N.Y. Comp. Codes R. & Regs. tit. 9 § 516.7

Current through Register Vol. 46, No. 25, June 18, 2024

Section 516.7 - Pretrial matters

(a)Discovery.

(1) Disclosure by the trial counsel.

Except as otherwise provided in paragraph (6) and subparagraph (7)(ii) of this subdivision, the trial counsel must provide the following information or matters to the defense.

(i) Papers accompanying charges; convening order; statements. As soon as practicable after service of charges under N.Y.R.C.M. 602, the trial counsel must provide the defense with copies of, or, if extraordinary circumstances make it impracticable to provide copies, permit the defense to inspect:

(a) any paper which accompanied the charges when they were referred to the court-martial, including papers sent with charges upon a rehearing or new trial;

(b) the convening order and any amending orders; and

(c) any sworn or signed statement relating to an offense charged in the case which is in the possession of the trial counsel.

(ii) Documents, tangible objects, reports. After service of charges, upon request of the defense, the trial counsel must permit the defense to inspect:

(a) any books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of military authorities, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial, or were obtained from or belong to the accused; and

(b) any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of military authorities, the existence of which is known, or by the exercise of due diligence may become known, to the trial counsel, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial.

(iii) Witnesses. Before the beginning of trial on the merits the trial counsel must notify the defense of the names and addresses of the witnesses the trial counsel intends to call:

(a) in the prosecution case-in-chief; and

(b) to rebut a defense of alibi or lack of mental responsibility, when trial counsel has received timely notice under subparagraph (2)(i) or (ii) of this subdivision.

(iv) Prior convictions of accused offered on the merits. Before arraignment the trial counsel must notify the defense of any records of prior civilian or court-martial convictions of the accused of which the trial counsel is aware and which the trial counsel may offer on the merits for any purpose, including impeachment, and must permit the defense to inspect such records when they are in the trial counsel's possession.

(v) Information to be offered at sentencing. Upon request of the defense the trial counsel must:

(a) permit the defense to inspect such written material as will be presented by the prosecution at the presentencing proceedings; and

(b) notify the defense of the names and addresses of the witnesses the trial counsel intends to call at the presentencing proceedings under N.Y.R.C.M. 1001(b).

(vi) Evidence favorable to the defense. The trial counsel must, as soon as practicable, disclose to the defense the existence of evidence known to the trial counsel which reasonably tends to:

(a) negate the guilt of the accused to an offense charged;

(b) reduce the degree of guilt of the accused to an offense charged; or

(c) reduce the punishment.

(2) Disclosure by the defense.

Except as otherwise provided in paragraph (6) and subparagraph (7)(ii) of this subdivision, the defense must provide the following information to the trial counsel:

(i) Notice of alibi. The defense must notify the trial counsel before the beginning of trial on the merits of its intent to offer a defense of alibi. Such notice by the defense must disclose the specific place or places at which the defense claims the accused to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the accused intends to rely to establish such alibi.

(ii) Mental responsibility. If the defense intends to rely upon the defense of lack of mental responsibility or to introduce expert testimony relating to the defense of lack of mental responsibility, the defense must, before the beginning of trial on the merits, notify the trial counsel of such intention.

(iii) Documents and tangible objects. If the defense requests disclosure under clause (1)(ii)(a) of this subdivision, upon compliance with such request by the Government, the defense, on request of the trial counsel, must permit the trial counsel to inspect books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defense and which the defense intends to introduce as evidence in the defense case-in-chief at trial.

(iv) Reports of examination and tests. If the defense requests disclosure under clause (1)(ii)(b) of this subdivision, upon compliance with such request by the government, the defense, on request of the trial counsel, must (except as provided in N.Y.R.C.M. 706 and Mil. R. Evid. 302) permit the trial counsel to inspect any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, which are within the possession, custody, or control or the defense which the defense intends to introduce as evidence in the defense case-in-chief at trial or which were prepared by a witness whom the defense intends to call at trial when the results or reports relate to that witness' testimony.

(v) Inadmissibility of withdrawn defense. If an intention to rely upon a defense under subparagraph (i) or (ii) of this paragraph is withdrawn, evidence of such intention and disclosures by the accused or defense counsel made in connection with such intention is not admissible in any court-martial against the accused who gave notice of the intention.

(3) Failure to call witness.

