(i) Trial counsel. The trial counsel must announce the legal qualifications and status as to oaths of the members of the prosecution and whether any member of the prosecution has acted in any manner which might tend to disqualify the counsel.

(ii) Defense counsel. The detailed defense counsel must announce the legal qualifications and status as to oaths of the detailed members of the defense and whether any member of the defense has acted in any manner which might tend to disqualify that counsel. Any defense counsel not detailed must state that counsel's legal qualifications, and whether that counsel has acted in any manner which might tend to disqualify that counsel.

(iii) Disqualification. If it appears that any counsel may be disqualified, the military judge must decide the matter and take appropriate action.

(iv) Inquiry. The military judge must in open session:

(v) Unsworn counsel. The military judge must administer the oath to any counsel not sworn.

(i) Where the military judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding.

(ii) Where the military judge has acted as counsel, investigating officer, legal officer, staff judge advocate, or convening authority as to an, offense charged or in the same case generally.

(iii) Where the military judge has been or will be a witness in the same case, is the accuser, has forwarded charges in the case with a personal recommendation as to disposition, or, except in the performance of duties as military judge in a previous trial of the same or a related case, has expressed an opinion concerning the guilt or innocence of the accused.

(iv) Where the military judge is not eligible to act because the military judge is not qualified under N.Y.R.C.M. 502(c) or not detailed under N.Y.R.C.M. 503(b).

(v) Where the military judge, the military judge's spouse, or a person within the third degree of relationship to either of them or a spouse of such person:

(i) proceeding includes pretrial, trial, post-trial, appellate review, or other stages of litigation.

(ii) the degree of relationship is calculated according to the civil law system.

(iii) “military judge” does not include the president of a special court-martial without a military judge.

(i) The military judge must, upon motion of any party or sua sponte, decide whether he is disqualified.

(ii) Each party may question the military judge and present evidence regarding a possible ground for disqualification before the military judge decides the matter.

(iii) Except as provided under paragraph (5) of this subdivision, if the military judge rules that he is disqualified, he must excuse himself.

(i) Request for enlisted members. Before the end of the initial session under 130.39(a), ML or, in the absence of such a session, before assembly, the military judge must ascertain, as applicable, whether an enlisted accused elects to be tried by a court-martial including enlisted members (130.25[c][1], ML). The military judge may, as a matter of discretion permit the accused to defer requesting enlisted members until any time before assembly, which time may be determined by the military judge.

(ii) Request for trial by military judge alone. Before the end of the initial session under 130.39(a), ML or, in the absence of such a session, before assembly, the military judge must ascertain, as applicable, whether in a noncapital case, the accused requests trial by the military judge alone (130.16[1][B], [2][c], ML). The accused may defer requesting trial by military judge alone until any time before assembly.

(i) Request for enlisted members. A request for membership of the court-martial to include enlisted persons must be in writing and signed by the accused or shall be made orally on the record.

(ii) Request for trial by military judge alone. A request for trial by military judge alone must either be in writing and signed by the accused or be made orally on the record.

(i) Request for enlisted members. Upon notice of a timely written request for enlisted members by an enlisted accused, the convening authority shall detail enlisted members to the court-martial in accordance with N.Y.R.C.M. 503 or prepare a detailed written statement explaining why physical conditions or military exigencies prevented this. The trial of the general issue cannot proceed until this is done.

(ii) Request for military judge alone. Upon receipt of a timely request for trial by military judge alone the military judge must:

(iii) Other. In the absence of a request for enlisted members or a request for trial by military judge alone, trial must be by a court-martial composed of officers.

(i) Enlisted members. A request for enlisted members may be withdrawn, by the accused as a matter of right any time before the end of the initial session under 130.39(a), ML or, in the absence of such a session, before assembly.

(ii) Military judge. A request for trial by military judge alone may be withdrawn by the accused as a matter of right any time before it is approved, or, even after approval, if there is a change of the military judge.

(i) defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, investigation, or referral of charges;

(ii) defenses or objections based on defects in the charges and specifications (other than any failure to show jurisdiction or to charge an offense, which objections must be resolved by the military judge at any time during the pendency of the proceedings);

(iii) motions to suppress evidence;

(iv) motions for discovery under N.Y.R.C.M. 701 or for production of witnesses or evidence;

(v) motions for severance of charges or accused; or

(vi) objections based on denial of request for individual military counsel or for retention of detailed defense counsel when individual military counsel has been granted.

