- Consolidated Laws - Family Court
PART 3
DISCOVERY
Section 330.1. Bill of particulars.
330.2. Suppression of evidence.
331.1. Discovery; definition of terms.
331.2. Discovery; upon demand of a party.
331.3. Discovery; upon court order.
331.4. Discovery; of prior statements and history of witnesses.
331.5. Discovery; protective orders, continuing duty to
disclose.
331.6. Discovery; sanctions.
331.7. Discovery; demand and motion procedure.
332.1. Pre-trial motions; definition.
332.2. Pre-trial motions; procedure.
335.1. Notice of defense of mental disease or defect.
335.2. Notice of alibi.
S 330.1. Bill of particulars. 1. Definitions. (a) "Bill of
particulars" is a written statement by the presentment agency
specifying, as required by this section, items of factual information
which are not recited in the petition and which pertain to the offense
charged and including the substance of each respondent`s conduct
encompassed by the charge which the presentment agency intends to prove
at a fact-finding hearing on its direct case, and whether the
presentment agency intends to prove that the respondent acted as
principal or accomplice or both. However, the presentment agency shall
not be required to include in the bill of particulars matters of
evidence relating to how the presentment agency intends to prove the
elements of the offense charged or how the presentment agency intends 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
respondent upon the presentment agency, without leave of the court,
requesting a bill of particulars, specifying the items of factual
information desired, and alleging that respondent 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 respondent against whom a petition is pending, the
presentment agency shall within fifteen days of the service of the
request or as soon thereafter as is practicable, serve upon the
respondent or his attorney or law guardian and file with the court, the
bill of particulars, except to the extent the presentment agency shall
have refused to comply with the request pursuant to subdivision four of
this section. If the respondent is detained, the court shall direct the
filing of the bill of particulars on an expedited basis and prior to the
commencement of the fact-finding hearing.
3. Timeliness of request. A request for a bill of particulars shall be
timely if made within thirty days after the conclusion of the initial
appearance and before commencement of the fact-finding hearing. If the
respondent is not represented by counsel or a law guardian, and has
requested an adjournment to retain counsel or to have a law guardian
appointed, the thirty-day period shall commence, for the purposes of a
request for a bill of particulars by the respondent, on the date counsel
or a law guardian initially appeared on respondent`s 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 presentment agency 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 it 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 respondent 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 respondent and a copy
shall be filed with the court.
5. Court ordered bill of particulars. Where a presentment agency has
timely served a written refusal pursuant to subdivision four of this
section and upon motion, made in writing, of a respondent, 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 presentment agency 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
respondent adequately to prepare or conduct his defense and, if the
request was untimely, a finding of good cause for the delay. Where a
presentment agency has not timely served a written refusal pursuant to
subdivision four of this section the court must, unless it is satisfied
that the presentment agency has shown good cause why such an order
should not be issued, issue an order requiring the presentment agency to
comply or providing for any other order authorized by subdivision one of
section 331.6.
6. Motion procedure. A motion for a bill of particulars shall be made
as prescribed in section 332.1. Upon an order granting a motion pursuant
to this section, the presentment agency 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 respondent. Pending such filing
and service, the fact-finding hearing is stayed.
7. Protective order. (a) The court may, upon motion of the presentment
agency, or of any affected person, or upon determination of a motion of
respondent 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 or law guardian for the respondent and be used for the
exclusive purpose of preparing for the defense of the juvenile
delinquency proceeding.
8. Amendment. At any time before commencement of the fact-finding
hearing, the presentment agency may, without leave of the court, serve
upon respondent and file with the court an amended bill of particulars.
At any time during the fact-finding hearing, upon application of the
presentment agency and with notice to the respondent and an opportunity
for him to be heard, the court must, upon finding that no undue
prejudice will accrue to respondent and that the presentment agency has
acted in good faith, permit the presentment agency to amend the bill of
particulars. Upon any amendment of the bill of particulars, the court
must, upon application of respondent, order an adjournment of the
fact-finding hearing or any other action it deems appropriate which may,
by reason of the amendment, be necessary to accord the respondent an
adequate opportunity to defend.
S 330.2. Suppression of evidence. 1. A respondent in a juvenile
delinquency proceeding may make a motion to suppress evidence in
accordance with sections 710.20 and 710.60 of the criminal procedure
law.
