THE EVOLUTION OF JUDICIAL TYRANNY IN THE UNITED STATES:

"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.


Sunday, January 27, 2019

The new New York's new criminal justice reform bill regarding discovery in criminal proceedings. This is the full text, the analysis will follow in a separate article.

S01716 Summary:

BILL NOS01716
 
SAME ASSAME AS UNI. A01431
 
SPONSORBAILEY
 
COSPNSRBENJAMIN, BIAGGI, COMRIE, GIANARIS, HOYLMAN, KAVANAGH, KRUEGER, MONTGOMERY, MYRIE, PARKER, PERSAUD, RAMOS, RIVERA, SAVINO, SEPULVEDA, SERRANO
 
MLTSPNSR
 
Rpld Art 240, add Art 245 §§245.10 - 245.90, amd §§610.20, 65.20, 200.95, 255.10, 255.20, 340.30, 400.27 & 440.30, CP L; amd §§450.10, 460.80 & 480.10, Pen L
 
Establishes new criminal discovery rules; amends cross references.
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S01716 Actions:

BILL NOS01716
 
01/15/2019REFERRED TO CODES
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S01716 Committee Votes:


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S01716 Floor Votes:

There are no votes for this bill in this legislative session.
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S01716 Memo:

Memo not available
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S01716 Text:




 
                STATE OF NEW YORK
        ________________________________________________________________________
 
            S. 1716                                                  A. 1431
 
                               2019-2020 Regular Sessions
 
                SENATE - ASSEMBLY
 
                                    January 15, 2019
                                       ___________
 
        IN  SENATE  --  Introduced  by  Sens.  BAILEY, BENJAMIN, BIAGGI, COMRIE,
          GIANARIS,  HOYLMAN,  KAVANAGH,  KRUEGER,  MONTGOMERY,  MYRIE,  PARKER,
          PERSAUD,  RAMOS,  RIVERA, SAVINO, SEPULVEDA, SERRANO -- read twice and
          ordered printed, and when printed to be committed to the Committee  on
          Codes

        IN  ASSEMBLY  --  Introduced  by  M. of A. LENTOL, TAYLOR, PERRY, ORTIZ,
          JEAN-PIERRE, WEPRIN, DICKENS,  JAFFEE,  BURKE,  CRUZ,  FALL,  FRONTUS,
          JACOBSON,  RAYNOR, REYES -- read once and referred to the Committee on
          Codes
 
        AN ACT to amend the  criminal  procedure  law  and  the  penal  law,  in
          relation  to  establishing new criminal discovery rules; and to repeal
          article 240 of the criminal procedure law relating thereto
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Article 240 of the criminal procedure law is REPEALED.
     2    § 2. The criminal procedure law is amended by adding a new article 245
     3  to read as follows:
     4                                 ARTICLE 245
     5                                  DISCOVERY
     6  Section 245.05 First court appearance.
     7          245.10 Timing of discovery.
     8          245.20 Automatic discovery.
     9          245.25 Disclosure prior to certain guilty pleas.
    10          245.30 Court orders for preservation, access or discovery.
    11          245.35 Court ordered procedures to facilitate compliance.
    12          245.40 Non-testimonial evidence from the defendant.
    13          245.45 DNA comparison order.
    14          245.50 Certificates of compliance; readiness for trial.
    15          245.55 Flow of information.
    16          245.60 Continuing duty to disclose.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05655-05-9
        S. 1716                             2                            A. 1431
 
     1          245.65 Work product.
     2          245.70 Protective orders.
     3          245.75 Waiver of discovery by defendant.
     4          245.80 Remedies or sanctions for non-compliance.
     5          245.85 Admissibility of discovery.
     6          245.90 Depositions.
     7  § 245.05 First court appearance.
     8    Certain  items  in  prosecution's possession. At the defendant's first
     9  court appearance after commencement of a  criminal  action,  the  prose-
    10  cution  shall  disclose  to  the  defendant  any (a) police or other law
    11  enforcement agency reports and written witness  statements  relating  to
    12  the  criminal action or proceeding against the defendant that are within
    13  the prosecution's possession at that  time;  (b)  electronic  recordings
    14  relating to the criminal action or proceeding against the defendant that
    15  are within the prosecution's possession at that time, in accordance with
    16  paragraph  (g) of subdivision one of section 245.20 of this article; and
    17  (c) exculpatory information known to the prosecution at that time. If in
    18  the exercise of reasonable diligence and due to the limited availability
    19  of resources for downloading or copying recordings, a copy of  an  elec-
    20  tronic  recording  discoverable under this section is unavailable at the
    21  first appearance, a copy shall be made and disclosed to the defendant as
    22  soon as practicable but not later than  five  calendar  days  after  the
    23  first appearance. Portions of materials under this section claimed to be
    24  non-discoverable  may be withheld pending a prompt request by the prose-
    25  cution for a determination and ruling of the court under section  245.70
    26  of  this  article; but the discoverable portions of such materials shall
    27  be disclosed to the extent practicable.
    28  § 245.10 Timing of discovery.
    29    1. Prosecution's performance of obligations. (a) The prosecution shall
    30  perform its initial   discovery obligations  under  subdivision  one  of
    31  section  245.20  of  this  article as soon as  practicable but not later
    32  than fifteen calendar days  after  the  defendant's  arraignment  on  an
    33  indictment, superior court information, prosecutor's information, infor-
    34  mation,  or  simplified information. Portions of materials claimed to be
    35  non-discoverable may be withheld pending a determination and  ruling  of
    36  the  court under section 245.70 of this article; but the defendant shall
    37  be notified in writing that information has not been disclosed  under  a
    38  particular subdivision of this section, and the discoverable portions of
    39  such  materials  shall  be disclosed to the extent practicable. When the
    40  discoverable materials are exceptionally voluminous, the time period  in
    41  this paragraph may be stayed by up to an additional thirty calendar days
    42  without need for a motion pursuant to  subdivision two of section 245.70
    43  of this article.
    44    (b)  The  prosecution  shall  perform its supplemental discovery obli-
    45  gations under subdivision three of section 245.20  of  this  article  as
    46  soon  as  practicable  but not later than fifteen calendar days prior to
    47  the first scheduled trial date.
    48    (c) The prosecution shall disclose materials under  paragraph  (a)  of
    49  subdivision  one  of section 245.20 of this article to any defendant who
    50  has been arraigned in a local criminal court upon a currently undisposed
    51  of felony complaint charging an offense which is a subject of a prospec-
    52  tive or pending grand jury proceeding, no later than  forty-eight  hours
    53  before  the  time scheduled for the defendant to testify at a grand jury
    54  proceeding pursuant to subdivision five of section 190.50 of this part.
    55    2. Defendant's performance of obligations. The defendant shall perform
    56  his or her discovery  obligations  under  subdivision  four  of  section
        S. 1716                             3                            A. 1431
 
     1  245.20  of  this article not later than thirty calendar days after being
     2  served with the prosecution's  certificate  of  compliance  pursuant  to
     3  subdivision  one of section 245.50 of this article, except that portions
     4  of  materials  claimed  to be non-discoverable may be withheld pending a
     5  determination and ruling of the court under section 245.70 of this arti-
     6  cle; but the prosecution must be notified in  writing  that  information
     7  has not been disclosed under a particular section.
     8  § 245.20 Automatic discovery.
     9    1. Initial discovery for the defendant. The prosecution shall disclose
    10  to  the  defendant, and permit the defendant to discover, inspect, copy,
    11  photograph and test, all  items  and  information  that  relate  to  the
    12  subject matter of the case and are in the possession, custody or control
    13  of  the  prosecution  or  persons  under  the prosecution's direction or
    14  control, including but not limited to:
    15    (a) All written or recorded statements, and the substance of all  oral
    16  statements,  made by the defendant or a co-defendant to a public servant
    17  engaged in law enforcement activity or to a person then acting under his
    18  or her direction or in cooperation with him or her.
    19    (b) All transcripts of the testimony of a  person  who  has  testified
    20  before  a  grand  jury,  including but not limited to the defendant or a
    21  co-defendant. If in the exercise of reasonable diligence, and due to the
    22  limited  availability  of  transcription  resources,  a  transcript   is
    23  unavailable  for disclosure within the time period specified in subdivi-
    24  sion one of section 245.10 of this article,  such  time  period  may  be
    25  stayed  by  up  to an additional thirty calendar days without need for a
    26  motion pursuant to subdivision two of section 245.70  of  this  article;
    27  except that such disclosure shall be made as soon as practicable and not
    28  later  than  thirty calendar days before the first scheduled trial date,
    29  unless an order is obtained pursuant to section 245.70 of this  article.
    30  When the court is  required to review grand jury transcripts, the prose-
    31  cution  shall  disclose such transcripts to the court expeditiously upon
    32  receipt by the prosecutor, notwithstanding the otherwise-applicable time
    33  periods for disclosure in this article.
    34    (c) The names of, and addresses or adequate alternative contact infor-
    35  mation for, all  persons other than law enforcement personnel  whom  the
    36  prosecutor knows to have evidence or information relevant to any offense
    37  charged  or to any potential defense thereto, including a designation by
    38  the prosecutor as to which of those persons may be called as  witnesses.
    39  Information  under this subdivision relating to a confidential informant
    40  may be withheld, and redacted from discovery materials, without need for
    41  a motion pursuant to section 245.70 of this article; but the prosecution
    42  shall notify the defendant in writing that such information has not been
    43  disclosed, unless the court rules otherwise for good cause shown.
    44    (d) The name and work affiliation of  all  law  enforcement  personnel
    45  whom  the  prosecutor  knows to have evidence or information relevant to
    46  any offense charged or to any potential defense   thereto,  including  a
    47  designation by the prosecutor as to which of those persons may be called
    48  as  witnesses. Information under this subdivision relating to undercover
    49  personnel  may be withheld, and redacted from discovery materials, with-
    50  out need for a motion pursuant to section 245.70 of  this  article;  but
    51  the prosecution shall notify the defendant in writing that such informa-
    52  tion  has  not been disclosed, unless the court rules otherwise for good
    53  cause shown.
    54    (e) All statements, written or recorded or summarized in  any  writing
    55  or  recording, made by persons who have evidence or information relevant
    56  to any offense charged or to any potential   defense thereto,  including
        S. 1716                             4                            A. 1431
 
