Title 9 Part 516

A court-martial may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for 30 days or a fine of $100, or both. (see ML, 130.48).

Courts-martial may try any person when authorized to do so under the code (see ML, 130.2).

To the extent permitted by the United States or New York State Constitutions, courts-martial may try any offense under the code.

Any person may report an offense subject to trial by court-martial.

Ordinarily, any military authority who receivea a report of an offense shall forward as soon as practicable the report and any accompanying information to the immediate commander of the suspect. Competent authority superior to that commander may direct otherwise.

A person who is not a resident of the private dwelling entered may not challenge the legality of his or her own apprehension on the basis of failure to secure a warrant or authorization to enter that dwelling, or on the basis of the sufficiency of such a warrant or authorization. Nothing in this subparagraph affects the legality of an apprehension which is incident to otherwise lawful presence in a private dwelling.

Upon receipt of information that a member of the command is accused or suspected of committing an offense or offenses triable by court- martial, the immediate commander shall make or cause to be made a preliminary inquiry into the charges or suspected offenses. The commander should seek the advice of his staff judge advocate before taking any action.

Serious criminal misconduct includes intimidation of witnesses or other obstruction of justice, seriously injuring others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States. As used in this subdivision, national security means the national defense foreign relations of the United States and specifically includes: a military or defense advantage over any foreign nation or group of nations; a favorable foreign relations position; or a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert.

When in receipt of charges, a commander authorized to administer non-judicial punishment but not authorized to convene courts-martial may:

When in receipt of charges, a commander exercising special court-martial jurisdiction may:

The accused may waive an investigation under this subdivision. Such waiver must be in writing. In addition, failure to make a timely objection under this subdivision, including an objection to the report, constitutes waiver of the objection. Relief from the waiver may be granted by the investigating officer, the commander who directed the investigation, the convening authority, or the military judge, as appropriate, for good cause shown.

Before any charge may be referred for trial by a general court-martial, it must be referred to the staff judge advocate of the convening authority for consideration and advice (ML, 130.34[a]).

The advice of the staff judge advocate must include a written and signed statement which sets forth that person's:

A copy of the advice of the staff judge advocate must be provided to the defense if charges are referred to trial by general court-martial.

When in receipt of charges, a commander exercising general court-martial jurisdiction may:

Other personnel, such as reporters, interpreters, bailiffs, clerks, escorts, and orderlies, may be detailed or employed as appropriate but need not be detailed by the convening authority personally (ML, 130.28).

No person who has acted as counsel or assistant counsel for a party may serve as counsel or assistant counsel for an opposing party in the same case (ML, 130.27[a]).

The convening authority must ensure that an appropriate location and facilities for courts-martial are provided.

Subject to this subdivision, the members, military judge, and counsel may be changed by an authority competent to detail such persons. Members also may be excused as provided in subclause (3)(i)(b)(2) and clause (3)(ii)(a) of this subdivision.

When new persons are added as members or counsel substitutions are made as to any members or counsel or the military judge, such persons are to be detailed in accordance with N.Y.R.C.M. 503. An order changing the members of the court-martial, except one which excuses members without replacement, must be reduced to writing before authentication of the record of trial.

For purposes of this subdivision, good cause includes physical disability, military exigency, and other extraordinary circumstances which render the member, counsel, or military judge unable to proceed with the court-martial within a reasonable time. Good cause does not include temporary inconveniences which are incident to normal conditions of military life.

The accused has the right to be represented before a general or special or summary court-martial by civilian counsel if provided at no expense to the State. The accused has the right to be represented by either the military counsel detailed under ML, 130.27, or military counsel of the accused's own selection, if reasonably available before a general or special court-martial. The accused is entitled to be represented by both the military counsel detailed under ML, 130.27, and military counsel of the accused's own selection, if reasonably available, if the accused so requests, in which event the detailed military counsel will act as associate counsel to the individual military counsel (ML, 130.38[b]).

The Chief of Staff to the Governor may determine other persons to be not reasonably available because of the nature or responsibilities of their assignments, geographic considerations, exigent circumstances, or military necessity. A person who is a member of a force of the organized militia different from that of which the accused is a member is reasonably available to serve as individual military counsel for such accused to the same extent as that person is available to serve as individual military counsel for an accused in the same force of the organized militia as the person requested. The Chief of Staff to the Governor may prescribe circumstances under which exceptions may be made to the prohibitions in this paragraph when merited by the existence of an attorney-client relationship regarding matters relating to a charge in question. However, if the attorney-client relationship arose solely because the counsel represented the accused on review under ML 130.67, this exception does not apply.

Except as otherwise provided in N.Y.C.R.M. 505(d)(2) and paragraph (1) of this subdivision, defense counsel may be excused only with the express consent of the accused, or by the military judge upon application for withdrawal by the defense counsel for good cause shown.

