N.Y. Crim. Proc. Law § 10.40

* § 10.40 Chief administrator to prescribe forms and to authorize use of\n electronic filing.\n 1. The chief administrator of the courts shall have the power to\nadopt, amend and rescind forms for the efficient and just administration\nof this chapter. A failure by any party to submit papers in compliance\nwith forms authorized by this section shall not be grounds for that\nreason alone for denial or granting of any motion.\n 2. (a) Notwithstanding any other provision of law, the chief\nadministrator, with the approval of the administrative board of the\ncourts, may promulgate rules authorizing a program in the use of\nelectronic means ("e-filing") in the supreme court and in the county\ncourt for (i) the filing with a court of an accusatory instrument for\nthe purpose of commencement of a criminal action or proceeding in a\nsuperior court, as provided by articles one hundred ninety-five and two\nhundred of this chapter, and (ii) the filing and service of papers in\npending criminal actions and proceedings. Provided, however, the chief\nadministrator shall consult with the county clerk of a county outside\nthe city of New York before the use of electronic means is to be\nauthorized in the supreme court or county court of such county, afford\nhim or her the opportunity to submit comments with respect thereto,\nconsider any such comments and obtain the agreement thereto of such\ncounty clerk.\n (b) (i) Except as otherwise provided in this paragraph, participation\nin this program shall be strictly voluntary and will take place only\nupon consent of all parties in the criminal action or proceeding; except\nthat a party's failure to consent to participation shall not bar any\nother party to the action from filing and serving papers by electronic\nmeans upon the court or any other party to such action or proceeding who\nhas consented to participation. Filing an accusatory instrument by\nelectronic means with the court for the purpose of commencement of a\ncriminal action or proceeding shall not require the consent of any other\nparty; provided, however, that upon such filing any person who is the\nsubject of such accusatory instrument and any attorney for such person\nshall be permitted to immediately review and obtain copies of such\ninstrument if such person or attorney would have been authorized by law\nto review or copy such instrument if it had been filed with the court in\npaper form.\n No party shall be compelled, directly or indirectly, to participate in\ne-filing. All parties shall be notified clearly, in plain language,\nabout their options to participate in e-filing. Where a party is not\nrepresented by counsel, the clerk shall explain such party's options for\nelectronic filing in plain language, including the option for expedited\nprocessing, and shall inquire whether he or she wishes to participate,\nprovided however the unrepresented litigant may participate in the\nprogram only upon his or her request, which shall be documented in the\ncase file, after said party has been presented with sufficient\ninformation in plain language concerning the program.\n (ii) The chief administrator may eliminate the requirement of consent\nto participation in this program in supreme and county courts of not\nmore than six counties provided he or she may not eliminate such\nrequirement for a court without the consent of the district attorney,\nthe consent of the criminal defense bar as defined in subdivision three\nof this section and the consent of the county clerk of the county in\nwhich such court presides.\n Notwithstanding the foregoing provisions of this subparagraph, the\nchief administrator shall not eliminate the requirement of consent to\nparticipation in a county hereunder until he or she shall have provided\nall persons and organizations, or their representative or\nrepresentatives, who regularly appear in criminal actions or proceedings\nin the superior court of such county with reasonable notice and\nopportunity to submit comments with respect thereto and shall have given\ndue consideration to all such comments, nor until he or she shall have\nconsulted with the members of the advisory committee specified in\nsubparagraph (v) of paragraph (t) of subdivision two of section two\nhundred twelve of the judiciary law.\n (c) Where the chief administrator eliminates the requirement of\nconsent as provided in subparagraph (ii) of paragraph (b) of this\nsubdivision, he or she shall afford counsel the opportunity to opt out\nof the program, via presentation of a prescribed form to be filed with\nthe court where the criminal action is pending. Said form shall permit\nan attorney to opt out of participation in the program under any of the\nfollowing circumstances, in which event, he or she will not be compelled\nto participate:\n (i) Where the attorney certifies in good faith that he or she lacks\nappropriate computer hardware and/or connection to the internet and/or\nscanner or other device by which documents may be converted to an\nelectronic format; or\n (ii) Where the attorney certifies in good faith that he or she lacks\nthe requisite knowledge in the operation of such computers and/or\nscanners necessary to participate. For the purposes of this\nsubparagraph, the knowledge of any employee of an attorney, or any\nemployee of the attorney's law firm, office or business who is subject\nto such attorney's direction, shall be imputed to the attorney.