2. Whenever the presentment agency intends to offer at a fact-finding
hearing evidence described in section 710.20 or subdivision one of
section 710.30 of the criminal procedure law, such agency must serve
upon respondent notice of such intention. Such notice must be served
within fifteen days after the conclusion of the initial appearance or
before the fact-finding hearing, whichever occurs first, unless the
court, for good cause shown, permits later service and accords the
respondent a reasonable opportunity to make a suppression motion
thereafter. If the respondent is detained, the court shall direct that
such notice be served on an expedited basis.
3. When a motion to suppress evidence is made before the commencement
of the fact-finding hearing, the fact-finding hearing shall not be held
until the determination of the motion.
4. After the pre-trial determination and denial of the motion, if the
court is satisfied, upon a showing by the respondent, that additional
pertinent facts have been discovered by the respondent which could not
have been discovered by the respondent with reasonable diligence before
determination of the motion, it may permit him to renew. Such motion to
renew shall be made prior to the commencement of the fact-finding
hearing, unless the additional pertinent facts were discovered during
the fact-finding hearing.
5. Upon granting a motion to suppress evidence, the court must order
that the evidence in question be excluded. When the order excludes
tangible property unlawfully taken from the respondent`s possession, and
when such property is not otherwise subject to lawful retention, the
court may, upon request of the respondent, further order that such
property be restored to him.
6. An order finally denying a motion to suppress evidence may be
reviewed upon an appeal from an ensuing finding of delinquency,
notwithstanding the fact that such finding is entered upon an admission
made by the respondent, unless the respondent, upon an admission,
expressly waives his right to appeal.
7. A motion to suppress evidence is the exclusive method of
challenging the admissibility of evidence upon the grounds specified in
this section, and a respondent who does not make such a motion waives
his right to judicial determination of any such contention.
8. In the absence of service of notice upon a respondent as prescribed
in this section, no evidence of a kind specified in subdivision two may
be received against him at the fact-finding hearing unless he has,
despite the lack of such notice, moved to suppress such evidence and
such motion has been denied.
9. An order granting a motion to suppress evidence shall be deemed an
order of disposition appealable under section eleven hundred twelve. In
taking such an appeal the presentment agency must file, in addition to a
notice of appeal, a statement alleging that the deprivation of the use
of the evidence ordered suppressed has rendered the sum of the proof
available to the presentment agency either: (a) insufficient as a matter
of law, or (b) so weak in its entirety that any reasonable possibility
of proving the allegations contained in the petition has been
effectively destroyed. If the respondent is in detention he shall be
released pending such appeal unless the court, upon conducting a
hearing, enters an order continuing detention. An order continuing
detention under this subdivision may be stayed by the appropriate
appellate division.
10. The taking of an appeal by the presentment agency pursuant to
subdivision nine constitutes a bar to the presentment of the petition
involving the evidence ordered suppressed, unless and until such
suppression is reversed upon appeal and vacated.
S 331.1. Discovery; definition of terms. The following definitions are
applicable to this section and sections 331.2 through 331.7.
1. "Demand to produce" means a written notice served by and on a
party, without leave of the court, demanding to inspect property
pursuant to section 331.2 or 331.3 and giving reasonable notice of the
time at which the demanding party wishes to inspect the property
designated.
2. "Attorneys` work product" means property to the extent that it
contains the opinions, theories or conclusions of the presentment
agency, law guardian, counsel for the respondent or members of their
staffs.
3. "Property" means any existing tangible personal or real property,
including but not limited to, books, records, reports, memoranda,
papers, photographs, tapes or other electronic recordings, articles of
clothing, fingerprints, blood samples, fingernail scrapings or
handwriting specimens, but excluding attorneys` work product.
4. "Co-respondent" means a person whose name appears in the petition
pursuant to paragraph (i) of subdivision three of section 311.1.