     1  all  police  reports,  notes  of police and other investigators, and law
     2  enforcement agency reports. This  provision  also  includes  statements,
     3  written  or  recorded  or  summarized  in  any  writing or recording, by
     4  persons to be called as witnesses at pre-trial hearings.
     5    (f)  Expert  opinion  evidence,  including the name, business address,
     6  current curriculum  vitae, a list of publications, and  all  proficiency
     7  tests  and  results  administered  or taken in the current employment or
     8  within the past ten years, whichever is longer, of each  expert  witness
     9  whom the prosecutor intends to call as a witness at trial or a pre-trial
    10  hearing,  and  all  reports  prepared  by the expert that pertain to the
    11  case, or if no report is prepared, a written statement of the facts  and
    12  opinions to which the expert is expected to testify and a summary of the
    13  grounds  for  each  opinion. This paragraph does not alter or in any way
    14  affect the procedures, obligations or rights set forth in section 250.10
    15  of this  title. If in the exercise of reasonable diligence this informa-
    16  tion is unavailable for disclosure within the time period  specified  in
    17  subdivision one of section 245.10 of this article, that period  shall be
    18  stayed  without need for a motion pursuant to subdivision two of section
    19  245.70 of this article; except that the  prosecution  shall  notify  the
    20  defendant  in  writing that such information has not been disclosed, and
    21  such disclosure shall be made as soon as practicable and not later  than
    22  sixty  calendar  days  before  the first scheduled trial date, unless an
    23  order is obtained pursuant to section 245.70 of this article.  When  the
    24  prosecution's  expert  witness is being called in response to disclosure
    25  of an expert witness by the defendant, the court shall alter a scheduled
    26  trial date, if necessary, to  allow the prosecution thirty calendar days
    27  to make the disclosure and the defendant thirty calendar days to prepare
    28  and respond to the new materials.
    29    (g) All tapes or other electronic recordings, including all electronic
    30  recordings of 911 telephone calls made or received  in  connection  with
    31  the alleged criminal incident, and a designation by the prosecutor as to
    32  which  of the recordings under this paragraph the prosecution intends to
    33  introduce at trial or a pre-trial hearing. If the discoverable materials
    34  under this paragraph exceed ten hours in total length,  the  prosecution
    35  may  disclose  only the recordings that it intends to introduce at trial
    36  or a pre-trial hearing, along with a list of the source and  approximate
    37  quantity  of other recordings and their general subject matter if known,
    38  and the defendant shall have the right upon request to obtain recordings
    39  not previously disclosed. The prosecution shall disclose  the  requested
    40  materials as soon as practicable and not less than fifteen calendar days
    41  after  the  defendant's request, unless an order is obtained pursuant to
    42  section 245.70 of this article.
    43    (h) All photographs and drawings made or completed by a public servant
    44  engaged in law  enforcement activity, or which were  made  by  a  person
    45  whom the prosecutor intends to call as a witness at trial or a pre-trial
    46  hearing, or which relate to the subject matter of the case.
    47    (i)  All  photographs, photocopies and reproductions made by or at the
    48  direction of law enforcement personnel of  any  property  prior  to  its
    49  release pursuant to section 450.10 of the penal  law.
    50    (j)  All  reports, documents, records, data, calculations or writings,
    51  including but not limited to   preliminary tests and  screening  results
    52  and  bench  notes  and  analyses  performed  or  stored  electronically,
    53  concerning physical or mental   examinations,  or  scientific  tests  or
    54  experiments  or comparisons, relating to the criminal action or proceed-
    55  ing which were made by or at the request or direction of a public  serv-
    56  ant  engaged in law enforcement activity, or which were made by a person
        S. 1716                             5                            A. 1431
 
     1  whom the prosecutor intends to call as a witness at trial or a pre-trial
     2  hearing, or which the prosecution intends to introduce  at  trial  or  a
     3  pre-trial  hearing.  Information under this paragraph also includes, but
     4  is  not  limited  to,  laboratory  information management system records
     5  relating to such materials, any preliminary or final  findings  of  non-
     6  conformance  with  accreditation,  industry or governmental standards or
     7  laboratory protocols, and any conflicting analyses or results by labora-
     8  tory personnel regardless of the laboratory's final analysis or results.
     9  If the prosecution submitted one  or  more  items  for  testing  to,  or
    10  received  results  from, a forensic science laboratory or similar entity
    11  not under the prosecution's direction or control, the court on motion of
    12  a party shall issue subpoenas or orders to such laboratory or entity  to
    13  cause  materials  under  this paragraph to be made available for disclo-
    14  sure.
    15    (k) All evidence and information, including that  which  is  known  to
    16  police  or  other  law  enforcement  agencies acting on the government's
    17  behalf in the case, that tends to: (i) negate the defendant's  guilt  as
    18  to  a charged offense; (ii) reduce the degree of or mitigate the defend-
    19  ant's  culpability as to a charged offense; (iii)  support  a  potential
    20  defense  to a charged offense; (iv)  impeach the credibility of a testi-
    21  fying prosecution witness; (v) undermine  evidence  of  the  defendant's
    22  identity as a perpetrator of a charged offense; (vi) provide a basis for
    23  a  motion to   suppress evidence; or (vii) mitigate punishment. Informa-
    24  tion under this subdivision shall  be  disclosed  whether  or  not  such
    25  information is recorded in tangible form and irrespective of whether the
    26  prosecutor  credits  the  information. The prosecutor shall disclose the
    27  information expeditiously upon its receipt and shall not  delay  disclo-
    28  sure  if  it  is obtained earlier than the time period for disclosure in
    29  subdivision one of section 245.10 of this article.
    30    (l) A summary of all promises, rewards and inducements made to, or  in
    31  favor  of,  persons  who may be called as witnesses, as well as requests
    32  for consideration by persons who may be called as  witnesses and  copies
    33  of all documents relevant to a promise, reward or inducement.
    34    (m)  A  list  of  all  tangible  objects  obtained  from, or allegedly
    35  possessed by, the defendant  or a co-defendant. The list shall include a
    36  designation by the prosecutor as to which  objects  were  physically  or
    37  constructively  possessed  by  the defendant and were recovered during a
    38  search or seizure by a public servant or an  agent  thereof,  and  which
    39  tangible objects were recovered by a  public servant or an agent thereof
    40  after  allegedly  being  abandoned  by the defendant. If the prosecution
    41  intends to prove the defendant's possession of any tangible  objects  by
    42  means  of a statutory presumption of possession, it shall designate such
    43  intention as to each such object. If reasonably practicable, the  prose-
    44  cution shall also designate the location from which each tangible object
    45  was  recovered.  There  is also a right to inspect, copy, photograph and
    46  test the listed tangible objects.
    47    (n) Whether a search warrant  has  been  executed  and  all  documents
    48  relating  thereto, including but not limited to the warrant, the warrant
    49  application, supporting affidavits, a police inventory of  all  property
    50  seized  under  the  warrant,  and a transcript of all testimony or other
    51  oral communications offered in support of the warrant application.
    52    (o) All tangible property that relates to the subject  matter  of  the
    53  case, along with a designation of which items the prosecution intends to
    54  introduce  in  its  case-in-chief at trial or a pre-trial hearing. If in
    55  the exercise of reasonable diligence the prosecutor has  not  formed  an
    56  intention within the time period specified in subdivision one of section
        S. 1716                             6                            A. 1431
 
     1  245.10  of  this  article  that  an  item under this subdivision will be
     2  introduced at trial or a pre-trial hearing, the prosecution shall notify
     3  the defendant in writing, and the time  period  in  which  to  designate
     4  items  as exhibits shall be stayed without need for a motion pursuant to
     5  subdivision two of section 245.70 of this article;  but  the  disclosure
     6  shall  be made as soon as practicable and subject to the continuing duty
     7  to disclose in section 245.60 of this article.
     8    (p) The results of complete criminal history  record  checks  for  all
     9  defendants and all persons designated as potential prosecution witnesses
    10  pursuant  to  paragraph  (c)  of  this  subdivision,  other  than  those
    11  witnesses who are experts.
    12    (q) When it is known to the prosecution, the existence of any  pending
    13  criminal  action against all persons designated as potential prosecution
    14  witnesses pursuant to paragraph (c) of this subdivision.
    15    (r) The approximate date, time and place of the  offense  or  offenses
    16  charged and of the defendant's seizure and arrest.
    17    (s) In any prosecution alleging a violation of the vehicle and traffic
    18  law, where the defendant is charged by indictment, superior court infor-
    19  mation,  prosecutor's  information,  information, or simplified informa-
    20  tion, all records of calibration, certification, inspection,  repair  or
    21  maintenance  of  machines and instruments utilized to perform any scien-
    22  tific tests and experiments, including but not limited to any test of  a
    23  person's  breath,  blood,  urine or saliva, for the period of six months
    24  prior and six months  after  such  test  was  conducted,  including  the
    25  records of gas chromatography related to the certification of all refer-
    26  ence  standards  and  the certification certificate, if any, held by the
    27  operator of the machine or instrument.
    28    (t) In any prosecution alleging  a  violation  of  section  156.05  or
    29  156.10  of  the  penal  law,  the  time, place and manner such violation
    30  occurred.
    31    (u) (i) A copy of all electronically  created  or  stored  information
    32  seized  or  obtained  by  or  on behalf of law enforcement from: (A) the
    33  defendant as described in subparagraph (ii) of this paragraph; or (B)  a
    34  source  other  than the defendant which relates to the subject matter of
    35  the case.
    36    (ii) If the electronically created or  stored  information  originates
    37  from  a  device, account, or other electronically stored source that the
    38  prosecution believes the defendant  owned,  maintained,  or  had  lawful
    39  access to and is within the possession, custody or control of the prose-
    40  cution  or  persons  under  the  prosecution's direction or control, the
    41  prosecution shall provide a complete copy of the electronically  created
    42  or  stored information from the device or account or other source, and a
    43  designation by the prosecutor as to which portions it intends to  intro-
    44  duce.
    45    (iii)  If possession of such electronically created or stored informa-
    46  tion would be a crime under New York state or federal  law,  the  prose-
    47  cution shall make those portions of the electronically created or stored
    48  information  that  are  not  criminal  to possess available as specified
    49  under this paragraph and shall afford counsel for the  defendant  access
    50  to  inspect  contraband  portions at a supervised location that provides
    51  regular and reasonable hours for such access,  such  as  a  prosecutor's
    52  office, police station, or court.
    53    (iv)  This  paragraph  shall  not  be construed to alter or in any way
    54  affect the right to be free from unreasonable searches and  seizures  or
    55  such  other  rights  a  suspect  or  defendant may derive from the state
    56  constitution or the United States constitution.  If in the  exercise  of
        S. 1716                             7                            A. 1431
 