The fact that a witness' name is on a list of expected or intended witnesses provided to an opposing party, whether required by this subdivision or not, is not ground for comment upon a failure to call the witness.

(4) Continuing duty to disclose.

If, before or during the court-martial, a party discovers additional evidence or material previously requested or required to be produced, which is subject to discovery or inspection under this subdivision, that party must promptly notify the other party or the military judge of the existence of the additional evidence or material.

(5) Access to witnesses and evidence.

Each party must have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence. No party may unreasonably impede the access of another party to a witness or evidence.

(6) Information not subject to disclosure.

Nothing in this subdivision is to be construed to require the disclosure of information protected from disclosure by the Military Rules of Evidence. Nothing in this rule requires the disclosure or production of notes, memoranda, or similar working papers prepared by counsel and counsel's assistants and representatives.

(7) Regulation of discovery.

(i) Time, place, and manner. The military judge may, consistent with this rule, specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just.

(ii) Protective and modifying orders. Upon a sufficient showing the military judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the military judge may permit the party to make such showing, in whole or in part, in writing to be inspected only by the military judge. If the military judge grants relief after such an ex parte showing, the entire text of the party's statement must be sealed and attached to the record of trial as an appellate exhibit. Such material may be examined by reviewing authorities in closed proceedings for the purpose of reviewing the determination of the military judge.

(iii) Failure to comply. If at any time during the court-martial it is brought to the attention of the military judge that a party has failed to comply with this subdivision, the military judge may take one or more of the following actions:

(a) order the party to permit discovery;

(b) grant a continuance;

(c) prohibit the party from introducing evidence or raising a defense not disclosed; and

(d) enter such other order as is just under the circumstances.

This subdivision does not limit the right of the accused to testify in the accused's behalf.

(8) Inspect.

As used in this subdivision inspect includes the right to photograph and copy.

(b)Depositions.

(a) In general.

A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at an investigation under 130.32, ML or a court-martial (See 130.49, ML).

(2) Who may order.

A convening authority who has the charges for disposition or, after referral, the convening authority or the military judge may order that a deposition be taken on request of a party.

(3) Request to take deposition.

(i) Submission of request. At any time after charges have been preferred, any party may request in writing that a deposition be taken.

(ii) Contents of request. A request for a deposition must include:

(a) the name and address of the person whose deposition is requested, or, if the name of the person is unknown, a description of the office or position of the person;

(b) a statement of the matters on which the person is to be examined;

(c) a statement of the reasons for taking the deposition; and

(d) whether an oral or written deposition is requested.

(iii) Action on request.

(a) In general. A request for a deposition may be denied only for good cause.

(b) Written deposition. A request for a written deposition may not be approved without the consent of the opposing party except when the deposition is ordered solely in lieu of producing a witness for sentencing under N.Y.R.C.M. 1001 and the authority ordering the deposition determines that the interests of the parties and the court-martial can be adequately served by a written deposition.

(c) Notification of decision. The authority who acts on the request must promptly inform the requesting party of the action on the request and, if the request is denied, the reasons for denial.

(d) Waiver. Failure to renew before the military judge a request for a deposition denied by a convening authority waives further consideration of the request.

(4) Action when request is approved.

(i) Detail of deposition officer. When a request for a deposition is approved, the convening authority must cause the deposition to be taken before and authenticated by any military or civil officers authorized by the laws of the State or by the laws of the place where the deposition is taken to administer oaths.

(ii) Assignment of counsel. If charges have not yet been referred to a court-martial when a request to take a deposition is approved, the convening authority who directed the taking of the deposition must ensure that counsel qualified as required under N.Y.R.C.M. 502(d) are assigned to represent each party.

(iii) Instructions. The convening authority may give instructions not inconsistent with this subdivision to the deposition officer.

(5) Notice.

The party at whose request a deposition is to be taken must give to every other party reasonable written notice of the time and place for taking the deposition and the name and address of each person to be examined. On motion of a party upon whom the notice is served the deposition officer may, for cause shown, extend or shorten the time or change the place for taking the deposition, consistent with any instructions from the convening authority.

(6) Duties of the deposition officer.