S 331.2. Discovery; upon demand of a party. 1. Except to the extent
protected by court order, upon a demand to produce by a respondent, the
presentment agency shall disclose to the respondent and make available
for inspection, photography, copying or testing, the following property:
(a) any written, recorded or oral statement of the respondent, or by a
co-respondent, made, other than in the course of the criminal
transaction, to a public servant engaged in law enforcement activity or
to a person then acting under his direction or in cooperation with him;
(b) any transcript of testimony relating to the proceeding pending
against the respondent, given by the respondent, or by a co-respondent,
before any grand jury;
(c) any written report or document, or portion thereof, concerning a
physical or mental examination, or scientific test or experiment,
relating to the proceeding which was made by, or at the request or
direction of a public servant engaged in law enforcement activity or
which was made by a person whom the presentment agency intends to call
as a witness at a hearing, or which the presentment agency intends to
introduce at a hearing;
(d) any photograph or drawing relating to the proceeding which was
made or completed by a public servant engaged in law enforcement
activity, or which was made by a person whom the presentment agency
intends to call as a witness at a hearing, or which the presentment
agency intends to introduce at a hearing;
(e) any other property obtained from the respondent or a
co-respondent;
(f) any tapes or other electronic recordings which the presentment
agency intends to introduce at the fact-finding hearing, irrespective of
whether such recording was made during the course of the criminal
transaction;
(g) anything required to be disclosed, prior to the fact-finding
hearing, to the respondent by the presentment agency, pursuant to the
constitution of this state or of the United States; and
(h) the approximate date, time and place of the offense charged and of
respondent`s arrest.
2. (a) The presentment agency shall make a diligent, good faith effort
to ascertain the existence of property demanded pursuant to subdivision
one and to cause such property to be made available for discovery where
it exists but is not within the presentment agency`s possession, custody
or control; provided, that the presentment agency shall not be required
to obtain by subpoena duces tecum demanded material which the respondent
may thereby obtain.
(b) In any case in which the property includes grand jury testimony,
the presentment agency shall forthwith request that the district
attorney provide a transcript of such testimony; upon receiving such a
request, the district attorney shall promptly apply to the appropriate
criminal court, with written notice to the presentment agency and the
respondent, for a written order pursuant to section three hundred
twenty-five of the judiciary law releasing a transcript of testimony to
the presentment agency.
3. Except to the extent protected by court order, upon demand to
produce by the presentment agency, the respondent shall disclose and
make available for inspection, photography, copying or testing, subject
to constitutional limitations:
(a) any written report or document, or portion thereof, concerning a
physical examination, or scientific test, experiment, or comparison,
made by or at the request or direction of, the respondent, if the
respondent intends to introduce such report or document at a hearing, or
if the respondent has filed a notice of defense of mental disease or
defect pursuant to section 335.1 and such report or document relates
thereto, or if such report or document was made by a person, other than
respondent, whom respondent intends to call as a witness at a hearing;
and
(b) any photograph, drawing, tape or other electronic recording which
the respondent intends to introduce at a hearing.
4. Except to the extent protected by court order, upon demand to
produce by the presentment agency, a respondent who has served a written
notice, under section 335.1, of intention to rely upon the defense of
mental disease or defect shall disclose and make available for
inspection, photography, copying or testing, subject to constitutional
limitations, any written report or document, or portion thereof,
concerning a mental examination made by or at the request or direction
of the respondent.
5. The respondent shall make a diligent good faith effort to make such
property available for discovery pursuant to subdivisions three and four
where it exists but the property is not within his possession, custody
or control, provided that the respondent shall not be required to obtain
by subpoena duces tecum demanded material that the presentment agency
may thereby obtain.
6. Notwithstanding the provisions of subdivisions one through five,
the presentment agency or the respondent, as the case may be, may refuse
to disclose any information which he reasonably believes is not
discoverable by a demand to produce, or for which he reasonably believes
a protective order pursuant to section 331.5 would be warranted. Such
refusal shall be made in writing, which shall set forth the grounds of
such belief as fully as possible, consistent with the objective of the
refusal. The writing shall be served upon the demanding party and a copy
shall be filed with the court.
S 331.3. Discovery; upon court order. 1. Upon motion of respondent the
court, (a) must order discovery as to any material not disclosed upon a
demand pursuant to section 331.2, if it finds that the presentment
agency`s refusal to disclose such material is not justified; (b) must,
unless it is satisfied that the presentment agency has shown good cause
why such an order should not be issued, order discovery or any other
order authorized by subdivision one of section 331.6 as to any material
not disclosed upon demand pursuant to section 331.2 where the
presentment agency has failed to serve a timely written refusal pursuant
to subdivision six of section 331.2; and (c) may order discovery with
respect to any other property which the presentment agency intends to
introduce at the fact-finding hearing, upon a showing by the respondent
that discovery with respect to such property is material to the
preparation of his defense, and that the request is reasonable. Upon
granting the motion pursuant to paragraph (c) hereof, the court shall,
upon motion of the presentment agency showing such to be material to the
preparation of its case and that the request is reasonable, condition
its order of discovery by further directing discovery by the presentment
agency of property, of the same kind or character as that authorized to
be inspected by the respondent which he intends to introduce at the
fact-finding hearing.