     1  reasonable  diligence the information under this paragraph is not avail-
     2  able for disclosure within the time period required by  subdivision  one
     3  of  section  245.10 of this article, that period shall be stayed without
     4  need  for a motion pursuant to subdivision two of section 245.70 of this
     5  article, except that the prosecution shall notify the defendant in writ-
     6  ing that such information has not been disclosed,  and  such  disclosure
     7  shall  be  made  as  soon  as  practicable and not later than forty-five
     8  calendar days before the first scheduled trial date, unless an order  is
     9  obtained pursuant to section 245.70 of this article.
    10    2.  Duties  of the prosecution.  The prosecutor shall make a diligent,
    11  good faith effort to ascertain the existence of material or  information
    12  discoverable  under  subdivision  one  of this section and to cause such
    13  material or information to be made  available  for  discovery  where  it
    14  exists  but  is  not  within  the  prosecutor's  possession,  custody or
    15  control; provided that the prosecutor shall not be required to obtain by
    16  subpoena duces tecum material or information  which  the  defendant  may
    17  thereby  obtain.  For  purposes  of subdivision one of this section, all
    18  items and information related to the prosecution  of  a  charge  in  the
    19  possession  of  any  New  York  state or local police or law enforcement
    20  agency, and any information in the possession  of  a  laboratory  having
    21  contact  with  evidence related to the prosecution of a charge, shall be
    22  deemed to be in the possession  of  the  prosecution.  This  subdivision
    23  shall not require the prosecutor to ascertain the existence of witnesses
    24  not  known to the police or another law enforcement agency, or the writ-
    25  ten or recorded statements thereof, under paragraph (c) or (e) of subdi-
    26  vision one of this section.
    27    3. Supplemental discovery for the  defendant.  The  prosecution  shall
    28  disclose  to the defendant a list of all misconduct and criminal acts of
    29  the defendant not charged in the indictment, superior court information,
    30  prosecutor's information, information, or simplified information,  which
    31  the  prosecution  intends to use at trial for purposes of (a) impeaching
    32  the credibility of the defendant, or (b) as  substantive  proof  of  any
    33  material  issue in the case. In addition the prosecution shall designate
    34  whether it intends to use each listed  act  for  impeachment  and/or  as
    35  substantive proof.
    36    4.  Reciprocal discovery for the prosecution. (a) The defendant shall,
    37  subject to constitutional limitations, disclose to the prosecution,  and
    38  permit  the  prosecution  to  discover, inspect, copy or photograph, any
    39  material and relevant evidence within the defendant's or counsel for the
    40  defendant's possession or control that is discoverable under  paragraphs
    41  (f),  (g),  (h),  (j),  (l)  and (o) of subdivision one of this section,
    42  which the defendant intends to introduce at trial  or a pre-trial  hear-
    43  ing,  and the names, addresses, birth dates, and all statements, written
    44  or recorded or summarized in any writing or recording, of those  persons
    45  other than the defendant whom the defendant intends to call as witnesses
    46  at trial or a pre-trial hearing.
    47    (b)  Disclosure  of the name, address, birth date, and all statements,
    48  written or recorded or summarized in any  writing  or  recording,  of  a
    49  person  whom  the  defendant  intends  to call as a witness for the sole
    50  purpose of impeaching a prosecution witness is not required until  after
    51  the prosecution witness has testified at trial.
    52    (c)  If  in  the  exercise  of  reasonable  diligence the reciprocally
    53  discoverable information  under paragraph (f) or (o) of subdivision  one
    54  of  this  section  is unavailable for disclosure within  the time period
    55  specified in subdivision two of section 245.10  of  this  article,  such
    56  time period shall be stayed without need for a motion pursuant to subdi-
        S. 1716                             8                            A. 1431

     1  vision  two of section 245.70 of this  article; but the disclosure shall
     2  be made as soon as practicable and subject to  the  continuing  duty  to
     3  disclose in section 245.60 of this article.
     4    5.  Stay  of  automatic  discovery;  remedies  and sanctions. Sections
     5  245.05 and 245.10 and subdivisions   one, two, three and  four  of  this
     6  section shall have the force and effect of a court order, and failure to
     7  provide  discovery pursuant to such section or subdivision may result in
     8  application of any remedies or sanctions  permitted  for  non-compliance
     9  with  a court order under section 245.80 of this article. However, if in
    10  the judgment of either party good cause exists for declining to make any
    11  of the disclosures set forth above, such party may move for a protective
    12  order pursuant to section 245.70 of this article and production  of  the
    13  item  shall  be stayed pending a ruling by the court. The opposing party
    14  shall be notified in writing that information has not    been  disclosed
    15  under  a  particular section. When some parts of material or information
    16  are discoverable but in the judgment of a party good  cause  exists  for
    17  declining  to  disclose  other  parts,  the  discoverable parts shall be
    18  disclosed and the disclosing party shall give notice in    writing  that
    19  non-discoverable parts have been withheld.
    20    6.  Redactions  permitted.  Either  party  may  redact social security
    21  numbers and tax numbers from disclosures under this article.
    22    7. Presumption of openness. There shall be a presumption in  favor  of
    23  disclosure  when  interpreting  sections  245.05, 245.10 and 245.25, and
    24  subdivision one of section 245.20, of this article.
    25  § 245.25 Disclosure prior to certain guilty pleas.
    26    1. Pre-indictment guilty pleas. Upon a  felony  complaint,  where  the
    27  prosecution has made a pre-indictment guilty plea offer requiring a plea
    28  to  a crime, the prosecutor must disclose to the defense, and permit the
    29  defense to discover, inspect, copy, photograph and test, all  items  and
    30  information  that would be discoverable prior to trial under subdivision
    31  one of section 245.20 of this article and are in the possession, custody
    32  or control of  the  prosecution.  The  prosecution  shall  disclose  the
    33  discoverable  items  and  information  not less than three calendar days
    34  prior to the expiration date of any guilty plea offer by the prosecution
    35  or any deadline imposed by the court for acceptance of the  guilty  plea
    36  offer.  If the prosecution does not comply with the requirements of this
    37  subdivision,  then,  notwithstanding  any  other  provision of law, such
    38  offer shall be deemed available to the defendant  until  three  calendar
    39  days  after  the  prosecution has complied, absent extraordinary circum-
    40  stances involving new  adverse  information  bearing  on  the  defendant
    41  occurring  or  discovered  in the interim that, after appropriate notice
    42  and an opportunity for a hearing, are shown by the prosecution and found
    43  by the court. The court may take other additional appropriate action  as
    44  necessary  to address the non-compliance. The rights under this subdivi-
    45  sion do not apply to items or information that  are  the  subject  of  a
    46  protective  order  under  section  245.70  of  this article; but if such
    47  information tends to be exculpatory,  the  court  shall  reconsider  the
    48  protective  order.  A  defendant  may waive his or her rights under this
    49  subdivision; but a guilty plea offer may  not  be  conditioned  on  such
    50  waiver.
    51    2. Other guilty pleas. Upon an indictment, superior court information,
    52  prosecutor's    information,  information,  simplified  information,  or
    53  misdemeanor complaint, where the prosecution  has  made  a  guilty  plea
    54  offer  requiring  a plea to a crime, the prosecutor must disclose to the
    55  defense, and permit the defense to discover, inspect,  copy,  photograph
    56  and  test, all items and information that would be discoverable prior to
        S. 1716                             9                            A. 1431
 
     1  trial under subdivision one of section 245.20 of this  article  and  are
     2  within the possession, custody or control of the prosecution. The prose-
     3  cution  shall  disclose  the discoverable items and information not less
     4  than seven calendar days prior to the expiration date of any guilty plea
     5  offer  by  the  prosecution  or  any  deadline  imposed by the court for
     6  acceptance of the guilty plea offer. If the prosecution does not  comply
     7  with  the  requirements  of  this subdivision, then, notwithstanding any
     8  other provision of law, such offer shall  be  deemed  available  to  the
     9  defendant  until seven calendar days after the prosecution has complied,
    10  absent extraordinary circumstances  involving  new  adverse  information
    11  bearing  on  the  defendant occurring or discovered in the interim that,
    12  after appropriate notice and an opportunity for a hearing, are shown  by
    13  the  prosecution  and found by the court. The court may take other addi-
    14  tional appropriate action as necessary to  address  the  non-compliance.
    15  The  rights  under this subdivision do not apply to items or information
    16  that are the subject of a protective order under section 245.70 of  this
    17  article;  but  if  such  information  tends to be exculpatory, the court
    18  shall reconsider the  protective order. A defendant may waive his or her
    19  rights under this subdivision; but a guilty plea offer may not be condi-
    20  tioned on such waiver.
    21  § 245.30 Court orders for preservation, access or discovery.
    22    1. Order to preserve evidence. At any time, a party  may  move  for  a
    23  court  order  to  any  individual, agency or other entity in possession,
    24  custody or control of items which relate to the subject  matter  of  the
    25  case  or  are otherwise relevant, requiring that such items be preserved
    26  for a specified period of time. The court shall hear and rule upon  such
    27  motions  expeditiously.  The    court may modify or vacate such an order
    28  upon a showing that preservation  of  particular  evidence  will  create
    29  significant  hardship to such individual, agency or entity, on condition
    30  that the probative value of that evidence is preserved  by  a  specified
    31  alternative means.
    32    2.  Order  to grant access to premises. At any time, the defendant may
    33  move for a court order to any individual,  agency  or  other  entity  in
    34  possession,  custody  or control of a crime scene or other premises that
    35  relates to the subject matter of the  case  or  is  otherwise  relevant,
    36  requiring  that  counsel for the defendant be granted prompt and reason-
    37  able access to inspect, photograph or measure such crime scene or  prem-
    38  ises,  and  that  the  condition  of  the crime scene or premises remain
    39  unchanged in the interim. The  court  shall  hear  and  rule  upon  such
    40  motions  expeditiously.    The  court may modify or vacate such an order
    41  upon a showing that granting access to a particular crime scene or prem-
    42  ises will create significant hardship  to  such  individual,  agency  or
    43  entity,  on  condition  that  the    probative value of such location is
    44  preserved by a specified alternative means.
    45    3. Discretionary discovery by order of the court.  The  court  in  its
    46  discretion  may,  upon  a  showing  by the defendant that the request is
    47  reasonable and that the defendant is unable without  undue  hardship  to
    48  obtain the substantial equivalent by other means, order the prosecution,
    49  or any individual, agency or other entity subject to the jurisdiction of
    50  the court, to make available for disclosure to the defendant any materi-
    51  al or information which potentially relates to the subject matter of the
    52  case and is reasonably likely to be material.
    53    4.  Procedure.  A  motion under this section must  be on notice to any
    54  individual, agency or entity affected by the order. The court may,  upon
    55  request of any individual, agency or entity affected by the order, modi-
    56  fy  or  vacate  the  order  if  compliance would be unreasonable or will
        S. 1716                            10                            A. 1431

     1  create significant hardship to such individual, agency  or  entity.  For
     2  good  cause  shown,  the  court may permit a party seeking or opposing a
     3  discretionary order of discovery  under  this  subdivision,  or  another
     4  affected  individual,  agency  or  entity, to submit papers or, for good
     5  cause shown, testify on the record ex parte or in camera. For good cause
     6  shown, any such papers and a transcript of such testimony may be sealed;
     7  such papers and transcripts shall constitute a part  of  the  record  on
     8  appeal.
     9  § 245.35 Court ordered procedures to facilitate compliance.
    10    To  facilitate  compliance with this article, and to reduce or stream-
    11  line litigation of any  disputes  about  discovery,  the  court  in  its
    12  discretion may issue an order:
    13    1.  Requiring  that the prosecutor and counsel for the defendant dili-
    14  gently confer to attempt to reach an accommodation  as  to  any  dispute
    15  concerning discovery prior to seeking a ruling from the court;
    16    2.  Requiring  a  discovery  compliance conference at a specified time
    17  prior to trial between the prosecutor, counsel for all  defendants,  and
    18  the court or its staff;
    19    3.  Requiring  the  prosecution  to  file an additional certificate of
    20  compliance that states that  the prosecutor and/or an appropriate  named
    21  agent  has  made  reasonable  inquiries of all police officers and other
    22  persons who have participated in investigating or  evaluating  the  case
    23  about  the  existence  of  any  favorable evidence or information within
    24  paragraph (k) of subdivision one of  section  245.20  of  this  article,
    25  including  such  evidence or information that was not reduced to writing
    26  or otherwise memorialized or preserved as evidence,  and  has  disclosed
    27  any such  information to the defendant; and/or
    28    4.  Requiring  other  measures  or  proceedings designed to carry into
    29  effect the goals of this article.
    30  § 245.40 Non-testimonial evidence from the defendant.
    31    1. Availability. After the filing of  an  accusatory  instrument,  and
    32  subject  to  constitutional   limitations, the court may, upon motion of
    33  the prosecution showing probable cause  to  believe  the  defendant  has
    34  committed  the crime, a clear indication that relevant material evidence
    35  will be found, and that the method used to secure such evidence is  safe
    36  and  reliable, require a defendant  to provide non-testimonial evidence,
    37  including to:
    38    (a) Appear in a lineup;
    39    (b) Speak for identification by a witness or potential witness;
    40    (c) Be fingerprinted;
    41    (d) Pose for photographs not involving reenactment of an event;
    42    (e) Permit the taking of samples of the defendant's blood,  hair,  and
    43  other  materials  of  the defendant's body that involves no unreasonable
    44  intrusion thereof;
    45    (f) Provide specimens of the defendant's handwriting; and
    46    (g) Submit to a reasonable  physical  or  medical  inspection  of  the
    47  defendant's body.
    48    2. Limitations. This section shall not be construed to alter or in any
    49  way  affect  the issuance of a similar court order, as may be authorized
    50  by law, before the filing of an accusatory instrument,  consistent  with
    51  such  rights  as the defendant may derive from the state constitution or
    52  the United States constitution. This section shall not be  construed  to
    53  alter  or  in any way affect the administration of a chemical test where
    54  otherwise authorized. An order pursuant to this section  may be  denied,
    55  limited or conditioned as provided in section 245.70 of this article.
    56  § 245.45 DNA comparison order.
        S. 1716                            11                            A. 1431

