Court orders for preservation, access or discovery

§ 245.30 Court orders for preservation, access or discovery.

1. Order to preserve evidence. At any time, a party may move for a
court order to any individual, agency or other entity in possession,
custody or control of items which relate to the subject matter of the
case or are otherwise relevant, requiring that such items be preserved
for a specified period of time. The court shall hear and rule upon such
motions expeditiously. The court may modify or vacate such an order upon
a showing that preservation of particular evidence will create
significant hardship to such individual, agency or entity, on condition
that the probative value of that evidence is preserved by a specified
alternative means.

2. Order to grant access to premises. Without prejudice to its ability
to issue a subpoena pursuant to this chapter and after an accusatory
instrument has been filed, the defendant may move, upon notice to the
prosecution and any impacted individual, agency, or entity, for a court
order to access a crime scene or other premises relevant to the subject
matter of the case, requiring that counsel for the defendant be granted
reasonable access to inspect, photograph, or measure such crime scene or
premises, and that the condition of the crime scene or premises remain
unchanged in the interim. The court shall consider defendant's expressed
need for access to the premises including the risk that defendant will
be deprived of evidence or information relevant to the case, the
position of any individual or entity with possessory or ownership rights
to the premises, the nature of the privacy interest and any perceived or
actual hardship of the individual or entity with possessory or ownership
rights, and the position of the prosecution with respect to any
application for access to the premises. The court may deny access to the
premises when the probative value of access to such location has been or
will be preserved by specified alternative means. If the court grants
access to the premises, the individual or entity with ownership or
possessory rights to the premises may request law enforcement presence
at the premises while defense counsel or a representative thereof is
present.

3. Discretionary discovery by order of the court. The court in its
discretion may, upon a showing by the defendant that the request is
reasonable and that the defendant is unable without undue hardship to
obtain the substantial equivalent by other means, order the prosecution,
or any individual, agency or other entity subject to the jurisdiction of
the court, to make available for disclosure to the defendant any
material or information which relates to the subject matter of the case
and is reasonably likely to be material. A motion under this subdivision
must be on notice to any person or entity affected by the order. The
court may, on its own, upon request of any person or entity affected by
the order, modify or vacate the order if compliance would be
unreasonable or will create significant hardship. For good cause shown,
the court may permit a party seeking or opposing a discretionary order
of discovery under this subdivision, or another affected person or
entity, to submit papers or testify on the record ex parte or in camera.
For good cause shown, any such papers and a transcript of such testimony
may be sealed and shall constitute a part of the record on appeal.