(i) Standard. Unless otherwise provided in this Chapter, the burden of proof on any factual issue the resolution of which is necessary to decide a motion is by a preponderance of the evidence.

(ii) Assignment.

(i) Continuances. A continuance may be granted only by the military judge.

(ii) Record of denial of individual military counsel or of denial of request to retain detailed counsel when a request for individual military counsel was granted. If a request for military counsel was denied, which denial was upheld on appeal (if available) or if a request to retain detailed counsel was denied when the accused is represented by individual military counsel, and if the accused so requests, the military judge must ensure that a record of the matter is included in the record of trial, and may make a finding. The trial counsel may request a continuance to inform the convening authority of those findings. The military judge may not dismiss the charges or otherwise effectively prevent further proceedings based on this issue. However, the military judge may grant reasonable continuances until the requested military counsel can be made available if the unavailability results from temporary conditions or if the decision of unavailability is in the process of review in administrative channels.

(iii) Correction of defects in the investigation under 130.32, ML or pretrial advice.

(iv) Amendment of charges or specifications. A charge or specification may not be amended over the accused's objection unless the amendment is minor within the meaning of N.Y.R.C.M. 603(a).

(v) Severance of a duplicious specification into two or more specifications.

(vi) Bill of particulars. A bill of particulars may be amended at any time, subject to such conditions as justice permits.

(vii) Discovery and production of evidence and witnesses.

(viii) Relief from pretrial confinement in violation of N.Y.R.C.M. 305.

(ix) Severance of multiple accused, if it appears than an accused or the State is prejudiced by a joint or common trial. In a common trial, a severance must be granted whenever any accused, other than the moving accused, faces charges unrelated to those charged against the moving accused.

(x) Severance of offenses, but only to prevent manifest injustice.

(xi) Change of place of trial. The place of trial may be changed when necessary to prevent prejudice to the rights of the accused or for the convenience of the State if the rights of the accused are not prejudiced thereby.

(xii) Determination of multiplicity of offenses for sentencing purposes.

(xiii) Preliminary ruling on admissibility of evidence.

(xiv) Motions relating to mental capacity or responsibility of the accused.

(i) Nonwaivable grounds. A charge or specification must be dismissed at any stage of the proceedings if:

(ii) Waivable grounds. A charge or specification must be dismissed upon motion made by the accused before the final adjournment of the court-martial in that case if:

(iii) Permissible grounds. A specification may be dismissed upon timely motion by the accused if:

(i) Nature of issue. The mental capacity of the accused is an interlocutory question of fact.

(ii) Standard. Trial may proceed unless it is established by a preponderance of the evidence that the accused is presently suffering from a mental disease or defect rendering him or her mentally incompetent to the extent that he or she is unable to understand the nature of the proceedings against the accused or conduct or cooperate intelligently in the defense of the case.

(i) In general. An accused may plead not guilty or guilty (130.45, ML). An accused may plead, by exceptions or by exceptions and substitutions, not guilty to an offense as charged, but guilty to an offense included in that offense. A plea of guilty may not be received as to an offense for which the death penalty may be adjudged by the court-martial.

(ii) Conditional pleas. With the approval of the military judge and the consent of the State, an accused may enter a conditional plea of guilty, reserving in writing the right, of further review or appeal, to review of the adverse determination of any specified pretrial motion. If the accused prevails on further review or appeal, the accused must be allowed to withdraw the plea of guilty. The trial counsel may consent on behalf of the State.

(i) the nature of the offense to which the plea is offered, the mandatory minimum penalty, if any, provided by law, and the maximum possible penalty provided by law;

(ii) in a general or special court-martial, if the accused is not represented by counsel, the accused has the right to be represented by counsel at every state of the proceedings;

(iii) that the accused has the right to plead not guilty or to persists in that plea if already made, and that the accused has the right to be tried by a court-martial, and that at such trial the accused has the right to confront and cross-examine witnesses against the accused, and the right against self-incrimination;

(iv) that if the accused pleads guilty, there will not be a trial of any kind as to those offenses to which the accused has so pleaded, so that by pleading guilty the accused waived the rights described in subparagraph (iii) of this paragraph; and

(v) that if the accused pleads guilty, the military judge will question the accused about the offenses to which the accused has pleaded guilty, and, if the accused answers these questions under oath, on the record, and in the presence of counsel, the accused's answers may later be used against the accused in a prosecution for perjury or false statement.