In accordance with this subdivision, and subject to any instructions under subparagraph (4)(iii) of this subdivision, the deposition officer must:

(i) arrange a time and place for taking the deposition and notify the party who requested the deposition accordingly;

(ii) arrange for the presence of any witness whose deposition is to be taken in accordance with the procedures for production of witnesses and evidence under N.Y.R.C.M. 703(e);

(iii) maintain order during the deposition and protect the parties and witnesses from annoyance, embarrassment, or oppression;

(iv) administer the oath to each witness, the reporter, and interpreter, if any;

(v) in the case of a written deposition, ask the questions submitted by counsel to the witness;

(vi) cause the proceedings to be recorded so that a verbatim or videotaped record is made or may be prepared;

(vii) record, but not rule upon, objections or motions and the testimony to which they relate;

(viii) authenticate the record of the deposition and forward it to the authority who ordered the deposition; and

(ix) report to the convening authority any substantial irregularity in the proceeding.

(7) Procedure.

(i) Oral depositions.

(a) Rights of accused. At an oral deposition, the accused has the rights to:

(1) be present except when:

(i) the accused, absent good cause shown, fails to appear after receiving notice of time and place of the deposition;

(ii) the accused is disruptive within the meaning of N.Y.R.C.M. 804(b)(2); or

(iii) the deposition is ordered in lieu of production of a witness on sentencing under N.Y.R.C.M. 1001 and the authority ordering the deposition determines that the interests of the parties and the court-martial can be served adequately by an oral deposition without the presence of the accused; and

(2) be represented by counsel as provided in N.Y.R.C.M. 506.

(b) Examination of witnesses. Each witness giving an oral disposition must be examined under oath. The scope and manner of examination and cross-examination must be such as would be allowed in the trial itself. The government must make available to each accused for examination and use at the taking of the deposition any statement of the witness which is in the possession of the State or other document and to which the accused would be entitled at the trial.

(ii) Written depositions.

(a) Rights of accused. The accused has the right to be represented by counsel as provided in N.Y.R.C.M. 506 for the purpose of taking a written deposition, except when the deposition is taken for use at a summary court-martial.

(b) Presence of parties. No party has a right to be present at a written deposition.

(c) Submission of interrogatories to opponent. The party requesting a written deposition must submit to opposing counsel a list of written questions to be asked of the witness. Opposing counsel may examine the questions and must be allowed a reasonable time to prepare cross interrogatories and objections, if any.

(d) Examination of witness. The deposition officer must swear the witness, read each question presented by the parties to the witness, and record each response. The testimony of the witness must be recorded on videotape, audiotape, or similar material or must be transcribed. When the testimony is transcribed, the deposition must, except when impracticable, be submitted to the witness for examination. The deposition officer may enter additional matters then stated by the witness under oath. The deposition must be signed by the witness if the witness is available. If the deposition is not signed by the witness, the deposition officers must record the reason. The certificate of authentication must then be executed.

(iii) How recorded. In the discretion of the authority who ordered the deposition, a deposition may be recorded by a reporter or by other means including videotape, audiotape, or sound film. In the discretion of the military judge, depositions recorded videotape, audiotape, or sound film may be played for the court-martial or may be transcribed and read to the court-martial.

(8) Objections.

(i) In general. A failure to object prior to the deposition to the taking of the deposition on grounds which may be corrected if the objection is made prior to the deposition waives such objection.

(ii) Oral depositions. Objections to questions, testimony, or evidence at an oral deposition and the grounds for such objection must be stated at the time of taking such deposition. If an objection relates to a matter which could have been corrected if the objection had been made during the deposition, the objection is waived if not made at the deposition.

(iii) Written depositions. Objections to any question in written interrogatories are to be served on the party who proposed the question before the interrogatories are sent to the deposition officer of the objection is waived. Objections to answers in a written deposition may be made at trial.

(9) Deposition by agreement not precluded.

(i) Taking deposition. Nothing in this subdivision precludes the taking of a deposition without cost to the State, orally or upon written questions, by agreement of the parties.

(ii) Use of deposition. Subject to 130.49(d), ML, nothing in this rule precludes the use of a deposition at the court-martial by agreement of the parties unless the military judge forbids its use for good cause.

(c)Production of witnesses and evidence.

(1) In general.

