Discovery; upon court order

* § 240.40 Discovery; upon court order.

1. Upon motion of a defendant against whom an indictment, superior
court information, prosecutor's information, information, or simplified
information charging a misdemeanor is pending, the court in which such
accusatory instrument is pending:

(a) must order discovery as to any material not disclosed upon a
demand pursuant to section 240.20, if it finds that the prosecutor's
refusal to disclose such material is not justified; (b) must, unless it
is satisfied that the people have shown good cause why such an order
should not be issued, order discovery or any other order authorized by
subdivision one of section 240.70 as to any material not disclosed upon
demand pursuant to section 240.20 where the prosecutor has failed to
serve a timely written refusal pursuant to section 240.35; (c) may order
discovery with respect to any other property, which the people intend to
introduce at the trial, upon a showing by the defendant that discovery
with respect to such property is material to the preparation of his or
her defense, and that the request is reasonable; and (d) where property
in the people's possession, custody, or control that consists of a
deoxyribonucleic acid ("DNA") profile obtained from probative biological
material gathered in connection with the investigation or prosecution of
the defendant and the defendant establishes that such profile complies
with federal bureau of investigation or state requirements, whichever
are applicable and as such requirements are applied to law enforcement
agencies seeking a keyboard search or similar comparison, and that the
data meets state DNA index system or national DNA index system criteria
as such criteria are applied to law enforcement agencies seeking such a
keyboard search or similar comparison, the court may order an entity
that has access to the combined DNA index system or its successor system
to compare such DNA profile against DNA databanks by keyboard searches,
or a similar method that does not involve uploading, upon notice to both
parties and the entity required to perform the search, upon a showing by
the defendant that such a comparison is material to the presentation of
his or her defense and that the request is reasonable. For purposes of
this paragraph, a "keyboard search" shall mean a search of a DNA profile
against the databank in which the profile that is searched is not
uploaded to or maintained in the databank. Upon granting the motion
pursuant to paragraph (c) of this subdivision, the court shall, upon
motion of the people showing such to be material to the preparation of
their case and that the request is reasonable, condition its order of
discovery by further directing discovery by the people of property, of
the same kind or character as that authorized to be inspected by the
defendant, which he or she intends to introduce at the trial.

2. Upon motion of the prosecutor, and subject to constitutional
limitation, the court in which an indictment, superior court
information, prosecutor's information, information, or simplified
information charging a misdemeanor is pending: (a) must order discovery
as to any property not disclosed upon a demand pursuant to section
240.30, if it finds that the defendant's refusal to disclose such
material is not justified; and (b) may order the defendant to provide
non-testimonial evidence. Such order may, among other things, require
the defendant to:

(i) Appear in a line-up;

(ii) Speak for identification by witness or potential witness;

(iii) Be fingerprinted;

(iv) Pose for photographs not involving reenactment of an event;

(v) Permit the taking of samples of blood, hair or other materials
from his body in a manner not involving an unreasonable intrusion
thereof or a risk of serious physical injury thereto;

(vi) Provide specimens of his handwriting;

(vii) Submit to a reasonable physical or medical inspection of his
body.

This subdivision shall not be construed to limit, expand, or otherwise
affect the issuance of a similar court order, as may be authorized by
law, before the filing of an accusatory instrument consistent with such
rights as the defendant may derive from the constitution of this state
or of the United States. This section shall not be construed to limit or
otherwise affect the adminstration of a chemical test where otherwise
authorized pursuant to section one thousand one hundred ninety-four-a of
the vehicle and traffic law.

3. An order pursuant to this section may be denied, limited or
conditioned as provided in section 240.50.

* NB Repealed January 1, 2020