Under New York statute, CPL Article 250, the accused must give the prosecution written notice when raising the so called “alibi defense”. Under CPL 250.20(1), the prosecution may demand notice of any alibi defense and alibi witnesses. The accused, in turn, must provide the prosecution with notice of an alibi defense if the prosecution has served a demand for the notice, and if the accused intends to call alibi witnesses at trial. The purpose of the New York statute is to provide the prosecutor with an opportunity to check on the information.
If the accused willfully fails to provide an alibi notice, under New York law, a judge in New York may preclude the admission of alibi evidence. However, the courts in the State of New York have discretion to extend the alibi notice period upon good cause shown for the delay. Critically, attorney(s) for the accused must do everything possible to follow deadlines to avoid adverse consequences.
Under New York State Law, If the accused does not intend to use an alibi defense at trial, it is most likely in the best interest of the accused to withdraw the notice, because the prosecutor may use the alibi notice as an admission against the defendant. However, the prosecutor may not use such a notice where it is withdrawn. This particular issues was the focus of case decided by the New York Court of Appeals.