The prosecution and defense and the court-martial are to have equal opportunity to obtain witnesses and evidence, including the benefit of compulsory process. Compulsory process runs to any part of the State and to any other state in which the court-martial may be sitting (see 130.46, ML). Military courts are empowered to issue all process and mandates necessary and proper to carry into full force and effect the powers vested in them (ML, 131.7[a]).

(2) Right to witnesses.

(i) On the merits or on interlocutory questions. Each party is entitled to the production of any witness whose testimony on a matter in issue on the merits or on an interlocutory question would be relevant and necessary.

(ii) On sentencing. Each party is entitled to the production of witness whose testimony on sentencing is required under N.Y.R.C.M. 1001(e).

(iii) Unavailable witness. Notwithstanding subparagraphs (i) and (ii) of this paragraph, a party is not entitled to the presence of a witness who is unavailable within the meaning of Mil. R. Evid. 804(a). However, if the testimony of a witness who is unavailable is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such testimony, the military judge must grant a continuance or other relief in order to attempt to secure the witness' presence or must abate the proceedings, unless the unavailability of the witness is the fault of or could have been prevented by the requesting party.

(3) Determining which witness will be produced.

(i) Witnesses for the prosecution. The trial counsel must obtain the presence of witnesses whose testimony the trial counsel considers relevant and necessary for the prosecution.

(ii) Witnesses for the defense.

(a) Request. The defense must submit to the trial counsel a written list of witnesses whose production by the State the defense requests.

(b) Contents of request.

(1) Witnesses on merits or interlocutory questions. A list of witnesses whose testimony the defense considers relevant and necessary on the merits or on an interlocutory question must include the name, telephone number, if known, an address or location of the witness such that the witness can be found upon the exercise of due diligence and a synopsis of the expected testimony sufficient to show its relevance and necessity.

(2) Witnesses on sentencing. A list of witnesses wanted for presentencing proceedings must include the name, telephone number, if known, and address or location of the witness such that the witness can be found upon the exercise of due diligence, a synopsis of the testimony that it is expected the witness will give, and the reasons why the witness' personal appearance will be necessary under the standards set forth in N.Y.R.C.M. 1001(e).

(c) Time of request. A list of witnesses under this subsection must be submitted in time reasonably to allow production of each witness on the date when the witness' presence will be necessary. The military judge may set a specific date by which such lists must be submitted. Failure to submit the name of a witness in a timely manner permits denial of a motion for production of the witness, but relief from such denial may be granted for good cause shown.

(d) Determination. The trial counsel must arrange for the presence of any witness listed by the defense unless the trial counsel contends that the witness' production is not required under this subdivision. If the trial counsel contends that the witness' production is not required by this subdivision, the matter may be submitted to the military judge. If the military judge grants a motion for a witness, the trial counsel must produce the witness or the proceedings will be abated.

(4) Employment of expert witnesses.

When the employment at State expense of an expert is considered necessary by a party, the party must, in advance of employment of the expert, and with notice to the opposing part, submit a request to the Adjutant General of the State to authorize the employment and to fix the compensation for the expert. The request must include a complete statement of reasons why employment of the expert is necessary and the estimated cost of employment. A request denied by the Adjutant General of the State may be renewed before the military judge who must determine whether the testimony of the expert is relevant and necessary, and if so, whether the State has provided or will provide an adequate substitute. If the military judge grants a motion for employment of an expert or finds that the State is required to provide a substitute, the proceedings will be abated if the State fails to comply with the ruling. In the absence of advance authorization, an expert witness may not be paid fees other than those to which entitled under clause (5)(ii)( d) of this subdivision.

(5) Procedures for production of witnesses.

(i) Military witnesses. The attendance of a military witness may be obtained by notifying the commander of the witness of the time, place, and date the witness' presence is required and requesting the commander to issue any necessary orders to the witness.

(ii) Civilian witnesses-subpoena.

(a) In general. The presence of witnesses not on active State duty or on a duty status other than active State duty may be obtained by subpoena.

(b) Contents. A subpoena must state the command by which the proceding is directed, and the title, if any, of the proceeding. A subpoena must command each person to whom it is directed to attend and give testimony at the time and place specified therein. A subpoena may also command the person to whom it is directed to produce books, papers, documents or other objects designated therein at the proceeding or at an earlier time for inspection by the parties.

(c) Who may issue. A subpoena may be issued by the summary court-martial, provost courts, and the military judge or president of other military courts to secure witnesses or evidence for that court-martial.