The accused may expressly waive the right to be represented by counsel and may thereafter conduct the defense personally. Such waiver is to be accepted by the military judge only if the military judge finds that the accused is competent to understand the disadvantages of self-representation and that the waiver is voluntary and understanding. The military judge may require that a defense counsel remain present even if the accused waives counsel and conducts the defense personally. The right of the accused to conduct the defense personally may be revoked if the accused is disruptive or fails to follow basic rules of decorum and procedure.

Subject to the discretion of the military judge, the accused may have present and seated at the counsel table for purpose of consultation persons not qualified to serve as counsel under N.Y.R.C.M. 502.

Referral is an order of a convening authority that charges against an accused will be tried by a specified court-martial.

Any convening authority may refer charges to a court-martial convened by that convening authority or a predecessor, unless the power to do so has been withheld by superior competent authority.

An accuser may not refer charges to a general or special court-martial.

These requirements may be waived by the accused.

Except as otherwise provided in these rules, a superior competent authority may cause charges, whether or not referred, to be transmitted to that authority for further consideration, including, if appropriate, referral.

The trial counsel detailed to the court-martial to which charges have been referred for trial must cause to be served upon each accused a copy of the charge sheet. In time or peace, no person may, over objection, be brought to trial, including a session under ML, 130.39(a) before a general court-martial within a period of five days after service of charges, or before a special court-martial within a period of three days after service of charges. In computing these periods, the date of service of charges and the date of trial are excluded; holidays and Sundays are included (ML, 130.35).

Minor changes in charges and specifications are any except those which add a party, offense, or substantial matter not fairly included in those previously preferred, or which are likely to mislead the accused as to the offenses charged.

Any person forwarding, acting upon, or prosecuting charges on behalf of the State except an investigation officer appointed under N.Y.R.C.M. 405 may make minor changes to charges or specifications before arraignment.

After arraignment the military judge may, upon motion, permit minor changes in the charges and specifications at any time before findings are announced if no substantial right of the accused is prejudiced.

Changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew.

The convening authority or a superior competent authority may for any reason proper cause any charges or specifications to be withdrawn from a court-martial at any time before findings are announced.

Charges which have been withdrawn from a court-martial may be referred to another court-martial unless the withdrawal was for an improper reason. Charges withdrawn after the introduction of evidence on the general issue of guilt may be referred to another court-martial only if the withdrawal was necessitated by urgent and unforeseen military necessity.

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.

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:

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.

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.

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.

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.

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

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

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).

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.

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.

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

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]).

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.

Nothing in this subdivision bars:

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

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.

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:

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.

A pretrial agreement may include:

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.

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.

Other appropriate questions may also be included.

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.

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

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.

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

The military judge is the presiding officer in a court-martial (ML, 130.26[a]). The military judge must:

The court-martial may act to obtain evidence in addition to that presented by the parties. The right of the members to have additional evidence obtained is subject to an interlocutory ruling by the military judge.

If during the trial there is evidence that the accused may be guilty of an untried offense not alleged in any specification before the court-martial, the court-martial must proceed with the trial of the offense charged.

All sessions involving rulings or instructions made or given by the military judge or the president of a special court-martial without a military judge are to be made a part of the record. All rulings and instructions are to be made or given in open session in the presence of the parties and the members, except as otherwise may be determined in the discretion of the military judge. For purposes of this paragraph, “military judge” does not include the president of a special court-martial without a military judge.

After referral, the military judge may, upon request of any party or sua sponte, order one or more conferences with the parties to consider such matters as will promote a fair and expeditious trial.

Conferences need not be made part of the record, but matters agreed upon at a conference are to be included in the record orally or in writing. Failure of a party to object at trial to failure to comply with this paragraph waives this requirement.

A conference cannot proceed over the objection of any party. No party may be prevented under this rule from presenting evidence or from making any argument, objection, or motion at trial.

The presence of the accused is neither required nor prohibited at a conference.

No admissions made by the accused or defense counsel at a conference are to be used against the accused unless the admissions are reduced to writing and signed by the accused and defense counsel.

This subdivision cannot be invoked in the case of an accused who is not represented by counsel, or in special courts-martial without a military judge.

A military judge who has been detailed to the court-martial may, under 130.39(a), ML, after service of charges, call the court-martial into session without the presence of members. Such sessions may be held before and after assembly of the court-martial, and when authorized in these rules, after adjournment and before action by the convening authority. All such sessions are a part of the trial and must be conducted in the presence of the accused, defense counsel, and trial counsel, in accordance with N.Y.R.C.M 804 and 805, and must be made a part of the record. For purposes of this rule “military judge” does not include the president of a special court-martial without a military judge.

The accused shall be present at the arraignment, the time of the plea, every stage of the trial including sessions conducted under 130.39(a), ML, voir dire and challenges of members, the return of the findings, sentencing proceedings, and post-trial sessions, if any, except as otherwise provided by this subdivision.

The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence cannot be prevented and the accused must be considered to have waived the right to be present whenever an accused, initially present:

“WARNING: You have a right to be present at your court-martial. In the event you fail to appear, the court-martial may proceed in your absence.”

