O FFICE OF THE D I STRICT A TTORNEY

R ICHMOND C OUNT Y
MICHAEL E. MCMAHON
DISTRICT ATTORNEY

2023 Discovery Reform Proposal

New York’s 2019 discovery reforms created a substantial workload for District Attorneys across the
state creating tight deadlines regardless of the information’s materiality to the charges a defendant faces.
Discoverable information is often voluminous or duplicative and difficulty in obtaining materials from
agencies in actual possession of the information can results in a delay in disclosure. This is particularly
problematic with respect to underlying documents relating to law enforcement disciplinary records or civil
proceedings. When these tight timelines and difficulties in obtaining voluminous information are combined
with the inability to answer ready for trial results, cases are often dismissed pursuant to CPL 30.30 despite
People’s best efforts to comply and lack of prejudice to defense. Below is proposed a staggered discovery
scheme I believe will address many of the issues District Attorneys throughout the state have identified
through practice these last two years while keeping and respecting the spirit of openness and fairness
underlining the 2019 reforms.
Preliminary Information
The proposed amendments stagger discovery into three categories: the initial, or “materiality,” phase,
the second, or “duplicative and non-material,” phase, and finally, the third, or “impeachment,” phase. To
enforce these staggered obligations, a certificate of compliance with each stage will have to be filed. No
certificate of readiness can be filed until certificates attesting to the completion of discovery of stages one
and two have been filed. By excluding those periods from the Section 30.30 calculation, the People will not
be charged with the time during which they are complying with the statutory discovery obligations.
The periods during which discovery is prepared and supplied will be excludable only if the deadline
is met. If the People do not meet that deadline, the time will be chargeable subject to application of CPL
30.30(4)(g)’s exceptional circumstances exclusion. In addition, if the People fail to meet one of the
deadlines, defendant may be afforded de novo bail review at which there will be a presumption for release
under non-monetary condition. The presumption may be rebutted by demonstration of exceptional
circumstance under CPL Section 30.30(4)(g).
Also, remedies or sanctions for non-compliance under CPL Section 245.80 should be amended to
include information that is “otherwise unavailable,” as well as information has been lost or destroyed.
“Otherwise unavailable,” should be defined as material or information that is not in the actual possession of
the prosecutor despite diligent and good faith efforts, reasonable under the circumstances.
Materiality Phase
Amend C.P.L. §245.20(1) to define materiality as items and information that relate to the criminal
acts charged in the accusatory instrument, the defendant’s arrest and seizure, as well as other events about
which the People intend to introduce evidence in their case in chief at trial or at a pretrial hearing.

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 The definition of materiality includes impeachment material relating to any witness who has testified
in any proceeding relating to the accusatory instrument. Summaries of disciplinary proceedings satisfy the
materiality requirement for those who have testified at any prior proceeding.
The People will have 20 days from arraignment to file their materiality COC for a defendant in
custody and 35 days from arraignment to file their materiality COC for a defendant not in custody.
Duplicative and Non-Material Phase
Once the People have filed their Materiality COC, the defendant has forty-five days to file his or her
omnibus motion, and the People must begin disclosing duplicative and non-material information (examples
include, but are not limited to, additional body worn camera or case files from responding officers that did
nothing more than secure a crime scene).
The People must file their omnibus motion response with 30 days of its receipt and must provide all
duplicative and non-material discovery no later than the date of the filing of the response. The 30 day
deadline may be extended with permission of the court.
Once this disclosure is complete, the People may file their second Certificate of Compliance and at
this time, may file their Certificate of Trial Readiness.
Impeachment Phase
The People must provide any remaining impeachment material for witnesses not subject to the
previous disclosure deadline no later than 15 days after decision on the omnibus motion.