(d) Service. A subpoena may be served by any person at least 18 years of age; the marshals of the military court or any peace officer as defined in section 2.10 of the Criminal Procedure Law, when acting pursuant to his special duties, or any police officer. Service is made by delivering a copy of the subpoena to the person named and by tendering to the person named the fees and mileage of a witness at the rates allowed to witnesses attending the Supreme Court of the State (See CPLR 8001). (See Appendices 4 and 5 for format.)

(e) Place for service.

(1) In general. A subpoena requiring the attendance of a witness at a deposition, court-martial, or court of inquiry may be served at any place within the State or within any other state in which the court-martial may be sitting.

(2) Foreign territory. In foreign territory, the attendance of civilian witnesses may be obtained in accordance with existing agreements or, in the absence of agreements, with principles of international law.

(3) Occupied territory. In occupied enemy territory, the appropriate commander may compel the attendance of civilian witnesses located within the occupied territory.

(f) Relief. If a person subpoenaed requests relief on grounds that compliance is unreasonable or oppressive, the convening authority or, after referral, the military judge may direct that the subpoena be modified or withdrawn if appropriate.

(g) Neglect or refusal to appear.

(1) In general. A person not on active State duty or in a duty status other than active State duty who willfully neglects or refuses to appear, or refuses to qualify as a witness or to testify or produce any evidence which such person may have been subpoenaed to produce is guilty of an offense against the State and may be punished by the military court which issued the subpoena in the same manner and to the same extent as provided for the failure to appear, refusal and to qualify as a witness or to testify or refusal or failure to produce any evidence which such person may have been duly subpoenaed to produce, as provided in actions or proceedings in the Supreme Court of the State (ML, 130.47[a][3]).

(2) Issuance of warrant of attachment. The military judge or, if there is no military judge, the convening authority may, in accordance with this subdivision, issue a warrant of attachment to compel the attendance of a witness or production of documents (ML, 131.7[a]).

(3) Requirements. A warrant of attachment be issued only upon probable cause to believe that the witness was duly served with a subpoena, that the subpoena was issued in accordance with these rules, that appropriate fees and mileage were tendered to the witness, that the witness is material, that the witness refused or willfully neglected to appear at the time and place specified on the subpoena, and that no valid excuse reasonably appear; for the witness' failure to appear.

(4) Form. A warrant of attachment must be written. All documents in support of the warrant of attachment must be attached to the warrant, together with the charge sheet and convening orders.

(5) Execution. A warrant of attachment may be executed by a person authorized under paragraph (5)(ii)(d) of this subdivision as the authority issuing the warrant may direct. Only such nondeadly force as may be necessary to bring the witness before the court-martial or other proceeding may be used to execute the warrant. A witness attached under this subdivision must be brought before the court-martial or proceeding without delay and must testify as soon as practicable and be released.

(6) Definition. For purposes of clause (g) of this subparagraph military judge does not include a summary court-martial or the president of a special court-martial without a military judge.

(6) Right to evidence.

(i) In general. Each party is entitled to the production of evidence which is relevant and necessary.

(ii) Unavailable evidence. Notwithstanding subparagraph (i) of this paragraph, a party is not entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process. However, if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, military judge must grant a continuance or other relief in order to produce the evidence or must abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party.

(iii) Determining what evidence will be produced. The procedures in paragraph (3) of this subdivision apply to a determination of what evidence will be produced, except that any defense request for the production of evidence must list the items of evidence to be produced and must include a description of each item sufficient to show its relevance and necessity, a statement where it can be obtained, and, if known, the name, address, and telephone number of the custodian of the evidence.

(iv) Procedures for production of evidence.

(a) Evidence under the control of the State. Evidence under the control of the State may be obtained by notifying the custodian of the evidence of the time, place, and date the evidence is required and requesting the custodian to send or deliver the evidence.

(b) Evidence not under the control of the State. Evidence not under the control of the State may be obtained by subpoena issued in accordance with subparagraph (5)(ii) of this subdivision.

(c) Relief. If the person having custody of evidence requests relief on grounds that compliance with the subpoena or order of production is unreasonable or oppressive, the convening authority or, after referral, the military judge may direct that the subpoena or order of production be withdrawn or modified. Subject to Mil. R. Evid. 505 and 506, the military judge may direct that the evidence be submitted to the military judge for an in camera inspection in order to determine whether such relief should be granted.