     1    Where  property  in  the prosecution's possession, custody, or control
     2  consists of a   deoxyribonucleic  acid  ("DNA")  profile  obtained  from
     3  probative  biological  material gathered in connection with the investi-
     4  gation of the crime, or the defendant, or the prosecution of the defend-
     5  ant,  and  the defendant establishes (a) that such profile complies with
     6  federal bureau of investigation or  state  requirements,  whichever  are
     7  applicable and as such requirements are applied to law enforcement agen-
     8  cies  seeking  a keyboard search or similar comparison, and (b) that the
     9  data meets state DNA index  system or national DNA index system criteria
    10  as such criteria are applied to law enforcement agencies seeking such  a
    11  keyboard  search  or similar comparison, the court may, upon motion of a
    12  defendant  against  whom  an  indictment,  superior  court  information,
    13  prosecutor's  information,  information,  or  simplified  information is
    14  pending, order an entity that has  access  to  the  combined  DNA  index
    15  system  or  its successor system to compare such DNA profile against DNA
    16  databanks   by keyboard searches, or a  similar  method  that  does  not
    17  involve  uploading,  upon notice to both parties and the entity required
    18  to perform the search, upon a showing  by  the  defendant  that  such  a
    19  comparison  is  material  to  the presentation of his or her defense and
    20  that the request is  reasonable.    For  purposes  of  this  section,  a
    21  "keyboard  search"  shall  mean  a  search of a DNA profile against  the
    22  databank in which the profile that is searched is  not  uploaded  to  or
    23  maintained in the  databank.
    24  § 245.50 Certificates of compliance; readiness for trial.
    25    1. By the prosecution. When the prosecution has provided the discovery
    26  required  by  subdivision  one of section 245.20 of this article, except
    27  for any items or information that are the subject of an  order  pursuant
    28  to section 245.70 of this article, it shall serve upon the defendant and
    29  file  with  the  court  a  certificate of compliance. The certificate of
    30  compliance shall state that, after exercising due diligence  and  making
    31  reasonable  inquiries to ascertain the existence of material  and infor-
    32  mation subject to discovery,  the  prosecutor  has  disclosed  and  made
    33  available  all  known  material and information subject to discovery. It
    34  shall also identify the  items  provided.  If  additional  discovery  is
    35  subsequently  provided prior to trial pursuant to section 245.60 of this
    36  article, a supplemental certificate shall be served upon  the  defendant
    37  and filed with the court  identifying the additional material and infor-
    38  mation provided. No adverse consequence to the prosecution or the prose-
    39  cutor  shall  result  from  the filing of a certificate of compliance in
    40  good  faith; but the court may grant a remedy or sanction for a  discov-
    41  ery violation as provided in section 245.80 of this article.
    42    2.  By  the  defendant.  When the defendant has provided all discovery
    43  required by subdivision four of section 245.20 of this  article,  except
    44  for  any  items or information that are the subject of an order pursuant
    45  to section 245.70 of this article, counsel for the defendant shall serve
    46  upon the prosecution and file with the court a  certificate  of  compli-
    47  ance.   The certificate shall state that, after exercising due diligence
    48  and making reasonable inquiries to ascertain the existence  of  material
    49  and  information  subject  to  discovery,  counsel for the defendant has
    50  disclosed and made available all known material and information  subject
    51  to  discovery.  It shall also identify the items provided. If additional
    52  discovery is subsequently provided prior to trial  pursuant  to  section
    53  245.60  of this article, a supplemental certificate shall be served upon
    54  the prosecution and filed   with the court  identifying  the  additional
    55  material  and  information  provided.  No  adverse    consequence to the
    56  defendant or counsel for the defendant shall result from the filing of a
        S. 1716                            12                            A. 1431
 
     1  certificate of compliance in good faith; but the court may grant a reme-
     2  dy or sanction for a discovery violation as provided in  section  245.80
     3  of this article.
     4    3.  Trial  readiness. Notwithstanding the provisions of any other law,
     5  absent an individualized finding of  exceptional  circumstances  by  the
     6  court  before  which the charge is pending, the prosecution shall not be
     7  deemed ready for trial for purposes of section  30.30  of  this  chapter
     8  until  it  has filed a proper certificate pursuant to subdivision one of
     9  this section.
    10  § 245.55 Flow of information.
    11    1. Sufficient communication for compliance. The district attorney  and
    12  the  assistant  responsible for the case, or, if the matter is not being
    13  prosecuted by the district attorney,  the  prosecuting  agency  and  its
    14  assigned  representative, shall endeavor to ensure that a flow of infor-
    15  mation is maintained between the police and other investigative  person-
    16  nel  and  his  or  her  office  sufficient  to  place  within his or her
    17  possession or control all material  and  information  pertinent  to  the
    18  defendant and the offense or offenses charged, including, but not limit-
    19  ed  to,  any evidence or information discoverable under paragraph (k) of
    20  subdivision one of section 245.20 of this article.
    21    2. Provision of law enforcement agency files. Absent a court order  or
    22  a  requirement that defense counsel obtain a security clearance mandated
    23  by law or authorized government regulation, upon request by  the  prose-
    24  cution,  each New York state and local law enforcement agency shall make
    25  available to the prosecution a complete copy of its complete records and
    26  files related to the investigation of the case or the prosecution of the
    27  defendant for compliance with this article.
    28    3.  911  telephone  call  and  police  radio  transmission  electronic
    29  recordings,   police  worn  body  camera  recordings  and  other  police
    30  recordings.  (a) Whenever an electronic recording  of  a  911  telephone
    31  call  or  a  police  radio transmission or video or audio footage from a
    32  police body-worn camera or other police recording was made  or  received
    33  in   connection with the investigation of an apparent criminal incident,
    34  the arresting officer or lead  detective shall expeditiously notify  the
    35  prosecution  in  writing  upon the filing of an accusatory instrument of
    36  the existence of all such known recordings. The prosecution shall  expe-
    37  ditiously  take  whatever  reasonable steps are necessary to ensure that
    38  all known electronic recordings of 911  telephone  calls,  police  radio
    39  transmissions  and  video  and audio footage and other police recordings
    40  made or available in connection with the case are   preserved. Upon  the
    41  defendant's  timely  request  and  designation  of a specific electronic
    42  recording of a 911 telephone call, the prosecution  shall  also    expe-
    43  ditiously take whatever reasonable steps are necessary to ensure that it
    44  is preserved.
    45    (b)  If the prosecution fails to disclose such an electronic recording
    46  to the defendant pursuant to paragraph (e), (g) or  (k)  of  subdivision
    47  one  of  section  245.20 of this article due to a failure to comply with
    48  this obligation by police officers or other law  enforcement  or  prose-
    49  cution personnel, the court upon motion of the defendant shall impose an
    50  appropriate  remedy or sanction pursuant to section 245.80 of this arti-
    51  cle.
    52  § 245.60 Continuing duty to disclose.
    53    If either the prosecution or  the  defendant  subsequently  learns  of
    54  additional material or information which it would have been under a duty
    55  to  disclose  pursuant to any provisions of this article had it known of
    56  it at the time of a previous discovery obligation or discovery order, it
        S. 1716                            13                            A. 1431

     1  shall expeditiously notify the other party and disclose  the  additional
     2  material  and  information  as required for initial discovery under this
     3  article. This section also requires expeditious disclosure by the prose-
     4  cution  of  material  or information that became relevant to the case or
     5  discoverable based on reciprocal discovery received from  the  defendant
     6  pursuant to subdivision four of section 245.20 of this article.
     7  § 245.65 Work product.
     8    This article does not authorize discovery by a party of those portions
     9  of records, reports, correspondence, memoranda, or internal documents of
    10  the  adverse party which are only the legal research, opinions, theories
    11  or conclusions of the adverse party or its attorney  or  the  attorney's
    12  agents,  or  of statements of a defendant, written or recorded or summa-
    13  rized in any writing or recording, made to the attorney for the  defend-
    14  ant or the attorney's agents.
    15  § 245.70 Protective orders.
    16    1.  Any  discovery subject to protective order. Upon a showing of good
    17  cause by either party, the court may at any time order that discovery or
    18  inspection of any kind of material or information under this article  be
    19  denied, restricted, conditioned or deferred, or make such other order as
    20  is  appropriate.  The  court may impose as a condition on discovery to a
    21  defendant that the material or information to be discovered be available
    22  only to counsel for the defendant; or,  alternatively, that counsel  for
    23  the  defendant, and persons employed by the attorney or appointed by the
    24  court to assist in the  preparation  of  a  defendant's  case,  may  not
    25  disclose physical copies of the discoverable documents to a defendant or
    26  to  anyone  else,  provided  that  the prosecution affords the defendant
    27  access to inspect redacted copies of the  discoverable  documents  at  a
    28  supervised  location that provides regular and reasonable hours for such
    29  access, such as a  prosecutor's  office,  police  station,  facility  of
    30  detention, or court. The court may permit a party  seeking or opposing a
    31  protective  order  under  this  section,  or another affected person, to
    32  submit papers or testify on the record ex parte or in camera.  Any  such
    33  papers  and  a  transcript  of  such  testimony  may be sealed and shall
    34  constitute a part of the record on appeal. This section does not   alter
    35  the  allocation  of the burden of proof with regard to matters at issue,
    36  including privilege.
    37    2. Modification of time periods for discovery. Upon motion of a  party
    38  in an individual  case, the court may alter the time periods for discov-
    39  ery imposed by this article upon a showing of good cause.
    40    3.  Prompt  hearing.  Upon  request  for a protective order, the court
    41  shall conduct an appropriate  hearing  within  three  business  days  to
    42  determine  whether  good cause has been shown and when practicable shall
    43  render decision expeditiously. Any materials submitted and a  transcript
    44  of  the  proceeding  may  be  sealed  and shall constitute a part of the
    45  record on appeal.
    46    4. Showing of good cause. Good cause under this section  may  include:
    47  constitutional   rights or limitations; danger to the integrity of phys-
    48  ical evidence; a substantial  risk  of  physical    harm,  intimidation,
    49  economic  reprisal,  bribery  or harassment to any person; a substantial
    50  risk of an adverse effect upon the legitimate needs of law  enforcement,
    51  including the protection of the confidentiality of informants; danger to
    52  any  person  stemming  from  factors such as a defendant's substantiated
    53  affiliation with a gang engaged in criminal activity, prior  history  of
    54  interfering  with witnesses, or threats or intimidating actions directed
    55  at potential witnesses; or other similar factors that also  outweigh the
    56  usefulness of the discovery.
        S. 1716                            14                            A. 1431
 
