1. Definitions. For the purposes of this part:
a. In-person proceeding shall mean a proceeding where the judge, all parties, counsel, and participants are physically present in a physical courtroom.
b. Hybrid proceeding shall mean a proceeding where an electronic appearance is utilized by one or more participants but the judge or at least one party or counsel is physically present in a physical courtroom.
c. Virtual proceeding shall mean a proceeding where the judge and all parties, counsel, and participants appear by means of an electronic appearance in a virtual courtroom.
d. Participant shall include, but not be limited to, any witness; treatment provider, administrator, staff, or counselor; or any other individual who may be called upon by the court or a party to provide the court with testimony or other information relevant to a proceeding.
2. Consent and Objections:
a. Unless a court orders the use of an electronic appearance, all parties, counsel, and participants are to be physically present before the court in the physical courtroom for an appearance.
b. In accordance with CPL 182.20(1)(a) and (b), whenever the court considers, or either party requests, that an evidentiary hearing, plea or sentencing proceeding, or arraignment be conducted by means of a virtual or hybrid proceeding, the court shall inquire as to each party's consent to proceeding in the proposed manner prior to scheduling such a proceeding. The court shall confirm such consent on the record at the commencement of the virtual or hybrid proceeding. The determination of whether to consent to an electronic appearance for a defendant, who is represented by counsel shall be made by the defendant after an opportunity to consult with counsel rather than defense counsel and may be evidenced either by a statement by defense counsel, after determining the defendant's decision about whether or not to consent to an electronic court appearance, or a statement by the defendant. No negative inference shall be drawn nor negative consequence imposed based upon the determination to withhold consent to such an electronic appearance.
c. In accordance with CPL 182.20(1)(c), at all other proceedings, including calendar calls, conferences, and arguments, but not including grand jury proceedings and trials, where any party is anticipated to appear or appears by means of an electronic appearance, the court shall ensure all parties are given an opportunity to raise any objections and argue why there is good cause not to permit an electronic appearance (i) at the time such a proceeding is scheduled, if done so on the record in open court, and (ii) at the start of such a proceeding. The court shall rule on any objections before ordering or continuing with the electronic appearance. No negative inference should be drawn nor negative consequence imposed based upon the determination to object to such an electronic appearance.
3. Public Access:
a. At the time that any appearance subsequent to an initial arraignment is scheduled, the court shall note on the record and the calendar shall reflect whether the future appearance will be virtual. Whenever such a designation is altered off-calendar, especially where an appearance previously scheduled to be in-person is modified to be virtual, the court shall promptly update the court calendar appropriately. Except where there is good cause, changes to the format of an appearance should not be permitted less than two business-days before such appearance is scheduled.
b. For all hybrid proceedings, all electronic appearances shall be projected in the physical courtroom in which the in-person portion of the proceeding is taking place in such a manner as to provide a reasonable opportunity for members of the public to view and hear the participants appearing electronically.
c. For any virtual proceeding, the clerk of the court shall ensure that, upon any request received at least one business day prior to a virtual appearance, such proceeding shall be viewable in a courtroom or other designated public area or public areas of a courthouse for members of the public. For any request received the same day, including for an arraignment, the clerk shall notify the court and the parties that such a request has been made and make all reasonable efforts to provide public access.
4. Arraignments: Any court, including a centralized arraignment part created in accordance with Judiciary Law § 212(1)(w), utilizing electronic appearances for arraignments on desk appearance tickets pursuant to CPL 182.20(1)(b)(ii) or for any arraignment pursuant to CPL 182.20(1)(b)(iv), must submit a plan to the appropriate administrative judge overseeing such court for approval. Such plans must provide for all defendants who, after consultation with their counsel, do not consent to the use of electronic appearances, to be arraigned while physically present before a judge without undue delay and without prejudice. Such a plan must include ensuring that there is an on-call judge and a back-up judge who will be available to preside over such arraignments in person at a designated location within a reasonable time from when a defendant is ready to be arraigned if they are being held in custody by law enforcement pending such arraignment. Prior to approval, a copy of such a plan shall be provided to the Office of Indigent Legal Services.
5. The electronic audio-visual recording of any criminal proceeding in the local and superior criminal courts, including those that are fully virtual or hybrid, remains prohibited, except as authorized by the Chief Administrative Judge or their designee in accordance with Part 29 of the Rules of the Chief Judge and Part 131 of the Rules of the Chief Administrative Judge.
6. The rules and regulations promulgated under Article 182 of the Criminal Procedure Law do not apply to the audio-visual coverage of the physical courtroom wherein an in-person or hybrid judicial proceeding takes place. A court's determination to permit such coverage through an audio-visual transmission is governed by Part 29 of the Rules of the Chief Judge and Part 131 of the Rules of the Chief Administrative Judge.