In order to maintain the dignity and decorum of the proceedings or for other good cause, the military judge may reasonably limit the number of spectators in, and the means of access to, the courtroom, exclude specific persons from the courtroom, and close a session; however, a session may be closed over the objection of the accused only when expressly authorized by another provision of this Chapter.

Oath includes “affirmation”.

The trial counsel of a general or special court-martial must take such action as may be necessary to ensure that a record which will meet the requirements of N.Y.R.C.M. 1103 can be prepared.

A record of the contempt proceedings must be part of the record of the court-martial during which it occurred. If the person was held in contempt, then a separate record of the contempt proceedings must be prepared and forwarded to the convening authority for review. The convening authority may approve or disapprove all or part of the sentence. The action of the convening authority is not subject to further review or appeal.

A sentence of confinement pursuant to a finding of contempt begins to run when it is adjudged unless deferred, suspended, or disapproved by the convening authority. The place of confinement for a civilian or military person who is held in contempt and is to be punished by confinement must be designated by the convening authority. A fine does not become effective until ordered executed by the convening authority. The military judge may delay announcing the sentence after a finding of contempt to permit the person involved to continue to participate in the proceedings.

The person held in contempt must be informed by the convening authority in writing of the holding and sentence, if any, of the court-martial and of the action of the convening authority upon the sentence.

Other trial means another trial of a case in which the original proceedings were declared invalid because of lack of jurisdiction or failure of a charge to state an offense.

The military judge may, in the interest of justice, decline to accept a stipulation.

Before accepting a stipulation in evidence, the military judge must be satisfied that the parties consent to its admission.

A party may withdraw from an agreement to stipulate or from a stipulation at any time before a stipulation is accepted; the stipulation may not then be accepted. After a stipulation has been accepted a party may withdraw from it only if permitted to do so in the discretion of the military judge.

Unless properly withdrawn or ordered stricken from the record, a stipulation of fact that has been accepted is binding on the court-martial and may not be contradicted by the parties thereto. The contents of a stipulation of expected testimony or of a document's contents may be attacked, contradicted, or explained in the same way as if the witness had actually so testified or the document had been actually admitted. The fact that the parties so stipulated does not admit the truth of the indicated testimony or document's contents, nor does it add anything to the evidentiary nature of the testimony or document. The Military Rules of Evidence apply to the contents of stipulation.

When offered, a written stipulation must be presented to the military judge and must be included in the record whether accepted or not. Once accepted, a written stipulation of expected testimony must be read to the members, if any, but cannot be presented to them; a written stipulation of fact or of a document's contents may be read to the members, if any, presented to them, or both. Once accepted, an oral stipulation must be announced to the members, if any.

In joint trials and in common trials, each accused must be accorded the rights and privileges as if tried separately.

When the court-martial is called to order after a recess or adjournment or after it has been closed for any reason, the military judge must ensure that the record reflects whether all parties and members who were present at the time of the adjournment or recess, or at the time the court-martial closed, are present.

A court-martial is in session when the military judge so declares.

After the court-martial is called to order, the presence or absence of the parties, military judge, and members are announced.

After the personnel have been accounted for as required in subparagraph (2) of this subdivision, the trial counsel announces whether the reporter and interpreter, if any is present, have been properly sworn. If not sworn, the reporter and interpreter, if any, are sworn.

In cases in which a military judge has been detailed, the procedures described in N.Y.R.C.M. 901 through 910 must be conducted without members present in accordance with N.Y.R.C.M. 803.

Except as provided in paragraph (5) of this subdivision, a military judge must disqualify himself in any proceeding in which that military judge's impartiality might reasonably be questioned.

A military judge must also disqualify himself in the following circumstances:

For the purposes of this rule the following words or phrases have the meaning indicated:

No military judge is to accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in paragraph (2) of this subdivision. Where the ground for disqualification arises only under paragraph (1) of this subdivision, waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.

Failure to request, or failure to withdraw a request for enlisted members or trial by military judge alone in a timely manner waives the right to submit or to withdraw such a request. However, the military judge may until the beginning of the introduction of evidence on the merits, as a matter of discretion, approve an untimely request or withdrawal of a request.

For purposes of this subdivision, military judge does not include the president of a special court-martial without a military judge.

Arraignment must be conducted in a court-martial session and consists of reading the charges and specification to the accused and calling on the accused to plead. The accused may waive the reading.

A motion is an application to the military judge for particular relief. Motions may be oral or, at the discretion of the military judge, written. A motion must state the grounds upon which it is made and must set forth the ruling or relief sought. The substance of a motion, not its form or designation, controls.

Any defense, objection, or request which is capable of determination without the trial of the general issue of guilt may be raised before trial. The following must be raised before a plea is entered:

A motion made before pleas are entered must be determined before pleas are entered unless, if otherwise not prohibited by this Chapter, the military judge for good cause orders that determination be deferred until trial of the general issue or after findings, but no such determination be deferred if a party's right to review or appeal is adversely affected. Where factual issues are involved in determining a motion, the military judge must state the essential findings on the record.