(d)Immunity.

(1) Types of immunity. Two types of immunity may be granted under this rule.

(i) Transactional immunity. A person may be granted transactional immunity from trial by court-martial for one or more offenses under the code.

(ii) Testimonial immunity. A person may be granted immunity from the use of testimony, statements, and any information directly or indirectly derived from such testimony or statements by that person in a later court-martial.

(2) Scope.

Nothing in this subdivision bars:

(i) a later court-martial for perjury, false swearing, making a false official statement, or failure to comply with an order to testify; or

(ii) use in a court-martial under subparagraph (ii) of this paragraph of testimony or statements derived from such testimony or statements.

(3) Authority to grant immunity.

Only a general court-martial convening authority may grant immunity, and may do so only in accordance with this subdivision.

(i) Persons subject to the code. A general court-martial convening authority may grant immunity to any person subject to the code. However, a general court-martial convening authority may not grant immunity as to any prosecution in any court of the State having appropriate criminal or civil jurisdiction except when specifically authorized to do so by the person or authority empowered by law to prosecute such criminal or civil action in any such court.

(ii) Persons not subject to the code. A general court-martial convening authority may grant immunity to persons not subject to the code only when specifically authorized to do so by the person or authority empowered by law to prosecute in any court of the State having appropriate criminal or civil jurisdiction.

(iii) Other limitations. The authority to grant immunity under this subdivision may not be delegated. The authority to grant immunity may be limited by superior authority.

(4) Procedure.

A grant of immunity must be written and signed by the convening authority who issues it. The grant must include a statement of the authority under which it is made and must identify the matters to which it extends.

(5) Decision to grant immunity.

Unless limited by superior competent authority, the decision whether to grant immunity is a matter within the sole discretion of the appropriate general court-martial convening authority However, if a defense request to immunize a witness has been denied, the military judge may, upon motion by the defense, grant appropriate relief directing that either an appropriate convening authority grant testimonial immunity to a defense witness or, as to the affected charges and specifications, the proceedings against the accused be abated, upon findings that:

(i) the witness' testimony would be of such central importance to the defense case that it is essential to a fair trial; and

(ii) the witness intends to invoke the right against self-incrimination to the extent permitted by law if called to testify.

(e)Pretrial agreements.

(1) In general.

Subject to such limitations as the Chief of Staff to the Governor may prescribe, an accused and the convening authority may enter into a pretrial agreement in accordance with this subdivision.

(2) Nature of agreement.

A pretrial agreement may include:

(i) a promise by the accused to plead guilty to, or to enter a confessional stipulation as to one or more charges and specifications, and to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under this subdivision; and

(ii) a promise by the convening authority to do one or more of the following:

(a) refer the charges to a certain type of court-martial;

(b) refer a capital offense as noncapital;

(c) withdraw one or more charges or specifications from the court-martial;

(d) have the trial counsel present no evidence as to one or more specifications or portions thereof; and

(e) take specified action on the sentence adjudged by the court-martial.

(3) Terms and conditions.

(i) Prohibited terms or conditions.

(a) Not voluntary. A term or condition in a pretrial agreement cannot be enforced if the accused did not freely and voluntarily agree to it.

(b) Deprivation of certain rights. A term or condition in a pretrial agreement cannot be enforced if it deprives the accused of: the right to counsel; the right to due process; the right to challenge the jurisdiction of the court-martial; the right to a speedy trial; the right to complete sentencing proceedings; the complete and effective exercise of post-trial and appellate rights.

(ii) Permissible terms or conditions. Subject to clause (i)(a) of this paragraph, clause (i)(b) of this paragraph does not prohibit an accused from offering the following additional conditions with an offer to plead guilty:

(a) a promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or as to which a confessional stipulation will be entered;

(b) a promise to testify as a witness in the trial of another person;

(c) a promise to provide restitution;

(d) a promise to conform the accused's conduct to certain conditions of probation before action by the convening authority as well as during any period of suspension of the sentence, provided that the requirements of N.Y.R.C.M. 1109 must be complied with before an alleged violation of such terms may relieve the convening authority of the obligation to fulfill the agreement; and

(e) a promise to waive procedural requirements such as under ML, 130.32, the right to trial by court-martial composed of members or the right to request trial by military judge alone, or the opportunity to obtain the personal appearance of witnesses at sentencing proceedings.