2. Upon motion of the presentment agency, and subject to
constitutional limitation, the court; (a) must order discovery as to any
property not disclosed upon a demand pursuant to section 331.2, if it
finds that the respondent`s refusal to disclose such material is not
justified; and (b) may order the respondent to provide non-testimonial
evidence. Such order may, among other things, require the respondent to:
(i) appear in a line-up;
(ii) speak for identification by witness or potential witness;
(iii) be fingerprinted, provided that the respondent is subject to
fingerprinting pursuant to this article;
(iv) pose for photographs not involving reenactment of an event,
provided the respondent is subject to fingerprinting pursuant to this
article;
(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; and
(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 a petition consistent with such rights as the
respondent may derive from this article, the constitution of this state
or of the United States.
3. An order pursuant to this section may be denied, limited or
conditioned as provided in section 331.5.
S 331.4. Discovery; of prior statements and history of witnesses. 1.
At the commencement of the fact-finding hearing, the presentment agency
shall, subject to a protective order, make available to the respondent:
(a) any written or recorded statement, including any testimony before
a grand jury and any examination videotaped pursuant to section 190.32
of the criminal procedure law, made by a person whom the presentment
agency intends to call as a witness at the fact-finding hearing, and
which relates to the subject matter of the witness`s testimony. When
such a statement includes grand jury testimony, the presentment agency
shall request that the district attorney provide a transcript of
testimony prior to the commencement of the fact-finding hearing; upon
receiving such a request, the district attorney shall promptly apply to
the appropriate criminal court, with written notice to the presentment
agency and the respondent, for a written order pursuant to section three
hundred twenty-five of the judiciary law releasing a transcript of
testimony to the presentment agency;
(b) a record of judgment of conviction of a witness the presentment
agency intends to call at the fact-finding hearing if such record is
known by the presentment agency to exist;
(c) the existence of any pending criminal action against a witness the
presentment agency intends to call at the fact-finding hearing, if the
pending criminal action is known by the presentment agency to exist.
The provisions of paragraphs (b) and (c) shall not be construed to
require the presentment agency to fingerprint a witness or otherwise
cause the division of criminal justice services or other law enforcement
agency or court to issue a report concerning a witness.
2. At the conclusion of the presentment agency`s direct case and
before the commencement of the respondent`s direct case, the respondent
shall, subject to a protective order, make available to the presentment
agency (a) any written or recorded statement made by a person other than
the respondent whom the respondent intends to call as a witness at the
fact-finding hearing and which relates to the subject matter of the
witness`s testimony; (b) a record of judgment of conviction of a
witness, other than the respondent, the respondent intends to call at a
hearing if the record of conviction is known by the respondent to exist;
and (c) the existence of any pending criminal action against a witness,
other than the respondent, the respondent intends to call at a hearing,
if the pending criminal action is known by the respondent to exist.
3. Subject to a protective order, at a pre-fact-finding hearing held
upon a motion pursuant to section 330.2, at which a witness is called to
testify, each party at the conclusion of the direct examination of each
of its witnesses, shall, upon request of the other party, make available
to that party to the extent not previously disclosed:
(a) any written or recorded statement, including any testimony before
a grand jury, made by such witness other than the respondent, which
relates to the subject matter of the witness`s testimony. When such a
statement includes grand jury testimony, the presentment agency shall
request that the district attorney provide a transcript of testimony
prior to the commencement of the pre-fact-finding hearing; upon
receiving such a request, the district attorney shall promptly apply to
the appropriate criminal court, with written notice to the presentment
agency and the respondent, for a written order pursuant to section three
hundred twenty-five of the judiciary law releasing a transcript of
testimony to the presentment agency;
(b) a record of a judgment of conviction of such witness other than
the respondent if the record of conviction is known by the presentment
agency or respondent, as the case may be, to exist; and
(c) the existence of any pending criminal action against such witness
other than the respondent, if the pending criminal action is known by
the presentment agency or respondent, as the case may be, to exist.