Failure by a party to raise defenses or objections or to make requests which must be made before pleas are entered under paragraph (2) of this subdivision constitutes waiver. The military judge for good cause shown may grant relief from the waiver. Other requests, defenses, or objections, except lack of jurisdiction or failure of a charge to allege an offense, must be raised before the court-martial is finally adjourned for that case and, unless otherwise provided in this Chapter, failure to do so constitutes waiver.

On request of any party or sua sponte, the military judge may reconsider any ruling, other than one amounting to a finding of not guilty, made by the military judge.

Any matter put in issue and finally determined by a court-martial, reviewing authority, or appellate court which had jurisdiction to determine the matter may not be disputed by the State in any other court-martial of the same accused, except that, when the offenses charged at one court-martial did not arise out of the same transaction as charged at the court-martial at which the determination was made, a determination of law and the application of law to the facts may be disputed by the State. This subdivision also applies to matters which were put in issue and finally determined in any other judicial proceeding in which the accused and the State were parties.

Additional information may be requested with the approval of the military judge. Each member's responses to the questions must be written and signed the by member.

The trial counsel must state any ground for challenge for cause against any member of which the trial counsel is aware.

The military judge may permit the parties to conduct the examination of members or may personally conduct the examination. In the latter event the military judge is to permit the parties to supplement the examination by such further inquiry as the military judge deems proper or the military judge must submit to the members such additional questions by the parties as the military judge deems proper. A member may be questioned outside the presence of other members when the military judge so directs.

Any party may present evidence relating to whether grounds for challenge exist against a member.

On motion for a mistrial or when it otherwise appears that grounds for a mistrial may exist, the military judge must inquire into the views of the parties on the matter and then decide the matter as an interlocutory question.

As used in this subdivision defenses includes any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts.

Except for the defense of lack of mental responsibility, once a defense under this subdivision is placed in issue by some evidence, the prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist. The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.

A death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful.

It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.

A death, injury, or other event which occurs as the unintentional and unexpected result of doing a lawful act in a lawful manner is an accident and excusable.

It is a defense that the criminal design or suggestion to commit the offense originated in the State and the accused had no predisposition to commit the offense.

It is a defense to any offense under the code that the accused's participation in the offense was caused by a reasonable apprehension that the accused or another innocent person would be immediately killed or would immediately suffer serious bodily injury if the accused did not commit the act. The apprehension must reasonably continue throughout the commission of the act. If the accused has any reasonable opportunity to avoid committing the act without subjecting the accused or another innocent person to the harm threatened, this defense does not apply.

It is a defense to refusal or failure to perform a duty that the accused was, through no fault of the accused, not physically or financially able to perform the duty.

Except as otherwise provided in this paragraph, it is a defense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of the true circumstances such that, if the circumstances were as the accused believed them, the accused would not be guilty of the offense. If the ignorance or mistake goes to an element requiring premeditation, specific intent, willfulness, or knowledge of a particular fact, the ignorance or mistake need only have existed in the mind of the accused. If the ignorance or mistake goes to any other element requiring only general intent or knowledge, the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances. However, if the accused's knowledge or intent is immaterial as to an element, then ignorance or mistake is not a defense.

Where an appellate court of this State has made a final determination affecting the criminal law of this State with respect to matters of substantive law relating to any of the defenses contained in this section; that determination is, if applicable to the particular case, binding upon the court-martial.

The military judge, on motion by the accused or sua sponte,must enter a finding of not guilty of one or more offenses charged after the evidence on either side is closed and before findings on the general issue of guilt are announced if the evidence is insufficient to sustain a conviction of the offense affected. If a motion for a finding of not guilty at the close of the State's case is denied, the defense may offer evidence on that offense without having reserved the right to do so.

The motion must specifically indicate wherein the evidence is insufficient.

Before ruling on a motion for a finding of not guilty, whether made by counsel or sua sponte, the military judge must give each party an opportunity to be heard on the matter.

A motion for a finding of not guilty is granted only in the absence of some evidence which, together with all reasonable inferences and applicable presumptions, could reasonably rend to establish every essential element of an offense charged. The evidence must be viewed in the light most favorable to the State, without an evaluation of the credibility of witnesses.

A motion for a finding of not guilty may be granted as to part of a specification and, if appropriate, the corresponding charge, as long as a lesser offense charged is alleged in the portion of the specification as to which the motion is not granted. In such cases, the military judge must announce that a finding of not guilty has been granted as to specified language in the specification and, if appropriate, corresponding charge. In cases before members, the military judge must instruct the members accordingly, so that any findings later announced will not be inconsistent with the granting of the motion.

