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New York’s New Discovery Law

Under Article 245 (hereafter referred to as the “New Discovery Law”), the  prosecution is required to provide the defendant a variety of information set forth in CPL 245.20; said discovery is to be provided without a demand from the defendant; and CPL §§ 245.10 and 245.20(1)-(4) have the force and effect of a court order, meaning, the failure to provide discovery pursuant to Article 245 may result in application of any remedies or sanctions permitted for non-compliance with a court order under CPL § 245.80.

The prosecution’s initial discovery obligations are to be made as soon as practicable, within 20 days if defendant is incarcerated, after arraignment on an accusatory instrument, which includes a felony complaint. With discovery that is “exceptionally voluminous” or not in the prosecution’s possession, the time may be stayed for an additional 30 days without a motion. CPL 245.10(1)(a). If, in the exercise of “reasonable diligence,” the information is unavailable for disclosure during the normal time frame, the prosecutor “shall” notify the defense in writing, and disclose the information “as soon as practicable.”

The information set forth in CPL 245.20(1) (a) applies to items “in the possession, custody or control of the prosecution or persons under the prosecution’s direction or control.”

Under the clear language of the statute, materials within the possession of law enforcement are imputed to the District Attorney. See CPL § 245.20[2] (“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.”), see also, CPL § 245.55(1) (“The district attorney and the assistant responsible for the case, … shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office sufficient to place within his or her possession or control all material and information pertinent to the defendant and the offense or offenses charged….”); CPL § 245.20(1)(j) (the prosecution must “identity any laboratory having contact with evidence related to the prosecution of a charge.”)

The New Discovery Law also has consequences related to CPL 30.30. Under CPL 245.20(3), the prosecution “shall not be deemed ready for trial” pursuant to CPL 30.30 until the prosecution has filed a “proper” certificate of compliance with its “automatic discovery” obligations. The provision does contain a limited exception where the prosecution can establish an “individualized finding of special circumstances.” Although the statute does not define “special circumstances,” current case law on the term “exceptional circumstances,” as used in CPL 30.30(4)(g), interprets “…the range of the term’s application” to be “limited by the dominant legislative intent of that statute to discourage prosecutorial inaction.” See People v. Clarke, 41 N.Y.S.3d 200 (2016) (interpreting “exceptional circumstances” language in CPL 30.30(4)(g)).

However, the Prosecution is not required to obtain by Subpoena Duces Tecum material or information which the defendant may thereby obtain.” CPL 245.20(2). Effective January 1, 2020, the showing required to sustain any Subpoena Duces Tecum in connection with Article 245 (1)(j) is that the evidence sought is reasonably likely to be relevant and material to the proceedings, and the subpoena is not over-broad or unreasonably burdensome.

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