\n Notwithstanding the foregoing provisions of this paragraph: (A) where\na party is not represented by counsel, the clerk shall explain such\nparty's options for electronic filing in plain language, including the\noption for expedited processing, and shall inquire whether he or she\nwishes to participate, provided however the unrepresented litigant may\nparticipate in the program only upon his or her request, which shall be\ndocumented in the case file, after said party has been presented with\nsufficient information in plain language concerning the program; (B) a\nparty not represented by counsel who has chosen to participate in the\nprogram shall be afforded the opportunity to opt out of the program for\nany reason via presentation of a prescribed form to be filed with the\nclerk of the court where the proceeding is pending; and (C) a court may\nexempt any attorney from being required to participate in the program\nupon application for such exemption, showing good cause therefor.\n (d)(i) Nothing in this section shall affect or change any existing\nlaws governing the sealing and confidentiality of court records in\ncriminal proceedings or access to court records by the parties to such\nproceedings, nor shall this section be construed to compel a party to\nfile a sealed document by electronic means.\n (ii) Notwithstanding any other provision of this section, no paper or\ndocument that is filed by electronic means in a criminal proceeding in\nsupreme court or county court shall be available for public inspection\non-line. Subject to the provisions of existing laws governing the\nsealing and confidentiality of court records, nothing herein shall\nprevent the unified court system from sharing statistical information\nthat does not include any papers or documents filed with the action;\nand, provided further, that this paragraph shall not prohibit the chief\nadministrator, in the exercise of his or her discretion, from posting\npapers or documents that have not been sealed pursuant to law on a\npublic website maintained by the unified court system where: (A) the\nwebsite is not the website established by the rules promulgated pursuant\nto paragraph (a) of this subdivision, and (B) to do so would be in the\npublic interest. For purposes of this subparagraph, the chief\nadministrator, in determining whether posting papers or documents on a\npublic website is in the public interest, shall, at a minimum, take into\naccount for each posting the following factors: (A) the type of case\ninvolved; (B) whether such posting would cause harm to any person,\nincluding especially a minor or crime victim; (C) whether such posting\nwould include lewd or scandalous matters; and (D) the possibility that\nsuch papers or documents may ultimately be sealed.\n (iii) Nothing in this section shall affect or change existing laws\ngoverning service of process, nor shall this section be construed to\nabrogate existing personal service requirements as set forth in the\ncriminal procedure law.\n 3. For purposes of this section, the following terms shall have the\nfollowing meanings:\n (a) "Consent of the criminal defense bar" shall mean that consent has\nbeen obtained from all provider offices and/or organizations in the\ncounty that represented twenty-five percent or more of the persons\nrepresented by public defense providers pursuant to section seven\nhundred twenty-two of the county law, as shown in the most recent annual\nreports filed pursuant to subdivision one of section seven hundred\ntwenty-two-f of the county law. Such consent, when given, must be\nexpressed in a written document that is provided by a person who is\nauthorized to consent on behalf of the relevant public defender\norganization, agency or office; and\n (b) "Electronic means" shall be as defined in subdivision (f) of rule\ntwenty-one hundred three of the civil practice law and rules; and\n (c) The "filing and service of papers in pending criminal actions and\nproceedings" shall include the filing and service of a notice of appeal\npursuant to section 460.10 of this chapter.\n * NB Effective until September 1, 2019\n* § 10.40 Chief administrator to prescribe forms.\n The chief administrator of the courts shall have the power to adopt,\namend and rescind forms for the efficient and just administration of\nthis chapter. A failure by any party to submit papers in compliance with\nforms authorized by this section shall not be grounds for that reason\nalone for denial or granting of any motion.\n * NB Effective September 1, 2019\n