A ruling granting a motion for a finding of not guilty is final when announced and may not be reconsidered. Such a ruling is a finding of not guilty of the affected specification, or affected portion thereof, and, when appropriate, of the corresponding charge. A ruling denying a motion for a finding of not guilty may be reconsidered at any time before findings on the general issue of guilt are announced.

If all the evidence admitted before findings, regardless by whom offered, is sufficient to sustain findings of guilty, the findings need not be set aside upon review solely because the motion for finding of not guilty should have been granted upon the state of the evidence when it was made.

The general findings of a court-martial state whether the accused is guilty of each offense charged (ML, 130.53). If two or more accused are tried together, separate findings as to each must be made (ML, 130.51).

In a trial by court-martial composed of military judge alone, the military judge must make special findings upon request by any party (ML, 130.51). Special findings may be requested only as to matters of fact reasonably in issue as to an offense and need be made only as to offenses of which the accused was found guilty. Special findings may be requested at any time before general findings are announced. Only one set of special findings may be requested by a party in a case. If the request is for findings on specific matters, the military judge may require that the request be written. Special findings may be entered orally on the record at the court-martial or in writing during or after the court-martial, but in any event shall be made before authentication and included in the record of trial.

Findings may be based on direct or circumstantial evidence. Only matters properly before the court-martial on the merits of the case may be considered. A finding of guilty of any offense may be reached only when the factfinder is satisfied that guilt has been proved beyond a reasonable doubt.

After the closing the evidence, trial counsel must be permitted to open the argument. The defense counsel must be permitted to reply. Trial counsel may reply in rebuttal.

Arguments may properly include reasonable comment on the evidence in the case, including inferences to be drawn therefrom, in support of a party's theory of the case.

Failure to object to improper argument before the military judge begins to instruct the members on findings waives the objection.

The military judge must give the members appropriate instructions on findings (ML, 130.51).

Instructions on findings must be given after arguments by counsel and before the members close to deliberate on findings, but the military judge may, upon request of the members, any party, or sua sponte, give additional instructions at a later time.

At the close of the evidence or at such other time as the military judge may permit, any party may request that the military judge instruct the members on the law as set forth in the request. The military judge may require the requested instruction to be written. Each party must be given the opportunity to be heard on any proposed instruction on findings before it is given. The military judge must inform the parties of the proposed action on such requests before their closing arguments.

Instructions on findings must be given orally on the record in the presence of all parties and the members. Written copies of the instructions, or, unless a party objects, portions of them, may also be given to the members for their use during deliberations.

Instructions on findings must include:

Failure to object to an instruction or to omission of an instruction before the members close to deliberate waives the objection in the absence of plain error. The military judge may require the party objecting to specify in what respect the instructions given were improper. The parties must be given the opportunity to be heard on any objection outside the presence of the members.

After the military judge instructs the members on findings, the members must deliberate and vote in a closed session. Only the members shall be present during deliberations and voting. Superiority in rank cannot be used in any manner in an attempt to control the independence of members in the exercise of their judgement (ML, 130.37, 130.51 and 130.52).

Deliberations properly include full and free discussion of the merits of the case. Unless otherwise directed by the military judge, members may take with them in deliberations their notes, if any, any exhibits admitted in evidence, and any written instructions. Members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced. The military judge may, in the exercise of discretion, grant such request.

Findings shall be announced in the presence of all parties promptly after they have been determined (ML, 130.53).

The president must announce the findings by the members. If a finding is based on a plea of guilty, the president must so state.

The military judge must announce the findings when trial is by military judge alone or when findings may be entered under N.Y.R.C.M. 910(g).

If an error was made in the announcement of the findings of the court-martial, the error may be corrected by a new announcement in accordance with this subdivision. The error must be discovered and the new announcement made before the final adjournment of the court-martial in the case.

Except as provided in Mil. R. Evid. 606, members may not be questioned about their deliberations and voting.

Findings which are proper on their face may be impeached only when extraneous prejudicial information was improperly brought to the attention of a member, outside influence was improperly brought to bear upon any member, or unlawful command influence was brought to bear upon any member.

Members may reconsider any finding reached by them before such finding is announced in open session. Members may reconsider any finding of guilty reached by them at any time before announcement of the sentence.

Any member may propose that a finding be reconsidered. If such a proposal is made in a timely manner the question whether to reconsider shall be determined in closed session by secret written ballot. Any finding of not guilty shall be reconsidered if a majority vote for reconsideration. Any finding of guilty shall be reconsidered if more than one-third of the members vote for reconsideration. Any finding of not guilty only by reason of lack of mental responsibility shall be reconsidered on the issue of the finding of guilty of the elements if more than one-third of the members vote for reconsideration, and on the issue of mental responsibility if a majority vote for reconsideration. If a vote to reconsider a finding succeeds, the procedures in N.Y.R.C.M. 920 shall apply.

In trial by military judge alone, the military judge may reconsider any finding of guilty at any time before announcement of sentence.