     1    5. Successor counsel or pro se defendant. In cases in which the attor-
     2  ney-client  relationship is terminated prior to trial  for  any  reason,
     3  any material or information disclosed  subject to a condition that it be
     4  available only to counsel for the defendant, or limited in dissemination
     5  by  protective  order  or otherwise, shall be provided only to successor
     6  counsel for the defendant under the same condition or conditions  or  be
     7  returned  to  the prosecution, unless the court rules otherwise for good
     8  cause shown or the prosecutor gives written consent.  Any  work  product
     9  derived  from  such material or information shall not be provided to the
    10  defendant, unless the court rules  otherwise  or  the  prosecutor  gives
    11  written consent. If the defendant is acting as his  or her own attorney,
    12  the  court  may  regulate  the  time,  place and manner of access to any
    13  discoverable material or information; and it may as appropriate  appoint
    14  persons  to  assist the defendant in the investigation or preparation of
    15  the case. Upon motion or application of a defendant acting as his or her
    16  own attorney, the court may at any time modify or vacate  any  condition
    17  or  restriction  relating to access to discoverable material or informa-
    18  tion, for good cause  shown.
    19    6. Expedited review of adverse ruling. (a) A party that has unsuccess-
    20  fully sought, or unsuccessfully opposed the granting  of,  a  protective
    21  order under this section relating to the name, address, contact informa-
    22  tion  or  statements  of  a  person  may obtain expedited review of that
    23  ruling by an individual justice of the intermediate appellate  court  to
    24  which  an  appeal  from  a  judgment  of conviction in the case would be
    25  taken.
    26    (b) Such review shall be  sought  within  two  business  days  of  the
    27  adverse  or  partially adverse ruling, by order to show cause filed with
    28  the intermediate appellate court. The order to show cause shall in addi-
    29  tion be timely served on the lower court and on the opposing party,  and
    30  shall  be  accompanied  by a sworn affirmation stating in good faith (i)
    31  that the ruling affects  substantial interests, and (ii)  that  diligent
    32  efforts  to  reach  an accommodation of the underlying discovery dispute
    33  with opposing counsel failed or  that  no  accommodation  was  feasible;
    34  except  that  service  on  the opposing party, and a statement regarding
    35  efforts to reach an accommodation, are unnecessary  where  the  opposing
    36  party  was  not made aware of the application for a protective order and
    37  good cause is shown for omitting service of the order to show  cause  on
    38  the  opposing  party. The lower court's order subject to review shall be
    39  stayed until the appellate justice renders a determination.
    40    (c) The assignment of the individual appellate justice, and  the  mode
    41  of  and  procedure  for  the review, shall be determined by rules of the
    42  individual appellate courts. The  appellate  justice  may  consider  any
    43  relevant and reliable information bearing on the issue, and may dispense
    44  with  written briefs other than supporting and opposing materials previ-
    45  ously  submitted  to the lower court. The appellate justice may dispense
    46  with the issuance of a written opinion in rendering his or her decision,
    47  and when practicable shall render decision and order expeditiously. Such
    48  review, decision and order shall not affect the right of a defendant, in
    49  a subsequent appeal from a judgment of conviction, to claim as error the
    50  ruling reviewed.
    51    7. Compliance with protective order. Any protective order issued under
    52  this article is a mandate of the court for purposes of  the  offense  of
    53  criminal  contempt  in  subdivision three of section 215.50 of the penal
    54  law.
    55  § 245.75 Waiver of discovery by defendant.
        S. 1716                            15                            A. 1431
 
     1    A defendant who does not seek discovery  from  the  prosecution  under
     2  this  article  shall  so    notify  the prosecution and the court at the
     3  defendant's arraignment on an indictment,  superior  court  information,
     4  prosecutor's  information,  information,  or  simplified information, or
     5  expeditiously  thereafter but before receiving discovery from the prose-
     6  cution pursuant to  subdivision one of section 245.20 of  this  article,
     7  and the defendant need not provide discovery to the prosecution pursuant
     8  to  subdivision  four of section 245.20 and section 245.60 of this arti-
     9  cle. A waiver shall be in writing, signed for  the  individual  case  by
    10  counsel  for the defendant and filed with the court. Such a  waiver does
    11  not alter or in any way affect the procedures, obligations or rights set
    12  forth in sections 250.10, 250.20 and 250.30 of this title, or  otherwise
    13  established  or  required  by  law.  The prosecution may not condition a
    14  guilty plea offer on the defense's execution  of  a  waiver  under  this
    15  section.
    16  § 245.80 Remedies or sanctions for non-compliance.
    17    1.  Need  for  remedy or sanction. (a) When material or information is
    18  discoverable under this article but is disclosed  belatedly,  the  court
    19  shall  impose an appropriate remedy or sanction if the party entitled to
    20  disclosure shows that it was prejudiced.  Regardless  of  a  showing  of
    21  prejudice  the  party  entitled  to disclosure shall be given reasonable
    22  time to prepare and respond to the new material.
    23    (b) When material or information is discoverable  under  this  article
    24  but cannot be disclosed because it has been lost or destroyed, the court
    25  shall  impose an appropriate remedy or sanction if the party entitled to
    26  disclosure shows that the lost or destroyed material may have  contained
    27  some  information  relevant to a contested issue. The appropriate remedy
    28  or sanction is  that which is proportionate to  the  potential  ways  in
    29  which the lost or destroyed material  reasonably could have been helpful
    30  to the party entitled to disclosure.
    31    2.  Available  remedies  or  sanctions. For failure to comply with any
    32  discovery order imposed or issued pursuant to this  article,  the  court
    33  may  make a further order for discovery, grant a continuance, order that
    34  a hearing be reopened, order that  a  witness  be  called  or  recalled,
    35  instruct  the  jury  that it may draw an adverse inference regarding the
    36  non-compliance, preclude or strike a witness's testimony or a portion of
    37  a witness's testimony, admit or exclude evidence,    order  a  mistrial,
    38  order  the  dismissal  of all or some of the charges, or make such other
    39  order as it deems just under the circumstances; except that any sanction
    40  against the defendant shall comport with the defendant's  constitutional
    41  right  to  present  a  defense,  and precluding a defense witness   from
    42  testifying shall be permissible only upon a finding that the defendant's
    43  failure to comply  with the discovery obligation or  order  was  willful
    44  and motivated by a desire to obtain a tactical  advantage.
    45    3.  Consequences  of  non-disclosure of statement of testifying prose-
    46  cution witness. The failure of the prosecutor or any agent of the prose-
    47  cutor to disclose any written or recorded statement  made  by  a  prose-
    48  cution  witness  which  relates  to  the subject matter of the witness's
    49  testimony shall not constitute grounds for any  court  to  order  a  new
    50  pre-trial  hearing  or  set  aside  a  conviction, or reverse, modify or
    51  vacate a judgment of conviction, in the absence  of  a  showing  by  the
    52  defendant that there is a reasonable possibility that the non-disclosure
    53  materially  contributed  to the result of the trial or other proceeding;
    54  provided, however, that nothing in this  section shall affect  or  limit
    55  any  right  the  defendant may have to a reopened pre-trial hearing when
    56  such statements were disclosed before the close of evidence at trial.
        S. 1716                            16                            A. 1431
 
     1  § 245.85 Admissibility of discovery.
     2    The  fact  that  a party has indicated during the discovery process an
     3  intention to offer specified evidence or to call a specified witness  is
     4  not  admissible  in evidence or grounds for adverse comment at a hearing
     5  or a trial.
     6  § 245.90 Depositions.
     7    1. At any time after arraignment on a felony complaint, an  indictment
     8  or  a  superior  court  information charging a felony, upon service of a
     9  subpoena issued for purposes of this section by the court, the  prosecu-
    10  tor  or  the attorney for the defendant in a manner otherwise consistent
    11  with section 610.20 of this chapter, either party may obtain the deposi-
    12  tion on oral examination of any person who:  (a) at the time of  one  or
    13  more  relevant  events, was a police or law enforcement officer or other
    14  government employee and whose testimony would be relevant to the subject
    15  matter of the case provided,  however,  that  the  prosecution  may  not
    16  depose  a defendant, and the defendant may not depose such an officer or
    17  employee with respect to a charge in which such officer or  employee  is
    18  the  alleged victim; or (b) is an expert identified in discovery, or who
    19  worked on the case on behalf of the prosecution, or whom a party intends
    20  to call to testify.
    21    2. Each officer, employee or expert may be deposed under this  section
    22  only once in such case by a defendant or the prosecution, absent a court
    23  order permitting a successive deposition for good cause shown.
    24    3.  Deposition  of  a  person under this section shall be taken in the
    25  county where the person lives or works, or in another location agreed to
    26  by the parties, or at a location designated by order  of  the  judge  or
    27  justice assigned to the case. The deposition of any person confined in a
    28  correctional  facility  or  local  correctional  facility shall be taken
    29  where the person is confined, unless otherwise ordered by the court.
    30    4. Counsel for all parties shall be permitted to be present at a depo-
    31  sition. The defendant and any co-defendant shall not be physically pres-
    32  ent at a deposition under  this  section  except  by  agreement  of  the
    33  parties,  or  a  court  order  granted on a showing of good cause by the
    34  defendant or any co-defendant.  The party setting the  deposition  shall
    35  give reasonable notice of the deposition in writing to the witness to be
    36  deposed  and to counsel for all parties and co-defendants. The attorneys
    37  for the defendant and any co-defendants shall  seek  to  coordinate  any
    38  depositions to avoid multiple depositions of a single witness; any party
    39  that  asserts  multiple depositions of a single witness are being sched-
    40  uled for a prohibited purpose may seek a protective  order  pursuant  to
    41  section 245.70 of this article.
    42    5.  Either  party may discover by deposition the facts and opinions to
    43  which such an expert is expected to testify. Unless  manifest  injustice
    44  would  result,  the court shall require that the party seeking discovery
    45  pay the expert a reasonable hourly fee for travel time and the time  the
    46  expert is deposed.
    47    §  3. Subdivision 3 of section 610.20 of the criminal procedure law is
    48  amended and a new subdivision 4 is added to read as follows:
    49    3.  An attorney for a defendant in a criminal action or proceeding, as
    50  an officer of a criminal court, may issue  a  subpoena  of  such  court,
    51  subscribed  by  himself, for the attendance in such court of any witness
    52  whom the defendant is entitled to call in such action or proceeding.  An
    53  attorney for a defendant may not issue a subpoena  duces  tecum  of  the
    54  court  directed to any department, bureau or agency of the state or of a
    55  political subdivision thereof, or to any officer or representative ther-
    56  eof, unless the subpoena is indorsed by the court and provides at  least
        S. 1716                            17                            A. 1431
 
