Indictment; bill of particulars

§ 200.95 Indictment; bill of particulars.

1. Definitions. (a) "Bill of particulars" is a written statement by
the prosecutor specifying, as required by this section, items of factual
information which are not recited in the indictment and which pertain to
the offense charged and including the substance of each defendant's
conduct encompassed by the charge which the people intend to prove at
trial on their direct case, and whether the people intend to prove that
the defendant acted as principal or accomplice or both, and items of
factual information which are not recited in a special forfeiture
information or prosecutor's forfeiture information containing one or
more forfeiture counts and which pertain to the substance of each
defendant's conduct giving rise to the forfeiture claim, the approximate
value of property for which forfeiture is sought, the nature and extent
of the defendant's interest in such property, and the extent of the
defendant's gain, if any, from the offense charged. However, the
prosecutor shall not be required to include in the bill of particulars
matters of evidence relating to how the people intend to prove the
elements of the offense charged or how the people intend to prove any
item of factual information included in the bill of particulars.

(b) "Request for a bill of particulars" is a written request served by
defendant upon the people, without leave of the court, requesting a bill
of particulars, specifying the items of factual information desired, and
alleging that defendant cannot adequately prepare or conduct his defense
without the information requested.

2. Bill of particulars upon request. Upon a timely request for a bill
of particulars by a defendant against whom an indictment is pending, the
prosecutor shall within fifteen days of the service of the request or as
soon thereafter as is practicable, serve upon the defendant or his
attorney, and file with the court, the bill of particulars, except to
the extent the prosecutor shall have refused to comply with the request
pursuant to subdivision four of this section.

3. Timeliness of request. A request for a bill of particulars shall be
timely if made within thirty days after arraignment and before the
commencement of trial. If the defendant is not represented by counsel,
and has requested an adjournment to obtain counsel or to have counsel
assigned, the thirty day period shall commence, for the purposes of a
request for a bill of particulars by the defendant, on the date counsel
initially appears on his behalf. However, the court may direct
compliance with a request for a bill of particulars that, for good cause
shown, could not have been made within the time specified.

4. Request refused. The prosecutor may refuse to comply with the
request for a bill of particulars or any portion of the request for a
bill of particulars to the extent he reasonably believes that the item
of factual information requested is not authorized to be included in a
bill of particulars, or that such information is not necessary to enable
the defendant adequately to prepare or conduct his defense, or that a
protective order would be warranted or that the demand is untimely. Such
refusal shall be made in a writing, which shall set forth the grounds of
such belief as fully as possible, consistent with the reason for the
refusal. Within fifteen days of the request or as soon thereafter as
practicable, the refusal shall be served upon the defendant and a copy
shall be filed with the court.

5. Court ordered bill of particulars. Where a prosecutor has timely
served a written refusal pursuant to subdivision four of this section
and upon motion, made in writing, of a defendant, who has made a request
for a bill of particulars and whose request has not been complied with
in whole or in part, the court must, to the extent a protective order is
not warranted, order the prosecutor to comply with the request if it is
satisfied that the items of factual information requested are authorized
to be included in a bill of particulars, and that such information is
necessary to enable the defendant adequately to prepare or conduct his
defense and, if the request was untimely, a finding of good cause for
the delay. Where a prosecutor has not timely served a written refusal
pursuant to subdivision four of this section the court must, unless it
is satisfied that the people have shown good cause why such an order
should not be issued, issue an order requiring the prosecutor to comply
or providing for any other order authorized by section 245.80 of this
part.

6. Motion procedure. A motion for a bill of particulars shall be made
as prescribed in section 255.20. Upon an order granting a motion
pursuant to this section, the prosecutor must file with the court a bill
of particulars, reciting every item of information designated in the
order, and serve a copy thereof upon the defendant. Pending such filing
and service, the proceedings are stayed.

7. Protective order. (a) The court in which the criminal action is
pending may, upon motion of the prosecutor, or of any affected person,
or upon determination of a motion of defendant for a court ordered bill
of particulars, or upon its own initiative, issue a protective order
denying, limiting, conditioning, delaying or regulating the bill of
particulars for good cause, including constitutional limitations, danger
to the integrity of physical evidence or a substantial risk of physical
harm, intimidation, economic reprisal, bribery or unjustified annoyance
or embarrassment to any person or an adverse effect upon the legitimate
needs of law enforcement, including the protection of the
confidentiality of informants, or any other factor or set of factors
which outweighs the need for the bill of particulars.

(b) An order limiting, conditioning, delaying or regulating the bill
of particulars may, among other things, require that any material copied
or derived therefrom be maintained in the exclusive possession of the
attorney for the defendant and be used for the exclusive purpose of
preparing for the defense of the criminal action.

8. Amendment. At any time before commencement of trial, the prosecutor
may, without leave of the court, serve upon defendant and file with the
court an amended bill of particulars. At any time during trial, upon
application of the prosecutor and with notice to the defendant and an
opportunity for him to be heard, the court must, upon finding that no
undue prejudice will accrue to defendant and that the prosecutor has
acted in good faith, permit the prosecutor to amend the bill of
particulars. Upon any amendment of the bill of particulars, the court
must, upon application of defendant, order an adjournment of the
proceedings or any other action it deems appropriate which may, by
reason of the amendment, be necessary to accord the defendant an
adequate opportunity to defend.