The trial counsel may rebut matters presented by the defense. The defense in surrebuttal may then rebut any rebuttal offered by the trial counsel. Rebuttal and surrebuttal may continue, in the discretion of the military judge. If the Military Rules of Evidence were relaxed under subparagraph (3)(iii) of this subdivision, they may be relaxed during rebuttal and surrebuttal to the same degree.

After introduction of matters relating to sentence under this subdivision, trial counsel and defense counsel may argue for an appropriate sentence. Trial counsel may not in argument purport to speak for the convening authority or any higher authority, or refer to the views of such authorities or any policy directive relative to punishment or to any punishment or quantum of punishment greater than that court-martial may adjudge. Trial counsel may, however, recommend a specific lawful sentence and may also refer to generally accepted sentencing philosophies, including rehabilitation of the accused, general deterrence, specific deterrence of misconduct by the accused, and social retribution. Failure to object to improper argument before the military judge begins to instruct the members on sentencing shall waive the objection.

Subject to limitations in 130.18, 130.19 and 130.20(b), ML, as appropriate, the sentence to be adjudged is a matter within the discretion of the court-martial. To the extent that punishment is discretionary, the sentence must provide a legal, appropriate, and adequate punishment, including a sentence of no punishment.

Subject to the limitations in this Chapter, the punishments authorized in the code may be adjudged in the case of any person found guilty of an offense by a court-martial.

Subject to the limitations in ML, 130.18, 130.19 and 130.20(b), a court-martial may adjudge only the following punishments:

Instructions on sentence must be given after arguments by counsel and before the members close to deliberate on sentence, but the military judge may upon request of the members, any party, or sua sponte, give additional instructions at a later time.

After presentation of matters relating to sentence or at such other time as the military judge may permit, any party may request that the military judge instruct the members on the law as set forth in the request. The military judge may require the requested instruction to be written. Each party has the opportunity to be heard on any proposed instruction on sentence before it is given. The military judge must inform the parties of the proposed action on such requests before their closing arguments on sentence.

Instructions on sentence must be given orally on the record in the presence of all parties and the members. Written copies of the instructions, or unless a party objects, portions of them, may also be given to the members for their use during deliberations.

Instructions on sentence must include:

Failure to object to an instruction or to omission of an instruction before the members close to deliberate on the sentence waives the objection in the absence of plain error. The military judge may require the party objecting to specify in what respect the instructions were improper. The parties have the opportunity to be heard on any objection outside the presence of the members.

The members must deliberate and vote after the military judge instructs the members on sentence. Only the members are to be present during deliberations and voting. Superiority in rank cannot be used in any manner to control the independence of members in the exercise of their judgement (130.37, ML).

Deliberations may properly include full and free discussion of the sentence to be imposed in the case. Unless otherwise directed by the military judge, members may take with them in deliberations their notes, if any, any exhibits admitted in evidence, and any written instructions. Members may request that the court-martial be reopened and that portions of the record be read to them or additional evidence introduced. The military judge may, in the exercise of discretion, grant such requests.

Any member may propose a sentence. Each proposal must be in writing and must contain the complete sentence proposed. The junior member collects the proposed sentences and submits them to the president.

If the announced sentence is not the one actually determined by the court-martial, the error may be corrected by a new announcement made before the record of trial is authenticated and forwarded to the convening authority. This action is not a reconsideration of the sentence. If the court-martial has been adjourned before the error is discovered, the military judge may call the court-martial into session to correct the announcement.

Except as provided in Mil. R. Evid. 606, members may not otherwise be questioned about their deliberations and voting.

A sentence which is proper on its fact may be impeached only when extraneous prejudicial information was improperly brought to the attention of a member, outside influence was improperly brought to bear upon any member, or unlawful command influence was brought to bear upon any member.

Subject to this subdivision, a sentence may be reconsidered by the members or the military judge who reached it at any time before the record of trial is authenticated.

After a sentence has been announced, it may not be increased upon reconsideration unless the sentence announced was less than the mandatory minimum prescribed for an offense of which the accused has been found guilty.

In each general and special court-martial, after the sentence is announced and before the court-martial is adjourned, the military judge must inform the accused of:

The military judge may adjourn the court-martial at the end of the trial of an accused or proceed to trial of other cases referred to that court-martial. Such an adjournment may be for a definite or indefinite period.

After final adjournment of the court-martial in a case, the trial counsel must promptly notify the accused's immediate commander, the convening authority or the convening authority's designee, and, if appropriate, the officer in charge of the confinement facility of the findings and sentence (See ML, 130.60[a]).

Deferment of confinement may not continue after the conviction is final under N.Y.R.C.M. 1209.

Post-trial sessions may be proceedings in revision or sessions under ML, 130.39(a). Such sessions may be directed by the military judge or the convening authority in accordance with this subdivision (See ML, 130.60[e]).

