of the
disclosures set forth above, such party may move for a protective  order
pursuant  to  section  245.70 of this article and production of the item
shall be stayed pending a ruling by the court. The opposing party  shall
be  notified  in writing that information has not been disclosed under a
particular section. When some  parts  of  material  or  information  are
discoverable  but  in  the  judgment  of  a  party good cause exists for
declining to disclose other  parts,  the  discoverable  parts  shall  be
disclosed  and  the  disclosing  party shall give notice in writing that
non-discoverable parts have been withheld.
6. Redactions permitted.  Either  party  may  redact  social  security
numbers and tax numbers from disclosures under this article.
7.  Presumption  of openness. There shall be a presumption in favor of
disclosure when interpreting sections 245.10 and 245.25, and subdivision
one of section 245.20, of this article.