S 331.5. Discovery; protective orders, continuing duty to disclose. 1.
The court may, upon motion of either party, or of any affected person,
or upon determination of a motion of either party for an order of
discovery, or upon its own initiative, issue a protective order denying,
limiting, conditioning, delaying or regulating discovery 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
usefulness of the discovery.
2. An order limiting, conditioning, delaying or regulating discovery
may, among other things, require that any material copied or derived
therefrom be maintained in the exclusive possession of the attorney for
the discovering party and be used for the exclusive purpose of preparing
for the defense or presentment of the action.
3. A motion for a protective order shall suspend discovery of the
particular matter in dispute.
4. If, after complying with the provisions of sections 331.2 through
331.7 or an order pursuant thereto, a party finds, either before or
during the fact-finding hearing, additional material subject to
discovery or covered by such order, he shall promptly comply with the
demand or order, refuse to comply with the demand where refusal is
authorized, or apply for a protective order pursuant to this section.
S 331.6. Discovery; sanctions. 1. If, during the course of discovery
proceedings, the court finds that a party has failed to comply with any
of the provisions of sections 331.2 through 331.7, the court may order
such party to permit discovery of the property not previously disclosed,
grant a continuance, issue a protective order, prohibit the introduction
of certain evidence or the calling of certain witnesses or take any
other appropriate action.
2. The failure of the presentment agency to call as a witness a person
specified in subdivision one of section 331.2 or any party to introduce
disclosed material at the fact-finding hearing shall not, by itself
constitute grounds for any sanction or for adverse comment thereupon by
any party.
S 331.7. Discovery; demand and motion procedure. 1. If the respondent
is in detention:
(a) a demand to produce shall be made within seven days after the
conclusion of the initial appearance or prior to the commencement of the
fact-finding hearing, whichever occurs sooner, unless the court grants
an extension for good cause shown;
(b) a refusal to comply with a demand to produce shall be made within
five days of the service of the demand to produce, but for good cause
may be made thereafter;
(c) absent a refusal to comply with a demand to produce, compliance
with such demand shall be made within seven days of the service of the
demand or as soon thereafter as practicable. The court, however, may
order compliance within a shorter period of time.
2. If the respondent is not in detention:
(a) a demand to produce shall be made within fifteen days after the
conclusion of the initial appearance unless extended for good cause
shown, but in no event later than the commencement of the fact-finding
hearing;
(b) a refusal to comply with a demand to produce shall be made within
fifteen days of the service of the demand to produce, but for good cause
may be made thereafter;
(c) absent a refusal to comply with a demand to produce, compliance
with such demand shall be made within fifteen days of the service of the
demand or as soon thereafter as practicable.
3. If the respondent is not in detention, a motion by the presentment
agency for discovery shall be made within thirty days after the
conclusion of the initial appearance, but for good cause shown may be
made at any time before commencement of the fact-finding hearing. If the
respondent is in detention such motion shall be made within fourteen
days after the conclusion of the initial appearance or prior to the
commencement of the fact-finding hearing, whichever occurs sooner.
4. A motion by a respondent for discovery shall be made as prescribed
in section 332.2.
5. Where the interests of justice so require, the court may permit a
party to a motion for an order of discovery or a protective order, or
other affected person, to submit papers or to testify ex parte or in
camera. Any such papers and transcripts of such testimony shall be
sealed, but shall constitute a part of the record on appeal. If
practical, a judge who receives papers or testimony in camera shall
refer the case to a different judge of the same court to preside at the
fact-finding hearing.
S 332.1. Pre-trial motions; definition. "Pre-trial motion" as used in
this article means any motion by a respondent which seeks an order of
the court:
1. transferring a proceeding pursuant to section 302.3; or
2. granting a separate fact-finding hearing pursuant to section 311.3;
or
3. granting separate fact-finding hearings or consolidating petitions
pursuant to section 311.6; or
4. dismissing a petition pursuant to section 315.1; or
5. granting a bill of particulars pursuant to section 330.1; or
6. granting discovery pursuant to section 331.3; or
7. suppressing the use at the fact-finding hearing of any evidence
pursuant to section 330.2; or
8. dismissing a petition, or any count thereof, on the ground that the
respondent has been denied a speedy fact-finding hearing contrary to
section 310.2; or
9. dismissing a petition, or any count thereof, on the ground that the
proceeding is untimely, pursuant to section 302.2; or
10. dismissing a petition, or any count thereof, on the ground that
the proceeding is barred in accordance with the laws applicable pursuant
to section 303.2.