(i) In general. A plea agreement may not be accepted if it does not comply with N.Y.R.C.M. 705.

(ii) Notice. The parties must inform the military judge if a plea agreement exists.

(iii) Disclosure. If a plea agreement exists, the military judge must require disclosure of the entire agreement before the plea is accepted, provided that in trial before military judge alone the military judge ordinarily cannot examine any sentence limitation contained in the agreement until after the sentence of the court-martial has been announced.

(iv) Inquiry. The military judge must inquire to ensure:

(i) the plea is to a lesser included offense and the State intends to proceed to trial on the offense as charged; or

(ii) trial is by a special court-martial without a military judge, in which case the president of the court-martial may enter findings based on the pleas without a formal vote except when this subparagraph applies.

(i) Withdrawal by accused. If after acceptance of the plea but before the sentence is announced the accused requests to withdraw a plea of guilty and substitute a plea of not guilty or a plea of guilty to a lesser included offense, the military judge may as a matter of discretion permit the accused to do so.

(ii) Statements by accused inconsistent with plea. If after findings but before the sentence is announced the accused makes a statement to the court-martial, in testimony or otherwise, or presents evidence which is inconsistent with a plea of guilty on which a finding is based, the military judge must inquire into the providence of the plea. If, following such inquiry, it appears that the accused entered the plea improvidently or through lack of understanding of its meaning and effect a plea of not guilty must be entered as to the affected charges and specification.

(iii) Pretrial agreement inquiry. After sentence is announced the military judge must inquire into any parts of a pretrial agreement which were not previously examined by the military judge. If the military judge determines that the accused does not understand the material terms of the agreement, or that the parties disagree as to such terms, the military judge must conform, with the consent of the State, the agreement to the accused's under standing or permit the accused to withdraw the plea.

(i) Questionnaires. Before trial the trial counsel may, and must upon request of the defense counsel, submit to each member written questions requesting the following information:

(ii) Other materials. A copy of any written materials considered by the convening authority in selecting the members detailed to the court-martial must be provided to any party upon request, except that such materials pertaining solely to persons who were not selected for detail as members need not be provided unless the military judge, for good cause, so directs.

(i) Motion. Before the examination of members under paragraph (4) of this subdivision begins, or at the next session after a party discovered or could have discovered by the exercise of diligence, the grounds therefor, whichever is earlier, that party may move to stay the proceedings on the ground that members were selected improperly.

(ii) Procedure. Upon a motion under subparagraph (i) of this paragraph containing an offer of proof of matters which, if true, would constitute improper selection of members, the moving party is entitled to present evidence, including any written materials considered by the convening authority in selecting the members. Any other party may also present evidence on the matter. If the military judge determines that the members have been selected improperly, the military judge must stay any proceedings requiring the presence of members until members are properly selected.

(iii) Waiver. Failure to make a timely motion under this paragraph waives the improper selection unless it constitutes a violation of N.Y.R.C.M. 501(a), 502(a)(1), or 503(a)(2).

(i) Grounds. A member must be excused for cause whenever it appears that the member:

(ii) When made.

(iii) Procedure. Each party may make challenges outside the presence of the members. The party making a challenge must state the grounds for it. Ordinarily the trial counsel enters any challenges for cause before the defense counsel. The military judge rules finally on each challenge. When a challenge for cause is granted, the member concerned is excused. The burden of establishing that grounds for a challenge exist is upon the party making the challenge. A member successfully challenged must be excused.

(iv) Waiver. The grounds for challenge is clause (i)(a) of this paragraph may not be waived except that membership of enlisted members in the same unit as the accused may be waived. Membership of enlisted members in the same unit as the accused and any other ground for challenge is waived if the party knew of or could have discovered by the exercise of diligence the ground for challenge and failed to raise it in a timely manner. Notwithstanding the absence of a challenge or waiver of challenge by the parties, the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie. When a challenge for cause has been denied, failure by the challenging party to exercise a peremptory challenge against any member constitutes waiver of further consideration of the challenge upon later review. However, when a challenge for cause is denied, a peremptory challenge by the challenging party against any member preserves the issue for later review, provided that when the member who was unsuccessfully challenged for cause is peremptorily challenged by the same party, that party must state that it would have exercised its peremptory challenge against another member is the challenge for cause had been granted.