     1  three days for the production of the requested materials. In the case of
     2  an  emergency,  the  court  may  by  order  dispense  with the three-day
     3  production period. [Such a subpoena duces tecum may be issued in  behalf
     4  of a defendant upon order of a court pursuant to the rules applicable to
     5  civil  cases  as  provided  in section twenty-three hundred seven of the
     6  civil practice law and rules.]
     7    4. The showing required to sustain any subpoena under this section  is
     8  that  the  testimony or evidence sought is reasonably likely to be rele-
     9  vant and material to the  proceedings, and the subpoena is not overbroad
    10  or unreasonably burdensome.
    11    § 4. Subdivision 9 of section 65.20 of the criminal procedure law,  as
    12  added  by  chapter  505 of the laws of 1985 and as renumbered by chapter
    13  548 of the laws of 2007, is amended to read as follows:
    14    9. (a) Prior to the commencement of the hearing conducted pursuant  to
    15  subdivision  [five]  six  of  this section, the district attorney shall,
    16  subject to a protective order, comply with the provisions of subdivision
    17  one of section [240.45] 245.20 of  this  chapter  as  they  concern  any
    18  witness  whom  the  district attorney intends to call at the hearing and
    19  the child witness.
    20    (b) Before a defendant calls a witness at  such  hearing,  he  or  she
    21  must,  subject  to  a  protective  order,  comply with the provisions of
    22  subdivision [two] four of section [240.45] 245.20  of  this  chapter  as
    23  they  concern  all  the  witnesses the defendant intends to call at such
    24  hearing.
    25    § 5. Subdivision 5 of section 200.95 of the criminal procedure law, as
    26  added by chapter 558 of the laws of 1982, is amended to read as follows:
    27    5. Court ordered bill of particulars.  Where a prosecutor  has  timely
    28  served  a  written  refusal pursuant to subdivision four of this section
    29  and upon motion, made in writing, of a defendant, who has made a request
    30  for a bill of particulars and whose request has not been  complied  with
    31  in whole or in part, the court must, to the extent a protective order is
    32  not  warranted, order the prosecutor to comply with the request if it is
    33  satisfied that the items of factual information requested are authorized
    34  to be included in a bill of particulars, and that  such  information  is
    35  necessary  to  enable the defendant adequately to prepare or conduct his
    36  defense and, if the request was untimely, a finding of  good  cause  for
    37  the  delay.  Where  a prosecutor has not timely served a written refusal
    38  pursuant to subdivision four of this section the court must,  unless  it
    39  is  satisfied  that  the  people have shown good cause why such an order
    40  should not be issued, issue an order requiring the prosecutor to  comply
    41  or  providing  for  any  other  order  authorized by [subdivision one of
    42  section 240.70] section 245.80 of this part.
    43    § 6. Paragraph (c) of subdivision 1 of section 255.10 of the  criminal
    44  procedure  law,  as added by chapter 763 of the laws of 1974, is amended
    45  to read as follows:
    46    (c)  granting discovery pursuant to article [240] 245; or
    47    § 7. Subdivision 1 of section 255.20 of the criminal procedure law, as
    48  amended by chapter 369 of the laws  of  1982,  is  amended  to  read  as
    49  follows:
    50    1.  Except as otherwise expressly provided by law, whether the defend-
    51  ant is represented by counsel or elects to proceed pro se, all pre-trial
    52  motions shall be served or filed within forty-five days  after  arraign-
    53  ment and before commencement of trial, or within such additional time as
    54  the  court may fix upon application of the defendant made prior to entry
    55  of judgment. In an action in which either (a)  material  or  information
    56  has  been  disclosed pursuant to paragraph (m) or (n) of subdivision one
        S. 1716                            18                            A. 1431
 
     1  of section 245.20 of this title, (b) an eavesdropping warrant and appli-
     2  cation have been furnished pursuant to section 700.70 of  this  chapter,
     3  or  (c)  a  notice  of  intention  to introduce evidence has been served
     4  pursuant  to  section  710.30  of  this  chapter,  such  period shall be
     5  extended until forty-five days after the last date of such service.   If
     6  the  defendant  is  not  represented  by  counsel  and  has requested an
     7  adjournment to obtain counsel or to have counsel assigned,  such  forty-
     8  five  day period shall commence on the date counsel initially appears on
     9  defendant's behalf.
    10    § 8. Section 340.30 of the criminal procedure law is amended  to  read
    11  as follows:
    12  § 340.30 Pre-trial discovery and notices of defenses.
    13    The provisions of article two hundred [forty] forty-five of this part,
    14  concerning  pre-trial  discovery  by  a  defendant under indictment in a
    15  superior court, and article two hundred fifty of this  part,  concerning
    16  pre-trial  notice  to  the  people  by a defendant under indictment in a
    17  superior court who intends to advance a trial defense of mental  disease
    18  or  defect  or  of  alibi, apply to a prosecution of an information in a
    19  local criminal court.
    20    § 9. Subdivision 14 of section 400.27 of the criminal  procedure  law,
    21  as  added  by  chapter  1  of  the  laws  of 1995, is amended to read as
    22  follows:
    23    14. (a) At a reasonable time prior to the sentencing proceeding  or  a
    24  mental retardation hearing:
    25    (i) the prosecutor shall, unless previously disclosed and subject to a
    26  protective  order,  make  available  to the defendant the statements and
    27  information specified in subdivision one of section [240.45]  245.20  of
    28  this  part  and make available for inspection, photographing, copying or
    29  testing the property specified in subdivision one  of  section  [240.20]
    30  245.20; and
    31    (ii) the defendant shall, unless previously disclosed and subject to a
    32  protective  order,  make available to the prosecution the statements and
    33  information specified in subdivision  [two]  four  of  section  [240.45]
    34  245.20  and  make  available  for  inspection, photographing, copying or
    35  testing, subject to constitutional limitations, the  reports,  documents
    36  and  other  property specified [in subdivision one of section 240.30] in
    37  section 245.20 of this part.
    38    (b) Where a party refuses to make disclosure pursuant to this section,
    39  the provisions of section [240.35, subdivision one of section 240.40 and
    40  section 240.50] 245.70, 245.75 and/or 245.80 of this part shall apply.
    41    (c) If, after complying with the provisions  of  this  section  or  an
    42  order pursuant thereto, a party finds either before or during a sentenc-
    43  ing  proceeding  or  mental  retardation  hearing,  additional  material
    44  subject to discovery or covered by court order, the party shall promptly
    45  make disclosure or apply for a protective order.
    46    (d) If the court finds that a party has failed to comply with  any  of
    47  the  provisions of this section, the court may [enter] employ any of the
    48  [orders] remedies or sanctions specified in subdivision one  of  section
    49  [240.70] 245.80 of this part.
    50    §  10.  The  opening  paragraph  of  paragraph (b) of subdivision 1 of
    51  section 440.30 of the criminal procedure law, as added by chapter 19  of
    52  the laws of 2012, is amended to read as follows:
    53    In  conjunction with the filing or consideration of a motion to vacate
    54  a judgment pursuant to section 440.10 of this  article  by  a  defendant
    55  convicted after a trial, in cases where the court has ordered an eviden-
    56  tiary  hearing  upon  such  motion,  the court may order that the people
        S. 1716                            19                            A. 1431

     1  produce or make available for inspection property[, as defined in subdi-
     2  vision three of section 240.10 of this part,] in its possession,  custo-
     3  dy,  or control that was secured in connection with the investigation or
     4  prosecution  of the defendant upon credible allegations by the defendant
     5  and a finding by the court that such property,  if  obtained,  would  be
     6  probative to the determination of defendant's actual innocence, and that
     7  the  request is reasonable. The court shall deny or limit such a request
     8  upon a finding that such a  request,  if  granted,  would  threaten  the
     9  integrity  or chain of custody of property or the integrity of the proc-
    10  esses or functions of a laboratory conducting DNA testing, pose  a  risk
    11  of  harm,  intimidation, embarrassment, reprisal, or other substantially
    12  negative consequences to any person, undermine the proper  functions  of
    13  law  enforcement  including the confidentiality of informants, or on the
    14  basis of any other factor identified by the court in  the  interests  of
    15  justice  or public safety. The court shall further ensure that any prop-
    16  erty produced pursuant to this paragraph  is  subject  to  a  protective
    17  order, where appropriate. The court shall deny any request made pursuant
    18  to this paragraph where:
    19    §  11.  Subdivision 10 of section 450.10 of the penal law, as added by
    20  chapter 795 of the laws of 1984, is amended to read as follows:
    21    10. Where there has been a failure to comply with  the  provisions  of
    22  this  section,  and  where the district attorney does not demonstrate to
    23  the satisfaction of the court that  such  failure  has  not  caused  the
    24  defendant  prejudice,  the  court  shall  instruct  the jury that it may
    25  consider such failure  in  determining  the  weight  to  be  given  such
    26  evidence and may also impose any other sanction set forth in subdivision
    27  one  of section [240.70] 245.80 of the criminal procedure law; provided,
    28  however, that unless the defendant has convinced  the  court  that  such
    29  failure has caused him undue prejudice, the court shall not preclude the
    30  district  attorney  from  introducing into evidence the property, photo-
    31  graphs, photocopies, or other reproductions of the  property  or,  where
    32  appropriate,  testimony  concerning  its value and condition, where such
    33  evidence is otherwise properly authenticated and  admissible  under  the
    34  rules  of  evidence.  Failure  to  comply  with  any  one or more of the
    35  provisions of this section shall not for that reason  alone  be  grounds
    36  for dismissal of the accusatory instrument.
    37    §  12. Section 460.80 of the penal law, as added by chapter 516 of the
    38  laws of 1986, is amended to read as follows:
    39  § 460.80 Court ordered disclosure.
    40    Notwithstanding the provisions of article two hundred  [forty]  forty-
    41  five  of  the criminal procedure law, when forfeiture is sought pursuant
    42  to section 460.30 of this [chapter] article, the court may order discov-
    43  ery of any property  not  otherwise  disclosed  which  is  material  and
    44  reasonably  necessary  for  preparation by the defendant with respect to
    45  the forfeiture proceeding pursuant to such section. The court may  issue
    46  a protective order denying, limiting, conditioning, delaying or regulat-
    47  ing  such discovery where a danger to the integrity of physical evidence
    48  or a substantial risk of physical harm, intimidation, economic reprisal,
    49  bribery or unjustified annoyance or embarrassment to any  person  or  an
    50  adverse  effect  upon the legitimate needs of law enforcement, including
    51  the protection of the confidentiality of informants, or any other factor
    52  or set of factors outweighs the usefulness of the discovery.
    53    § 13. Subdivision 5 of section 480.10 of the penal law,  as  added  by
    54  chapter 655 of the laws of 1990, is amended to read as follows:
    55    5.  In  addition  to  information required to be disclosed pursuant to
    56  article two hundred [forty] forty-five of the  criminal  procedure  law,
        S. 1716                            20                            A. 1431
 
     1  when  forfeiture  is  sought pursuant to this article, and following the
     2  defendant's arraignment on the special forfeiture information, the court
     3  shall order discovery of any information not otherwise  disclosed  which
     4  is  material  and  reasonably necessary for preparation by the defendant
     5  with respect to a forfeiture proceeding brought pursuant to  this  arti-
     6  cle.  Such  material  shall  include  those  portions  of the grand jury
     7  minutes and such other information which pertain solely to  the  special
     8  forfeiture  information and shall not include information which pertains
     9  to the criminal charges. Upon application of the prosecutor,  the  court
    10  may  issue a protective order pursuant to section [240.40] 245.70 of the
    11  criminal procedure law with respect to any information  required  to  be
    12  disclosed pursuant to this subdivision.
    13    §  14.  This act shall take effect on the ninetieth day after it shall
    14  have become a law; provided, however, the amendments to section 65.20 of
    15  the criminal procedure law made by section four of this  act  shall  not
    16  affect  the  repeal  of such section and shall be deemed repealed there-
    17  with.