S 332.2. Pre-trial motions; procedure. 1. Except as otherwise
expressly provided in this article, all pre-trial motions shall be filed
within thirty days after the conclusion of the initial appearance and
before commencement of the fact-finding hearing, or within such
additional times as the court may fix upon application of the respondent
made prior to entering a finding pursuant to section 345.1. If the
respondent is not represented by counsel or a law guardian and has
requested an adjournment to retain counsel or to have a law guardian
appointed, such thirty-day period shall commence on the date counsel or
a law guardian initially appears on the respondent`s behalf. A motion
made pursuant to subdivision eight of section 332.1 must be made prior
to the commencement of a fact-finding hearing or the entry of an
admission.
2. All pre-trial motions with supporting affidavits, exhibits and
memoranda of law, if any, shall be included within the same set of
motion papers wherever practicable, and shall be made returnable on the
same date, unless the respondent shows that it would be prejudicial to
the defense were a single judge to consider all such motions. Where one
motion seeks to provide the basis for making another motion, it shall be
deemed impracticable to include both motions in the same set of motion
papers.
3. Notwithstanding the provisions of subdivisions one and two, the
court must entertain and decide on its merits, at any time before the
conclusion of the fact-finding hearing, any appropriate motion based
upon grounds of which the respondent could not, with due diligence, have
been previously aware, or which, for other good cause, could not
reasonably have raised within the period specified in subdivision one.
Any other pre-trial motions made after such thirty day period may be
summarily denied, but the court, in the interest of justice and for good
cause shown may, in its discretion, at any time before a finding is
entered, entertain and dispose of the motion on the merits.
4. If the respondent is detained, the court shall hear and determine
pre-trial motions on an expedited basis.
S 335.1. Notice of defense of mental disease or defect. Evidence of
mental disease or defect of the respondent excluding his responsibility
under this article is not admissible at the fact-finding hearing unless
the respondent serves upon the presentment agency and files with the
court a written notice of intention to rely upon such defense. Such
notice must be served and filed before the fact-finding hearing and not
more than thirty days after the conclusion of the initial appearance,
whichever is sooner. In the interest of justice and for good cause
shown, however, the court may permit such service and filing to be made
at any later time prior to the conclusion of the fact-finding hearing.
S 335.2. Notice of alibi. 1. At any time not more than fifteen days
after the conclusion of the initial appearance and before the
fact-finding hearing the presentment agency may serve upon the
respondent and file a copy thereof with the court, a demand that if the
respondent intends to offer a defense that at the time of the commission
of the crime charged he was at some place or places other than the scene
of the crime, and to call witnesses in support of such defense, he must
within ten days of service of such demand, serve upon such agency, and
file a copy thereof with the court, a "notice of alibi", reciting; (a)
the place or places where the respondent claims to have been at the time
in question, and (b) the names, the residential addresses, the places of
employment and the addresses thereof of every such alibi witness upon
whom he intends to rely. For good cause shown, the court may extend the
period for service of the notice.
2. Within a reasonable time after receipt of the respondent`s witness
list but not later than ten days before the fact-finding hearing, the
presentment agency must serve upon the respondent and file a copy
thereof with the court, a list of witnesses such agency proposes to
offer in rebuttal to discredit the respondent`s alibi at the trial
together with the residential addresses, the places of employment and
the addresses thereof of any such rebuttal witnesses. A witness who will
testify that the respondent was at the scene of the crime is not such an
alibi rebuttal witness. For good cause shown, the court may extend the
period for service.
3. If at the trial the respondent calls such an alibi witness without
having served the demanded notice of alibi, or if having served such a
notice he calls a witness not specified therein, the court may exclude
any testimony of such witness relating to the alibi defense. The court
may in its discretion receive such testimony, but before doing so, it
must, upon application of the presentment agency, grant a reasonable
adjournment.
4. Similarly, if the presentment agency fails to serve and file a list
of any rebuttal witnesses, the provisions of subdivision three shall
reciprocally apply.
5. Both the respondent and the presentment agency shall be under a
continuing duty to promptly disclose the names and addresses of
additional witnesses which come to the attention of either party
subsequent to filing his witness list as provided in this section.