If, because of loss of recordings or notes, or other reasons, a verbatim transcript cannot be prepared when required by clause (2)(ii)(b) or subparagraph (3)(i) of this subdivision, a record which meets the requirements of clause (2)(ii)(c) of this subdivision must be prepared, and the convening authority may:

If the record of trial contains matter which must be classified under applicable security regulations, the trial counsel must cause a proper security classification to be assigned to the record of trial and on each page thereof on which classified material appears.

If the authenticated record of trial is lost or destroyed, the trial counsel must, if practicable, cause another record of trial to be prepared for authentication. The new record of trial becomes the record of trial in the case if the requirements of N.Y.R.C.M. 1103 and this subdivision are met.

After every court-martial, including a rehearing and new and other trials, the authenticated record must be forwarded to the convening authority for initial review and action, provided that in case of a special court-martial in which a bad-conduct discharge was adjudged or any court-martial in which confinement at hard labor was adjudged or a general court-martial, the convening authority must refer the record to the staff judge advocate or legal officer for a recommendation under N.Y.R.C.M. 1106 before the convening authority takes action (ML, 130.60[d]).

After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this subdivision (ML, 130.60).

The accused may submit to the convening authority any written matters which may reasonably tend to affect the convening authority's decision whether to disapprove any findings of guilty or to approve the sentence. Such matters are not subject to the Military Rules of Evidence and may include:

Before the convening authority takes action under N.Y.R.C.M. 1107 on a record of trial by general court-martial or a record of trial by special court-martial which includes a sentence to a bad-conduct discharge or any court-martial in which confinement of hard labor, that convening authority's staff judge advocate or legal officer must, except as provided in paragraph (3) of this subdivision, forward to the convening authority a recommendation under this subdivision (ML, 130.60[d]).

No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, associate or assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer or any reviewing or convening authority in the same case.

If the proceedings resulted in an acquittal of all charges and specifications or if, after the trial began, the proceedings were terminated without findings and no further action is contemplated, a recommendation under this subdivision is not required.

The convening authority must take action on the sentence and, in the discretion of the convening authority, the findings, unless it is impracticable. If it is impracticable for the convening authority to act, the convening authority must forward the case to an officer exercising general court-martial jurisdiction who may take action under this subdivision.

Action on the findings is not required. However, the convening authority may, in the convening authority's sole discretion:

Unless otherwise stated, an action suspending a sentence includes as a condition that the probationer not violate any punitive article of the code.

Suspension of execution of the sentence of a court-martial may be vacated for violation of the conditions of the suspension provided in this subdivision (ML, 130.70).

After any general court-martial or any special court-martial in which the approved sentence includes a bad-conduct discharge or any court-martial in which the approved sentence includes confinement at hard labor, the accused may waive or withdraw appellate review.

Copies of the judge advocate's review under this subdivision shall be attached to the original and all copies or the record of trial. A copy of the review shall be forwarded to the accused.

If the judge advocate's review is not forwarded under this paragraph, it must be attached to the original record of trial and a copy forwarded to the accused.

A dishonorable or a bad-conduct discharge may be ordered executed only after a final judgment within the meaning of N.Y.R.C.M. 1207 has been rendered in the case. If more than six months have elapsed since approval of the sentence by the convening authority, before a dishonorable or a bad-conduct discharge may be executed, the officer exercising general court-martial jurisdiction over the accused must consider the advice of that officer's staff judge advocate as to whether retention of the service member would be in the best interest of the service. Such advice must include: the findings and sentence as finally approved; whether the service member has been on active State duty since the court-martial, and, if so, the nature and character of that duty; and a recommendation whether the discharge should be executed.

When an order contains information which must be classified, only the order retained in the unit files and those copies which accompany the record of trial is to be complete and contain the classified information. The order must be assigned the appropriate security classification. Asterisks are to be substituted for the classified information in the other copies of the order.

The promulgating order must be authenticated by the signature of the convening or other competent authority acting on the case, or a person acting under the direction of such authority. A promulgating order prepared in compliance with this subdivision is authentic.

Promulgating orders are to be distributed as follows:

The State judge advocate may, when so authorized by the Chief of Staff to the Governor under ML, 130.72 at any time remit or suspend the unexpected part of any sentence, other than a sentence approved by the Governor.

The State judge advocate may detail one or more officers as appellate counsel and must detail one or more officers as appellate defense counsel.

Appellate defense counsel is authorized to communicate directly with the accused. The accused is a party in the case when named as a party in pleadings before the reviewing authority or staff judge advocate or before the State judge advocate or, even if not so named, when the military judge is named as respondent in a petition by the government for extraordinary relief from a ruling in favor of the accused at trial.

The State judge advocate must establish a Board of Military Review composed of not less than three officers of the organized militia or on the State reserve list or State retired list, each of whom must be a member of the board of the State (see ML, 130.65[a]). No member of the Board of Military Review can review the record of any trial member of the court-martial before which such trial was conducted, or served as military judge, trial or defense counsel, or reviewing officer (see ML, 130.65[g]).

