6.2 - III. Criminal Procedure Law Article 240

• Jurisdiction: New York

III. CRIMINAL PROCEDURE LAW
ARTICLE 240

§ 240.10 Discovery: definition of terms

The following definitions are applicable to this article:

1. “Demand to produce” means a written notice served by and on a party to a criminal action, without leave of the court, demanding to inspect property pursuant to this article and giving reasonable notice of the time at which the demanding party wishes to inspect the property designated.

2. “Attorneys’ work product” means property to the extent that it contains the opinions, theories or conclusions of the prosecutor, defense counsel or members of their legal staffs.

3. “Property” means any existing tangible personal or real property, including, but not limited to, books, records, reports, memoranda, papers, photographs, tapes or other electronic recordings, articles of clothing, fingerprints, blood samples, fingernail scrapings or handwriting specimens, but excluding attorneys’ work product.

4. “At the trial” means as part of the people’s or the defendant’s direct case.

[Case Law Gloss on CPL § 240.10(3)]

“Property” does not include information, leads or potential evidence. It means tangible personal or real property.¹⁰³⁶

§ 240.20 Discovery; upon demand of defendant

1. Except to the extent protected by court order, upon a demand to produce by a defendant against whom an indictment, superior court information, prosecutor’s information, information or simplified information charging a misdemeanor is pending, the prosecutor shall disclose to the defendant and make available for inspection, photographing, copying or testing, the following property:

(a) Any written, recorded or oral statement of the defendant, and of a co-defendant to be tried jointly, made other than in the course of the criminal transaction, to a public servant engaged in law enforcement activity or to a person then acting under his direction or in cooperation with him;

(b) Any transcript of testimony relating to the criminal action or proceeding pending against the defendant, given by the defendant, or by a co-defendant to be tried jointly, before any grand jury;

(c) Any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial;

(d) Any photograph or drawing relating to the criminal action or proceeding which was made or completed by a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial or which the people intend to introduce at trial;

(e) Any photograph, photocopy or other reproduction made by or at the direction of a police officer, peace officer or prosecutor of any property prior to its release pursuant to the provisions of § 450.10 of the penal law, irrespective of whether the people intend to introduce at trial the property or the photograph, photocopy or other reproduction;

(f) Any other property obtained from the defendant, or a co-defendant to be tried jointly;

(g) Any tapes or other electronic recordings which the prosecutor intends to introduce at trial, irrespective of whether such recording was made during the course of the criminal transactions;

(h) Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States.

(i) The approximate date, time and place of the offense charged and of defendant’s arrest.

(j) In any prosecution under penal law § 156.05 or 156.10, the time, place and manner of notice given pursuant to subdivision six of § 156.00 of such law.

(k) In any prosecution commenced in a manner set forth in this subdivision alleging a violation of the vehicle and traffic law, in addition to any material required to be disclosed pursuant to this article, any other provision of law, or the constitution of this state or of the United States, any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examinations were made by or at the request or direction of a public servant engaged in law enforcement activity or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial.

2. The prosecutor shall make a diligent, good faith effort to ascertain the existence of demanded property and to cause such property 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 demanded material which the defendant may thereby obtain.

[Case Law Gloss on CPL § 240.20(1)]

“Against whom an indictment, superior court information, prosecutor’s information, information, or simplified information charging a misdemeanor is pending” means that there is no discovery for felony or misdemeanor complaints. The logic is simple. A complaint is an accusatory instrument that is sufficient to commence a criminal action, but it is not an instrument upon which a defendant may be prosecuted. By limiting discovery to instruments upon which a prosecution may lie, the legislature sought to avoid confusion, harassment and unnecessary, wasteful and incomplete discovery.¹⁰³⁷ Prohibition lies against a trial judge who rules otherwise.¹⁰³⁸ In dicta, the Court of Appeals has noted that a defendant is not entitled to discovery materials “prior to the Grand Jury presentation.”¹⁰³⁹

[Case Law Gloss on CPL § 240.20(1)]

“Make available” means only that the People or defense make discoverable property available for inspection, photographing, copying or testing. It does not mean that one side must deliver the property to the other for these purposes. A simple letter to the adversary or a response to motion papers indicating that discoverable property is available during normal business hours and under reasonable conditions will suffice.¹⁰⁴⁰ A defense demand to inspect a piece of property-type evidence must have a reasonable, articulable basis.¹⁰⁴¹ Any defense testing

should, of course, be conducted under the supervision of the court and with safeguards, analogous to those observed by the prosecution in its own testing, to protect against contamination or destruction of the evidence. The particular safeguards must necessarily be designed on an ad hoc basis in light of the nature, form, quantity and other characteristics of the substance in question and with recognition of other material circumstances of the . . . case. ¹⁰⁴²

[Case Law Gloss on CPL § 240.20(1)(a)]

“Other than in the course of the criminal transaction, to a public servant engaged in law enforcement activity” is a phrase that excludes that sort of statement of a defendant which is part of a crime’s res gestae, such as statements made to an undercover police officer in the course of an illegal drug sale.

[Case Law Gloss on CPL § 240.20(1)(c), (d)]

“Any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, [or photograph or drawing] relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity” involves a view of the People’s scientific evidence as reduced to report or document, or a portion thereof. A defendant is entitled to this sort of information whether or not it is exculpatory.¹⁰⁴³ A violation of this subsection is subject to harmless error analysis.¹⁰⁴⁴ “[T]here is no requirement to disclose the testing methodology employed.”¹⁰⁴⁵ There is obviously no report, document, photograph or drawing to furnish where one has not been prepared,¹⁰⁴⁶ and nondisclosure of test results not reduced to writing does not violate the statute.¹⁰⁴⁷ The statute does not require the People to test anything.¹⁰⁴⁸ Is the report, document, photograph or drawing in existence at the time the discovery demand or motion is made?¹⁰⁴⁹ Is it in the possession, custody or control of the People?¹⁰⁵⁰ If not, a discovery order for its production would be baseless.¹⁰⁵¹ Failure to comply with CPL § 240.20 in a timely manner is not grounds for reversal, unless the delay substantially prejudices a defendant.¹⁰⁵²

[Case Law Gloss on CPL § 240.20(1)(h)]

“Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States”¹⁰⁵³ is a cowcatcher designed to keep New York’s discovery statute coterminous with and informed by decisions from the Court of Appeals and the U.S. Supreme Court on the disclosure of exculpatory evidence to a defendant—commonly referred to as “Brady material.” A defendant’s right to due process of law is violated when the prosecution suppresses favorable evidence that is material to guilt because a defendant must be afforded a meaningful opportunity to present a complete defense. To establish a Brady violation, a defendant must establish that the evidence was favorable to him because it is exculpatory or impeaching in nature and that the evidence was suppressed by the People—and prejudice to him arose because the suppressed evidence was material.¹⁰⁵⁴ The Brady obligation accrues at or before trial. It is not nullified by post-trial events or facts that would or might show the Brady material to be worthless. Any other rule would...