The interesting criminal conviction, and automatic disbarment, of New York City criminal defense attorney #BenjaminYu. Part I. The selectively blind justice - blind literally, as to the law and evidence.


Here is the decision of the Appellate Division 1st Judicial Department, of October 26, 2017, disbarring New York City criminal defense attorney Benjamin Yu:


"On May 31, 2016, in Supreme Court, New York County, respondent was convicted, after a jury trial, of 
  • conspiracy in the fourth degree (Penal Law § 105.10[1]), a class E felony; 
  • two counts of bribery in the second degree (Penal Law § 200.03), a class C felony; and 
  • 13 counts of rewarding official misconduct in the second degree (Penal Law § 200.20), a class E felony. 
Respondent's conviction stemmed from his paying an employee of the New York City Criminal Justice Agency to persuade criminal defendants to retain respondent as their attorney. On August 17, 2016, respondent was sentenced to 3 to 9 years in prison; he remains free on bail pending appeal."

Judges who authorized the disbarment are:

Karla Moskowitz, Justice Presiding,
Paul G. Feinman
Judith J. Gische
Barbara R. Kapnick

Ellen Gesmer, Justices. 

Since then, Paul Feinman, "the first openly gain judge" in the 1st Department (the 3rd Department outdid the 1st - there, the Governor made "the first openly gay female judge" the presiding justice of the court in 2018), since then was promoted by Governor Cuomo to the New York State Court of Appeals - where he will now be reviewing an appeal from his masterpiece of stupidity and dishonesty.

I will review backgrounds of all participants who brought about this disgraceful wrongful conviction and wrongful disbarment of a much-needed criminal defense attorney in New York City in a separate blog article.

On December 20, 2018, more than a year after that same court decided to disbar attorney Benjamin Yu, BEFORE hearing his appeal, the same court - predictably, not to admit its own illegal conduct in disbarring an attorney framed into a wrongful conviction by his opponent in litigation, prosecutor Cyrus R. Vance, Jr., AFFIRMED his conviction, in this decision:

"

People v Yu

Annotate this Case
People v Yu 2018 NY Slip Op 08754 Decided on December 20, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2018
Richter, J.P., Manzanet-Daniels, Tom, Gesmer, Kern, JJ.
3874/14 -5424 7915 7516

[*1] The People of the State of New York, Respondent,

v

Benjamin Yu, Defendant-Appellant.



The People of the State of New York, Respondent,

v

Jose Nunez, Defendant-Appellant.


Patrick J. Brackley, New York, for Benjamin Yu, appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for Jose Nunez, appellant.
Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.


Judgments, Supreme Court, New York County (James M. Burke, J.), rendered August 17, 2016, convicting each defendant of bribery in the second degree (2 counts), conspiracy in the fourth degree and rewarding official misconduct in the second degree (13 counts), and sentencing each defendant to an aggregate term of three to nine years, unanimously affirmed. The matter is remitted to Supreme Court for further proceedings as to both defendants pursuant to CPL 460.50(5).
Defendants Yu and Nunez, an attorney and paralegal respectively, were convicted of bribing an employee of the Criminal Justice Agency (CJA) to refer arrestees as potential clients. The principal issues on appeal arise out of the fact that CJA employees, who interview arrestees regarding their suitability for pretrial release, are not City employees, but employees of a City-funded nonprofit agency. Thus, under the bribery statutes, the CJA employee was not a "public servant" under Penal Law § 10.00(15)(a), which is limited to public employees, and the parties disagree about whether he qualified as a public servant under § 10.00(15)(b), as a "person exercising the functions of any such public officer or employee."
There was no impermissible variance between the trial evidence and the indictment. At trial, the People proceeded on the theory that the CJA employee was a public servant under the "exercising" theory set forth in § 10.00(15)(b), and the court charged the jury accordingly. Both the "public employee" and "exercising" theories had been submitted to the grand jury, and the indictment was compatible with both theories, except for some language in the narrative portion of the conspiracy count relating to the employee's status, which the court modified. To the extent the court amended the indictment, the amendment satisfied the requirements of CPL 200.70. Defendants were not prejudiced, because they received notice long before trial that the People's theory would be that the employee was a public servant under the "exercising" theory. To the extent that defendants are arguing that the evidence before the grand jury was insufficient to support that theory, that claim is unreviewable (CPL 210.30[6]).
The verdict was based on legally sufficient evidence and was not against the weight of the [*2]evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Testimonial and documentary evidence established that the CJA employee was a public servant under § 10.00(15)(b) because he exercised the functions of a public employee in interviewing arrestees and making recommendations to arraignment judges whether to release the arrestees on their own recognizance. Evidence was presented that CJA is wholly funded by the City, and receipt of such public funds is a relevant factor in the determination (see People v Kruger, 87 AD2d 473, 475-76 [2d Dept 1982]). CJA performs a function previously performed by the Probation Department in New York City, and still performed by the Probation Department in counties outside of the City. In addition, CJA recommendations facilitate an important government interest, namely, regulating pretrial incarceration (Matter of Bernard T., 250 AD2d 532 [1st Dept 1998], lv denied 92 NY2d 808 [1998]; Kruger, 87 AD2d at 475).
The evidence also sufficiently established that defendants sought to influence the CJA employee with respect to his "vote, opinion, judgment, action, decision, or exercise of discretion as a public servant," as required to convict them of bribery in the second degree (Penal Law § 200.03). Although the bribe was not offered to influence bail recommendations, which was the employee's primary responsibility, it was offered to influence the employee to interview and screen arrestees so as to identify those who could afford private counsel, to make false and misleading statements to the arrestees, and to make improper referrals. The employee's actions violated CJA's prohibition against private attorney referrals, and violated its general policy that its employees maintain neutrality. He also took advantage of his position and access to information within the CJA. Thus, at the very least, the employee's "action" as a public servant was influenced (Penal Law § 200.03).
Although the court's jury charge defining the term public servant contained some overly broad language, the court also read the statutory definition, and the charge, when viewed as a whole, conveyed the proper definition (see generally People v Fields, 87 NY2d 821 [1995]). In any event, any error was harmless (see People v Crimmins, 36 NY2d 230 [1975).
Defendant Yu's remaining contentions are unpreserved and we decline to review them in interest of justice. As an alternative holding, we reject those arguments on the merits. Yu's ineffective assistance of counsel claims relating to these unpreserved issues are generally unreviewable because Yu has not made a CPL 440.10 motion. In the alternative, to the extent the existing record permits review, we find that Yu received effective assistance under the state and federal standards
(see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).
We have considered and rejected defendant Nunez's excessive
sentence claim.
M-5424 - People v Benjamin Yu
Motion to adopt defendant Nunez's arguments granted.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 20, 2018
CLERK"

Compare the disbarment panel in October of 2017 and the appeal panel in the December of 2018:






Disbarment (earlier) panel:

Karla Moskowitz, Justice Presiding,
Paul G. Feinman
Judith J. Gische
Barbara R. Kapnick

Ellen Gesmer, Justices. 

Appellate (later) panel:

Richter, J.P., 
Manzanet-Daniels, 
Tom, 
Gesmer, 
Kern, JJ.

Ellen Gesmer was present on both panels and rubber-stamped, in December of 2018, her disbarment decision of 2017 - otherwise she would have had to agree that she not just erred, but incompetently and dishonestly "erred".

Remember - a "harmless error" of giving the jury the "overly broad definition" of what is a "public servant"?

Ok, now let's go to the definitions of the criminal statutes which were used to convict criminal defense attorney Benjamin Yu.


"S 105.10 Conspiracy in the fourth degree.
  A person is guilty of conspiracy in the fourth degree when, with
intent that conduct constituting:
  1. a class B or class C felony be performed
, he or she agrees with one
or more persons to engage in or cause the performance of such conduct
".
So, this is not an independent criminal charge, it is an add-on requiring that a valid charge for a B or C felony be also made against the defendant - and brought to conviction.

And, here is the C felony that was used to convict criminal defense attorney Benjamin Yu, of New York City, practicing for 12 years by the time of conviction, of the E-felony, "Conspiracy in the fourth degree" under Penal Law 105.10(1) - Penal Law 200.03, a C felony.

First of all, the whole Article 200 of the New York Penal Code is called "Bribery involving public servants and related offenses".

Penal Law 200.03 states:

S 200.03 Bribery in the second degree.
A person is guilty of bribery in the second degree when he confers, or
offers  or  agrees  to  confer,  any  benefit  valued  in excess of five
thousand  dollars
  upon  a  public  servant   upon   an   agreement   or
understanding  that  such  public  servant's  vote,  opinion,  judgment,
action, decision or exercise of discretion
  as  a  public  servant  will
thereby be influenced.

 
Bribery in the second degree is a class C felony."

Do you think, the words "public servant" were just a mere entertainment of the public when they were mentioned 4 TIMES, 1 in the name of the article containing definitions of crimes, and 3 TIMES in the definition of the crime charged against criminal defense attorney Benjamin Yu, and for which he was convicted:

  • after a grand jury indictment,
  • after denial to him of pre-trial motions,
  • after a jury trial, for God's sake, and
  • he was disbarred by an Appellate court based on that conviction.
It must have some meaning, right?

As a key element of the crime, actually.

And, let's finish the review of what the criminal defense attorney Benjamin Yu was actually convicted (and then disbarred) for in our most progressive state of New York, the #2 winner in the country of the biggest number of wrongful convictions?

He was convicted - by a jury, no less, for 13 counts (!) of "rewarding official misconduct", an E felony under the same Article 200 of the New York Penal Law, only another statute, Penal Law 200.20, which states:

S 200.20 Rewarding official misconduct in the second degree.
  A person is guilty of rewarding official misconduct in the second
degree when he knowingly confers, or offers or agrees to confer, any
benefit upon a public servant for having violated his duty as a public
servant.

 
Rewarding official misconduct in the second degree is a class E felony.

So, who was that mysterious "public servant" whom criminal defense attorney Benjamin Yu conspired to bribe?

The sad part is that here, the fabrication of the wrongful conviction - 
  • by the prosecution (Benjamin Yu's opponent in litigation with a conflict of interest) AND 
  • by the trial judge that gave the jury instructions on the law, AND
  • by the panel of 5 appellate judges that disbarred Benjamin Yu instead of tossing both his conviction and his disciplinary charges as screamingly illegal
was not even concealed by any means, it is out in the open.

Let's, before we go into the technicality of what was so wrong with this conviction (and disbarment), review first one more law of the glorious New York State - the law governing what kind of names can be given to CORPORATIONS.