All rights, privileges and property affected by an executed part of a court-martial sentence which has been set aside or disapproved, except an executed dismissal or discharge, must be restored unless a new trial or rehearing is ordered and such executed part is included in a sentence imposed upon the new trial or rehearing (ML, 130.73[a] Restoration).

A court-martial conviction is final when:

The appellate review of records of trial provided by the code, the proceedings, findings and sentences of courts-martial as approved, reviewed or affirmed as required by the code, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation is required by the code, are final and conclusive. Orders publishing the proceedings of courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the State, subject only to action upon a petition for a new trial under ML, 130.71 or action by the Chief of Staff to the Governor as provided in ML, 130.72 and the authority of the Governor (ML, 130.74).

At any time within two years after approval by the convening authority of a court-martial sentence, the accused may petition the State judge advocate for a new trial on the ground of newly discovered evidence or fraud on the court-martial. A petition may not be submitted after the death of the accused.

A petition for a new trial may be submitted by the accused personally, or by the accused's counsel, regardless of whether the accused has been separated from the service.

A petition for a new trial in triplicate, is to be written and signed under oath or affirmation by the accused, by a person possessing the power of attorney of the accused for that purpose, or by a person with the authorization of an appropriate court to sign the petition as the representative of the accused. The petition must contain the following information, or an explanation why such matters are not included:

The submission of a petition for a new trial does not stay the execution of a sentence.

If the accused's case is pending before a Board of Military Review or the Governor, the State judge advocate must refer the petition to that board or to the Governor, as appropriate, for action. Otherwise, the State judge advocate must act on the petition (ML, 130.71).

The authority considering the petition may cause such additional investigation to be made and such additional information to be secured as that authority believes appropriate. Upon written request, and in its discretion, the authority considering the petition may permit oral argument on the matter. If the State judge advocate or a Board of Military Review believes meritorious grounds for relief under ML, 130.72 have been established but that a new trial is not appropriate, he or she may act under ML, 130.72 if authorized to do so, or transmit the petition and related papers to the Chief of Staff to the Governor with a recommendation. The State judge advocate may also, in cases which have been finally reviewed but have not been reviewed by a Board of Military Review, act under ML, 130.68.

A summary court-martial is composed of one officer. Whenever practicable, a summary court-martial should be an officer whose grade is not below Lieutenant Commander of the Naval Militia or Major of the Army National Guard or Air National Guard. When only one officer is present with a command or detachment, that officer is to be the summary court-martial of that command or detachment. When more than one officer is present with a command or detachment, the convening authority may not be the summary court-martial of that command or detachment.

The function of the summary court-martial is to promptly adjudicate minor offenses under a simple procedure. The summary court-martial is to thoroughly and impartially inquire into both sides of the matter and shall ensure that the interests of both the State and the accused are safeguarded and that justice is done. A summary court-martial may seek advice from a judge advocate or legal officer on questions of law, but the summary court-martial may not seek advice from any person on factual conclusions which should be drawn from evidence or the sentence which should be imposed, as the summary court-martial has the independent duty to make these determinations.

Subject to section 516.2 of this Part, summary courts-martial have the power to try persons subject to the code, except officers and warrant officers.

Summary courts-martial have the power to sentence to confinement at hard labor not exceeding 25 days; fines not exceeding $25; confinement at hard labor in lieu of fines imposed not exceeding one day for each dollar of fine imposed; forfeiture of pay and allowances not exceeding $25; reprimand; reduction of noncommissioned officers to an inferior grade; and to combine any two or more of such punishments in the sentences imposed (ML, 130.20[c]). Summary courts-martial also may not combine an alternative sentence of confinement at hard labor in lieu of fine with any other sentence authorized in subdivision (d) except reprimand and reduction if the result would exceed the jurisdictional limitations of a summary courts-martial.

The accused at a summary court-martial does not have the right to counsel. If the accused has civilian counsel provided by the accused and qualified under N.Y.R.C.M. 502(d)(3), that counsel must be permitted to represent the accused at the summary court-martial if such appearance will not unreasonably delay the proceedings and if military exigencies do not preclude it.

If the convening authority or the summary court-martial is the accuser, it is discretionary with the convening authority whether to forward the charges to a superior authority with a recommendation to convene the summary court-martial. If the convening authority or the summary court-martial is the accuser, the jurisdiction of the summary court-martial is not affected.

After the requirements of sections 516.3 and 516.4 of this Part have been satisfied, summary courts-martial are to be convened in accordance with N.Y.R.C.M. 504(d)(2). The convening order may be by notation signed by the convening authority on the charge sheet. Charges must be referred to summary courts-martial in accordance with N.Y.R.C.M. 601.

No person who objects thereto before arraignment may be tried by summary court-martial.

The original record of the summary court-martial must be reviewed by a judge advocate in accordance with N.Y.R.C.M. 1112.

The accused may request review of a final conviction by summary court-martial by the State judge advocate in accordance with N.Y.R.C.M. 1201(b)(3).