(4) Procedure.

(i) Offer. An offer to plead guilty or to enter a confessional stipulation must originate with the accused and defense counsel, if any.

(ii) Negotiation. Upon the initiation of the defense, the convening authority, the staff judge advocate, or the trial counsel may negotiate the terms and conditions of a pretrial agreement with the defense. All negotiations are to be with defense counsel unless the accused is not represented.

(iii) Formal submission. After negotiation, if any, under subparagraph (ii) of this paragraph, if the accused elects to propose a pretrial agreement, the defense must submit a written offer. All terms, conditions, and promises between the parties must be written. The proposed agreement must be signed by the accused and defense counsel, if any. If the agreement contains any specified action on the adjudged sentence, such action must be set forth on a page separate from the other portion of the agreement.

(iv) Acceptance. The convening authority may either accept or reject an offer of the accused to enter into a pretrial agreement. The decision is within the sole discretion of the convening authority. When the convening authority has accepted a pretrial agreement, the agreement must be signed by the convening authority or by a person, such as the staff judge advocate or trial counsel, who has been authorized by the convening authority to sign.

(v) Withdrawal.

(a) By accused. The accused may withdraw from a pretrial agreement at any time; however, the accused may withdraw a plea of guilty or a confessional stipulation entered pursuant to a pretrial agreement only as provided in N.Y.R.C.M. 910(h) or 811(d), respectively.

(b) By convening authority. The convening authority may withdraw from a pretrial agreement at any time before the accused begins performance of promises contained in the agreement, or upon the failure by the accused to fulfill any material promise or condition in the agreement, or when inquiry by the military judge discloses a disagreement as to a material term in the agreement, or if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review.

(5) Nondisclosure of existence of agreement.

Except in a special court-martial without a military judge, no member of a court-martial is to be informed of the existence of a pretrial agreement. In addition, except as provided in Mil. R. Evid. 410, the fact that an accused offered to enter into a pretrial agreement, and any statements made by an accused in connection therewith, whether during negotiations or during a providence inquiry, must not be otherwise disclosed to the members.

(f)Inquiry into the mental capacity or mental responsibility of the accused.

(1) Initial action.

If it appears to any commander who considers the disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation must be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by an application for a mental examination under this subdivision.

(2) Ordering an inquiry.

(i) Before referral. Before referral of charges an inquiry into the mental capacity or mental responsibility of the accused may be ordered by the convening authority before whom the charges are pending for disposition.

(ii) After referral. After referral of charges, an inquiry into the mental capacity or mental responsibility of the accused may be ordered by the military judge. The convening authority may order such an inquiry after referral of charges but before beginning of the first session of the court-martial (including any session under 130.39[a], ML) when the military judge is not reasonably available. The military judge may order a mental examination of the accused regardless of any earlier determination by the convening authority.

(3) Inquiry.

(i) By whom conducted. When a mental examination is ordered under paragraph (2) of this subdivision, the matter must be referred to a board consisting of one or more persons. Each member of the board shall be either a physician or a clinical psychologist. Normally at least one member of the board shall be either a psychiatrist or clinical psychologist. The Board shall report as to the mental capacity or mental responsibility or both of the accused.

(ii) Matters in inquiry. When a mental examination is ordered under this subdivision, the order must contain the reasons for doubting the mental capacity or mental responsibility, or both, of the accused, or other reasons for requesting the examination. In addition to other requirements, the order must require the board to make separate and distinct findings as to each of the following questions:

(a) At the time of the alleged criminal conduct, did the accused have a severe mental disease or defect? (The term "severe mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior disorders and personality defects.)

(b) What is the clinical psychiatric diagnosis?

(c) Was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his or her conduct?

(d) Did the accused, at the time of the alleged criminal conduct and as a result of such mental disease or defect, lack substantial capacity to conform the accused's conduct to the requirements of law?

(e) Does the accused have sufficient mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense?

Other appropriate questions may also be included.