301. Corporate name; general. (a)  Except  as  otherwise  provided  in  this  chapter, the name of a
  domestic or foreign corporation
:
(8)  Shall  not  contain  any words or phrases, or any abbreviation or
  derivation thereof
in a context which will tend to  mislead  the  public
  into  believing  that the corporation is an agency or instrumentality of
  the United States or the state of New York or a subdivision  thereof
  or
  is a public corporation.


Good to know, right?

Now let's go back to what criminal defense attorney Benjamin Yu was charged and convicted of - and automatically disbarred after that conviction.

Here is, once again, the order of disbarment of the criminal defense attorney Benjamin Yu, of October 26, 2017:

"Respondent's conviction stemmed from his paying an employee of the New York City Criminal Justice Agency to persuade criminal defendants to retain respondent as their attorney."

And here is WHAT that "New York City Criminal Justice Agency" is - a CORPORATION, with an IRS "non-profit" "ruling year" 1977.


But, the fact that the CORPORATION is called a New York City Criminal Justice Agency does not just "tend" to mislead the public that it is an agency of New York State "or of its subdivision" in some kind of a "context", it is bluntly and openly does so by

  • not having the extension required by law in its name to denote that it is a CORPORATION:

New York Business Corporation Law 301(a)(1):

(1) Shall contain the word "corporation", "incorporated" or "limited",
  or an abbreviation of one of such words; or, in the case  of  a  foreign
  corporation, it shall, for use in this state, add at the end of its name
  one of such words or an abbreviation thereof.



AND

  • by making no attempt to come to the court (which gives its funds, more than $18 million dollars per year, since 1977, according to its corporate tax returns published on guidestar.org) in the criminal proceedings against criminal defense attorney Benjamin Yu and saying - but, Your Honor, this is a farce, we are a CORPORATION, none of our employees are PUBLIC SERVANTS, or have "duties of PUBLIC SERVANTS", and none of misconduct of our employees can be deemed as "OFFICIAL MISCONDUCT".

Did you see even a MENTION, in either of these appellate court (and licensing court, one and the same) decisions that attorney Benjamin Yu paid an employee of a CORPORATION that is, for some God-forsaken reason is allowed by criminal courts in New York City, SINCE 1977!!! - for 42 freaking years) access to "arrestees", to "talk" to them in order to "make bail recommendations", at the time when those same "arrestees" have been 

  • arrested,
  • charged with a crime, and
  • by New York State Constitution their right to counsel INDELIBLY (no waivers of the right to counsel unless in the presence of counsel and with his written approval) attached at that time, and
  • by the federal Constitution, their right to counsel attached at the time of arraignment?
Not to mention that their right to remain silent is attached by virtue of being in the state custody (arrestees, remember)?

Do you see even an ATTEMPT of the court to explain to the public why such an "AGENCY" even exists and is given access to those same "arrestees"?

Do you see even an ATTEMPT of the court to explain to the public why the court stubbornly keeps calling this CORPORATION an Agency, and why it affirms a conviction of two people, one an attorney, the other - an employee of that CORPORATION, for violation of 

CORPORATE RULES and 
CORPORATE POLICIES

as if they were "public policies" and as if employees of that corporation were "public servants"?

On the other hand, even if the court claims that they WERE employees of the court, why doesn't the court even MENTION that the court, instead of doing its direct duty in assigning counsel to those arrestees, the court's duty under the state and federal Constitutions (the 6th Amendment, Gideon v Wainright), the counsel that will 
  • decide its own strategy, together with his client and while observing privilege of attorney-client communications,
  • whether to seek bail at all, and
  • if a decision to seek bail is made by the ATTORNEY AND HIS CLIENT - what kind of information to give the court in such bail proceedings, bearing in mind that the defendant "has a right to remain silent, anything you say can be used against you in the court of law", remember -
gives millions of dollars to some kind of a nonprofit corporation to talk to the "arrestees" (criminal defendants) INSTEAD of an attorney - while the court IS NOT ALLOWED to communicate with unrepresented criminal defendants if they want an attorney?

The court has only the duty to 

  • ask whether a defendant can afford an attorney - that's what Benjamin Yu did, instead of the court, asking the corporation's employee to "screen" defendants to verify who can and who cannot afford an attorney, 
  • WAIT until those who can afford an attorney HIRE such an attorney and be arraigned WITH the attorney, or
  • ASSIGN an attorney to those who cannot afford an attorney -
but NO RIGHT whatsoever to talk to the arrestee in the interim, through its supposed "employees", to make "bail recommendations" - to itself?


Do you think, the trial judge James M. Burke, by "coincidence", a graduate of the same prestigious law school as the prosecutor, of the Georgetown Law School, who has been licensed to practice law for nearly 30 years, did not know all of that?



The prosecutor, DA Cyrus R. Vance, Jr., a graduate of the prestigious Georgetown Law School, practicing criminal law for over 30 years, did not know that?



The prosecutor who was opposing Benjamin Yu's appeal on DA Vance, Jr.'s behalf, David M. Cohn, an attorney with 20 years of experience, did not know that?



The disbarring panel of appellate judges did not know that?

Think again.

As of now, a criminal defense attorney has been disbarred, despite of the existing and ever-widening justice gap when the majority of Americans not only cannot afford an attorney, but cannot even find a qualified lawyer who would fearlessly and competently represent them in court (think that Harvey Weinstein, with all his money, had to bring a criminal defense team from out of state, because his in-state attorneys withdrew from representation, likely under "public pressure", think about the vicious attacks on Rudy Giuliani for the gall of representing a client hated by large numbers of the public).

And was disbarred, on false pretenses, for supposedly bribing and conspiring to bribe a "public servant" - when all participants, the defense, the prosecution and all courts involved, know very well that the employee in question was an employee of a corporation that violates New York Business Corporation Law Section 301, its TWO provisions

(a)  Except  as  otherwise  provided  in  this  chapter, the name of a
  domestic or foreign corporation:
(1) Shall contain the word "corporation", "incorporated" or "limited",
  or an abbreviation of one of such words; or, in the case  of  a  foreign
  corporation, it shall, for use in this state, add at the end of its name
  one of such words or an abbreviation thereof. (8)  Shall  not  contain  any words or phrases, or any abbreviation or
  derivation thereof in a context which will tend to  mislead  the  public
  into  believing  that the corporation is an agency or instrumentality of
  the United States or the state of New York or a subdivision  thereof  or
  is a public corporation.

to obscure its corporate nature and do specifically, what New York Business Law 301 prohibits it from doing:

"to  mislead  the  public
  into  believing  that the corporation is an agency or instrumentality of
  the United States or the state of New York or a subdivision  thereof  or
  is a public corporation." Note that a non-profit and a "public corporation" are two different things. A non-profit is not a corporation that does not GET profits by its business activities, it is the one that does not DISTRIBUTE profits amongst its members. Consider also that there is no minimums set by New York, or federal, law for non-profits to use donated money on their declared mission. So, out of $18 million that this particular nonprofit, the New York City Criminal Justice Agency, Inc., receives from the New York State court budget "and private donations", right, this corporation may use $1 on the actual "declared mission", the other $18 million minus $1 can just be used on lavish corporate quarters, lavish salaries to staff and lavish perks for staff. The "agency"'s corporate policy also mentions contracts with relatives and friends of officers and employees of the "agency" - and the way to "resolve" such conflicts of interests - not by forbidding such contracts altogether, but this way:
"In the event CJA was to ever consider entering into a contract or a transaction with any of these individuals or their spouses, ancestors, children, their children's spouses, siblings (of the whole or half blood) and their spouses, or grandchildren and their spouses, then the contractor transaction would be subject to the scrutiny of the agency's conflict of interest policy and procedure. The Agency's conflict of interest policy is designed to avoid even the appearance of impropriety and establishes a procedure to address them pursuant to the policy. The interested Director, Board member or officer must disclose any potential conflict of interest to the full board (or to the executive director who shall disclose it to the full board) who shall evaluate the nature of the transaction, if the terms are in CJA's best interest, whether they are competitive and reasonable, whether the interested person has influenced the specific terms, the significance of the proposed transaction to the CJA, whether the proposed transaction has a material impact on the interested persons, company or business, and whether the proposed transaction would jeopardize the board, officers, members impartiality. If it is determined that a conflict of interest does exist, the board shall take appropriate corrective action, and, if warranted, disciplinary action. The interested person shall not be present during the final discussion and vote of the board if the board believes the interested person failed to disclose even a potential conflict". So, once again, it is not a direct prohibition of contracts with relatives and friends of members of the board, officers and employees of this corporation, the corporation has a policy to review whether a contract with an "interested" person will benefit the corporation - and then may allow it. I wonder, how many friends and relatives of judges and of the DA Cyrus toil in this so-called "agency". Note that at, as per requirement of federal Form 990, Part VI, Section C, line 19, (filed in 2014) this "agency" did disclose that it is in reality called: "The New York City Criminal Justice Agency, INC."
Not to mention that the declared mission, "serve the criminal justice agencies and enable the pre-trial process", is extremely shady -



as explained above, in view of its role of, de facto, in being informants for the court and the prosecution in violation of criminal defendants state and federal constitutional right to an attorney and to remain silent, especially when in state custody.


As of now, Benjamin Yu remains convicted of three felonies (18 counts all in all) of crimes for which the court did not have jurisdiction - likely because he has upset the apple cart of DA Cyrus R. Vance, Jr. in using the court's pet nonprofit as snitches and get information from defendants while the court, obviously by agreement with that same Cyrus R. Vance, Jr., delays doing its duty and assigning counsel to criminal defendants - and doing it for 42 years so far.

He has upset that apple cart by yanking at least those who can pay an attorney out of this illegal "line" created by the court, of criminal defendants sitting in jail and made to wait by the court when the employees of the court's pet non-profit will come and make them talk, in return for a promise of a recommendation to have them released out of jail - which is, in itself, a scheme of an organized crime.

The gall!  An attorney trying to figure out who, out of those illegally kept by courts in jail without counsel, can afford counsel and actually representing them!

That is the real reason for courts and the prosecution coming against a criminal defense attorney as a ton of bricks and destroying his life, reputation and career.

The legal profession, including the defense bar, is mum.

No demonstrations, no petitions for their colleague framed into 
an obviously illegal conviction and disbarment.

On the opposite, New York Law Journal matter of factly reports
about a proposed "reciprocal" disbarment of Benjamin Yu 


You know why the defense bar does not display solidarity with an OBVIOUSLY wrongfully convicted colleague?

The trial prosecutor expressed it quite frankly, talking to the press around sentencing of Benjamin Yu:

"Assistant District Attorney Samuel Levy said the defendants don't seem to care that they cheated their colleagues and cheated to get ahead."

The local defense bar, in collusion with the court and prosecutor, who had their own reasons for a grudge against Benjamin Yu, as described above, simply got rid of a competitor - as "greedy", "cheating colleagues", and "cheating to get ahead".

The fates and constitutional of criminal defendants, sitting without counsel, according to court's "policy" of 42 years and waiting until the court and prosecutor's snitch urges them to talk in exchange of a promise for release from jail on bail - do not concern that same defense bar, courts, or prosecution, one bit.

As to the backgrounds of those who brought this farce of "criminal justice" about, and the impact of Benjamin Yu's conviction on the New York State and federal criminal and constitutional law - 

stay tuned to read the next articles in this series.