Section 10.40 - [Effective Until 9/1/2027] Chief administrator to prescribe forms and to authorize use of electronic filing1. The chief administrator of the courts shall have the power to adopt, amend and rescind forms for the efficient and just administration of this chapter. Such forms shall include, without limitation, the forms described in paragraph (z-1) of subdivision two of section two hundred twelve of the judiciary law. A failure by any party to submit papers in compliance with forms authorized by this section shall not be grounds for that reason alone for denial or granting of any motion.2.(a) Notwithstanding any other provision of law, the chief administrator, with the approval of the administrative board of the courts, may promulgate rules authorizing a program in the use of electronic means ("e-filing") in the supreme court and in the county court for (i) the filing with a court of an accusatory instrument for the purpose of commencement of a criminal action or proceeding in a superior court, as provided by articles one hundred ninety-five and two hundred of this chapter, and (ii) the filing and service of papers in pending criminal actions and proceedings. Provided, however, the chief administrator shall consult with the county clerk of a county outside the city of New York before the use of electronic means is to be authorized in the supreme court or county court of such county, afford him or her the opportunity to submit comments with respect thereto, consider any such comments and obtain the agreement thereto of such county clerk.(b)(i) Except as otherwise provided in this paragraph, participation in this program shall be strictly voluntary and will take place only upon consent of all parties in the criminal action or proceeding; except that a party's failure to consent to participation shall not bar any other party to the action from filing and serving papers by electronic means upon the court or any other party to such action or proceeding who has consented to participation. Filing an accusatory instrument by electronic means with the court for the purpose of commencement of a criminal action or proceeding shall not require the consent of any other party; provided, however, that upon such filing any person who is the subject of such accusatory instrument and any attorney for such person shall be permitted to immediately review and obtain copies of such instrument if such person or attorney would have been authorized by law to review or copy such instrument if it had been filed with the court in paper form. No party shall be compelled, directly or indirectly, to participate in e-filing. All parties shall be notified clearly, in plain language, about their options to participate in e-filing. Where a party is not represented by counsel, the clerk shall explain such party's options for electronic filing in plain language, including the option for expedited processing, and shall inquire whether he or she wishes to participate, provided however the unrepresented litigant may participate in the program only upon his or her request, which shall be documented in the case file, after said party has been presented with sufficient information in plain language concerning the program.
(ii) The chief administrator may eliminate the requirement of consent to participation in this program in supreme and county courts of not more than six counties provided he or she may not eliminate such requirement for a court without the consent of the district attorney, the consent of the criminal defense bar as defined in subdivision three of this section and the consent of the county clerk of the county in which such court presides. Notwithstanding the foregoing provisions of this subparagraph, the chief administrator shall not eliminate the requirement of consent to participation in a county hereunder until he or she shall have provided all persons and organizations, or their representative or representatives, who regularly appear in criminal actions or proceedings in the superior court of such county with reasonable notice and opportunity to submit comments with respect thereto and shall have given due consideration to all such comments, nor until he or she shall have consulted with the members of the advisory committee specified in subparagraph (v) of paragraph (u) of subdivision two of section two hundred twelve of the judiciary law.
(c) Where the chief administrator eliminates the requirement of consent as provided in subparagraph (ii) of paragraph (b) of this subdivision, he or she shall afford counsel the opportunity to opt out of the program, via presentation of a prescribed form to be filed with the court where the criminal action is pending. Said form shall permit an attorney to opt out of participation in the program under any of the following circumstances, in which event, he or she will not be compelled to participate: (i) Where the attorney certifies in good faith that he or she lacks appropriate computer hardware and/or connection to the internet and/or scanner or other device by which documents may be converted to an electronic format; or(ii) Where the attorney certifies in good faith that he or she lacks the requisite knowledge in the operation of such computers and/or scanners necessary to participate. For the purposes of this subparagraph, the knowledge of any employee of an attorney, or any employee of the attorney's law firm, office or business who is subject to such attorney's direction, shall be imputed to the attorney. Notwithstanding the foregoing provisions of this paragraph: (A) where a party is not represented by counsel, the clerk shall explain such party's options for electronic filing in plain language, including the option for expedited processing, and shall inquire whether he or she wishes to participate, provided however the unrepresented litigant may participate in the program only upon his or her request, which shall be documented in the case file, after said party has been presented with sufficient information in plain language concerning the program; (B) a party not represented by counsel who has chosen to participate in the program shall be afforded the opportunity to opt out of the program for any reason via presentation of a prescribed form to be filed with the clerk of the court where the proceeding is pending; and (C) a court may exempt any attorney from being required to participate in the program upon application for such exemption, showing good cause therefor.(d)(i) Nothing in this section shall affect or change any existing laws governing the sealing and confidentiality of court records in criminal proceedings or access to court records by the parties to such proceedings, nor shall this section be construed to compel a party to file a sealed document by electronic means.(ii) Notwithstanding any other provision of this section, no paper or document that is filed by electronic means in a criminal proceeding in supreme court or county court shall be available for public inspection on-line. Subject to the provisions of existing laws governing the sealing and confidentiality of court records, nothing herein shall prevent the unified court system from sharing statistical information that does not include any papers or documents filed with the action; and, provided further, that this paragraph shall not prohibit the chief administrator, in the exercise of his or her discretion, from posting papers or documents that have not been sealed pursuant to law on a public website maintained by the unified court system where: (A) the website is not the website established by the rules promulgated pursuant to paragraph (a) of this subdivision, and (B) to do so would be in the public interest. For purposes of this subparagraph, the chief administrator, in determining whether posting papers or documents on a public website is in the public interest, shall, at a minimum, take into account for each posting the following factors: (A) the type of case involved; (B) whether such posting would cause harm to any person, including especially a minor or crime victim; (C) whether such posting would include lewd or scandalous matters; and (D) the possibility that such papers or documents may ultimately be sealed.(iii) Nothing in this section shall affect or change existing laws governing service of process, nor shall this section be construed to abrogate existing personal service requirements as set forth in the criminal procedure law.3. For purposes of this section, the following terms shall have the following meanings: (a) "Consent of the criminal defense bar" shall mean that consent has been obtained from all provider offices and/or organizations in the county that represented twenty-five percent or more of the persons represented by public defense providers pursuant to section seven hundred twenty-two of the county law, as shown in the most recent annual reports filed pursuant to subdivision one of section seven hundred twenty-two-f of the county law. Such consent, when given, must be expressed in a written document that is provided by a person who is authorized to consent on behalf of the relevant public defender organization, agency or office; and(b) "Electronic means" shall be as defined in subdivision (f) of ruletwenty-one hundred three of the civil practice law and rules; and(c) The "filing and service of papers in pending criminal actions and proceedings" shall include the filing and service of a notice of appeal pursuant to section 460.10 of this chapter.N.Y. Crim. Proc. Law § 10.40
Amended by New York Laws 2022, ch. 554, Sec. 1, eff. 8/31/2022.Amended by New York Laws 2021, ch. 118, Sec. 1, eff. 6/11/2021.Amended by New York Laws 2020, ch. 102, Sec. 1, eff. 12/12/2020.Amended by New York Laws 2020, ch. 58, Sec. XXX-B-SS-1, eff. 4/3/2020.Amended by New York Laws 2019, ch. 212, Sec. 1, eff. 8/29/2019.Amended by New York Laws 2017, ch. 55, Sec. BB-7, eff. 7/19/2017.Amended by New York Laws 2015, ch. 237, Sec. 4, eff. 8/31/2015, exp. 9/1/2027.This section is set out more than once due to postponed, multiple, or conflicting amendments.