(iii) Directions to board. In addition to the requirements specified in subparagraph (ii) of this paragraph, the order of the board must specify:

(a) that upon completion of the board's investigation, a statement consisting only of the board's ultimate conclusions as to all questions specified in the order is to be submitted to the officer ordering the examination, the accused's commanding officer, the investigating officer, if any, appointed pursuant to 130.32, ML and to all counsel in the case, the convening authority, and, after referral, to the military judge;

(b) that the full report of the board may be released by the board or other medical personnel only to other medical personnel for medical purposes, unless otherwise authorized by the convening authority or, after referral of charges, by the military judge, except that a copy of the full report is to be furnished to the defense and, upon request, to the commanding officer of the accused; and

(c) that neither the contents of the full report nor any matter considered by the board during its investigation is to be released by the board or other medical personnel to any person not authorized to receive the full report, except pursuant to an order by the military judge.

(iv) Additional examinations. Additional examinations may be directed under this subdivision at any stage of the proceedings as circumstances may require.

(v) Disclosure to trial counsel. No person, other than the defense counsel, accused, or, after referral of charges, the military judge may disclose to the trial counsel any statement made by the accused to the board or any evidence derived from such statement.

(g)Speedy trial.

(1) In general.

The accused shall be brought to trial within 120 days after notice to the accused of preferral of charges under N.Y.R.C.M. 308 or the imposition of restraint under N.Y.R.C.M. 304, whichever is earlier.

(2) Accountability.

(i) In general. The date on which the accused is notified of the preferral of charges or the date on which pretrial restraint is imposed does not count for the purpose of computing the time under paragraph (1) of this subdivision. The date on which the accused is brought to trial counts.

(ii) Inception. If charges are dismissed, if a mistrial is granted, or - when no charges are pending - if the accused is released from pretrial restraint for a significant period, the time under this rule runs only from the date on which charges or restraint are reinstituted.

(iii) Termination. An accused is brought to trial within the meaning of this subdivision when:

(a) a plea of guilty is entered to an offense; or

(b) presentation to the factfinder of evidence on the merits begins.

(iv) Multiple charges. When charges are preferred at different times, the inception for each is to be determined from the date on which the accused was notified of preferral or on which restraint was imposed on the basis of that offense.

(3) Exclusions.

The following periods are to be excluded when determining whether the period in paragraph (1) of this subdivision has run:

(i) Any periods of delay resulting from other proceedings in the case including:

(a) any examination into the mental capacity or responsibility of the accused;

(b) any hearing on the capacity of the accused to stand trial and any time during which the accused lacks capacity to stand trial;

(c) any session on pretrial motions;

(d) any petition for extraordinary relief by either party.

(ii) Any period of delay resulting from unavailability of a military judge when the unavailability results from extraordinary circumstances.

(iii) Any period of delay resulting from a delay in a proceeding or a continuance in the court-martial granted at the request or with the consent of the defense.

(iv) Any period of delay resulting from a failure of the defense to provide notice, make a request, or submit any matter in a timely manner as otherwise required by this Chapter.

(v) Any period of delay resulting from a delay in the hearing under ML, 130.32 or a continuance in the court-martial at the request of the prosecution if:

(a) the delay or continuance is granted because of unavailability of substantial evidence relevant and necessary to the prosecution's case when the State has exercised due diligence to obtain such evidence and there exists at the time of the delay grounds to believe that such evidence would be available within a reasonable time; or

(b) the continuance is granted to allow the trial counsel additional time to prepare the prosecution's case and additional time is justified because of the exceptional circumstances of the case.

(vi) Any period of delay resulting from the absence or unavailability of the accused.

(vii) Any reasonable period of delay when the accused is joined for trial with a co-accused as to whom the time for trial has not yet run and there is no good cause for not granting a severance.

(viii) Any other period of delay for good cause, including unusual operational requirements and military exigencies.

(4) Arrest or confinement.

When the accused is in pretrial arrest or confinement under N.Y.R.C.M. 304 or 305, immediate steps shall be taken to bring the accused to trial (ML, 130.10). No accused is to be held in pretrial arrest of confinement in excess of 90 days for the same or related charges. Except for any periods under subparagraph (3)(vii) of this subdivision, the periods described in paragraph (3) of this subdivision are to be excluded for the purpose of computing when 90 days has run. The military judge may, upon a showing of extraordinary circumstances, extend the period by 10 days.

(5) Remedy.

Failure to comply with this subdivision results in dismissal of the affected charges upon timely motion by the accused.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.7