Defendant’s Demand For Discovery In New York Criminal Cases
Discovery in New York criminal cases is very limited compared to discovery in New York civil cases. However, a New York criminal defense attorney is allowed-amongst other things- to serve a written “Demand For Discovery” (A/K/A “Demand To Produce”) within thirty days of the defendant’s arraignment or their appearance in the case demanding the prosecution turn over to the defense certain information and material for inspection, photographing, copying or testing including:
a. Statements by the defendant or any defendant to be tried jointly that was made to the police or others acting on behalf of the police anytime other than during the commission of the criminal transaction [CPL §240.20(a)];
b. A copy of the grand jury testimony of the defendant and any defendant to be tried jointly [CPL §240.20(b)];
c. Any writing concerning a physical or mental examination relating to the criminal action [CPL §240.20(c)];
d. Any writing concerning any scientific test or experiment relating to the criminal action such as the results of a blood or urine test [CPL§ 240.20(c);
e. Any photograph or drawing related to the case including the defendant’s mug shot [CPL § 240.20(d);
f. Any photograph , photocopy or reproduction of any stolen property made before it was returned to its owner [CPL §240.20(e)];
g. Any other property seized from the defendant or any defendant to be tried jointly [CPL§240.20(f)];
h. Any tape or electronic recordings which the prosecutor intends to introduce at trial [CPL §240.20(g)];
i. Anything required to be disclosed by the prosecutor to the defendant prior to trial by the constitution of this state or the United States including information favorable ( Brady material) to the defense [CPL §240.20(h)];
j. The approximate date, time and place of the offense charged and of the defendant’s arrest [CPL§240.20(i)] ;
k. The time, place and manner of notice of those individuals who are not authorized to use a computer in the prosecution of an offense involving computers such as computer trespass; [CPL § 240.20(j) and PL §156(6)] ; and
l. Inspection, calibration or repair records of machines or instruments used in vehicle and traffic law cases such as a breathalyzer or a radar gun [CPL §240.20(k)].
The prosecutor is required to make a diligent, good faith effort to ascertain the existence of demanded property and to make it available for discovery if it exists even if it may not be in the prosecutor’s possession, custody or control. [CPL §240.20(2)] However, the prosecutor is not required to obtain demanded property by using a subpoena duces tecum where the defendant could do so himself. [CPL §240.20(2)] The prosecutor has a continuing obligation to provide the requested discovery material to the defense throughout the pendency of the case. [CPL§240.60]
The prosecutor should respond to the defendant’s demand within fifteen days or as soon thereafter as practical [CPL §240.80(3)]. The prosecutor may refuse to disclose any information which he reasonably believes is not discoverable by a demand to produce. [CPL §240.35] The prosecutor may also refuse to disclose any information which he reasonably believes a protective order would be warranted. [CPL §240.35] If the prosecutor refuses to disclose information, he must serve upon defense counsel and file with the court a written statement fully setting forth the grounds for his refusing to disclose the information. [CPL §240.35] This statement should be filed and served by the prosecutor within fifteen days of his receipt of defendant’s demand for discovery. [CPL §240.80(2)]
If the prosecutor fails or refuses to fully respond to the defendant’s demand for discovery within fifteen days, defense counsel should file -together with any other appropriate motions- a motion seeking an order from the court compelling the prosecutor to fully respond to the demand. The motion to compel discovery should generally be filed within forty- five after the defendant’s arraignment on the charges as part of the defendant’s omnibus motion. [CPL §240(1)]
The prosecutor may serve and file a motion or cross motion seeking a protective order denying, limiting, conditioning, delaying or regulating discovery for good cause. [CPL §240.50(1)] Good cause includes but is not limited to: protection of physical evidence; protection of witnesses; protection of the legitimate needs of law enforcement; and/or protection of the confidentiality of informants. [CPL §240.50(1)]
If the court finds the prosecution unjustifiably failed to provide discovery material to the defense it may order: the material be disclosed; give the defense a continuance, prohibit the prosecutor from calling certain witnesses; prohibit the prosecution from introducing certain evidence; and/or impose any other appropriate remedy. [CPL§§240. (1)(a)(b) and 240.70(1)]