(i) Procedure. Each party may challenge one member peremptorily (130.41[b], ML). Any member so challenged must be excused. No party may be required to exercise a peremptory challenge before the examination of members and determination of any challenges for cause has been completed. Ordinarily the trial counsel enters any peremptory challenge before the defense.

(ii) Waiver. Failure to exercise a peremptory challenge when properly called upon to do so waives the right to make such a challenge. The military judge may, for good cause shown, grant relief from the waiver, but a peremptory challenge may not be made after the presentation of evidence before the members has begun. However, nothing in this paragraph bars the exercise of a previously unexercised peremptory challenge against a member newly detailed under N.Y.R.C.M. 505(c)(2)(B), even if presentation of evidence on the merits has begun.

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

(ii) For purposes of this subdivision witness includes one who testifies at a court-martial and anyone whose declaration is received in evidence for any purpose, including written declarations made by affidavit or otherwise.

(iii) For purpose of this subdivision, investigating officer includes any person who has investigated charges under N.Y.R.C.M. 405 and any person who as counsel for a member of a court of inquiry, or otherwise personally has conducted an investigation of the general matter involving the offenses charged.

(i) Order of presentation. Ordinarily the following sequence is followed:

(ii) Taking testimony. The testimony of witnesses is taken orally in open session, unless otherwise provided in this Chapter.

(iii) Views and inspections. The military judge may, as a matter of discretion, permit the court-martial to view or inspect premises or a place or an article or object. Such a view or inspection may take place only in the presence of all parties, the members (if any), and the military judge. A person familiar with the scene may be designated by the military judge to escort the court-martial. Such person must perform the duties of escort under oath. The escort cannot testify, but may point out particular features prescribed by the military judge. Any statement made at the view or inspection by the escort, a party, the military judge, or any member must be made part of the record.

(iv) Evidence subject to exclusion. When offered evidence would be subject to exclusion upon objection, the military judge may, as a matter of discretion, bring the matter to the attention of the parties and may, in the interest of justice, exclude the evidence without an objection by a party.

(v) Reopening case. The military judge may, as a matter of discretion, permit a party to reopen its case after it has rested.

(i) in the case of a witness called by the trial counsel, in the possession of the State; or

(ii) in the case of a witness called by the defense, in the possession of the accused or defense counsel.

(i) a written statement made by the witness that is signed or otherwise adopted or approved by the witness;

(ii) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or

(iii) a statement, however taken or recorded, or a transcription thereof, made by the witness to a State grand jury.

(i) Withdrawal of charges. A declaration of a mistrial has the effect of withdrawing the affected charges and specifications from the court-martial.

(ii) Further proceedings. A declaration of a mistrial does not prevent trial by another court-martial on the affected charges and specifications except when the mistrial was declared after jeopardy attached and before findings, and the declaration was:

(i) Certain assaults. It is a defense to any assault punishable under ML, 130.86 or 130.87 that the accused:

(ii) Loss of right to self-defense. The right to self-defense is lost and the defense described in subparagraph (i)(1) of this paragraph does not apply if the accused was an aggressor, engaged in mutual combat, or provoked the attack which gave rise to the apprehension, unless the accused had withdrawn in good faith after the aggression, combat, or provocation and before the offense alleged occurred.

(iii) Defense of another. The principle of self-defense under subparagraphs (i) and (ii) of this paragraph apply to defense of another. It is a defense to any assault under ML, 130.86 or 130.87 that the accused acted in defense of another, provided that the accused may not use more force than the person defended was lawfully entitled to use under the circumstances.

(i) Lack of mental responsibility. It is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense.

(ii) Partial mental responsibility. A mental condition not amounting to a general lack of mental responsibility under subparagraph (i) of this paragraph but which produces a lack of mental ability at the time of the offense to possess actual knowledge or to entertain a specific intent or a premeditated design to kill is a defense to an offense having one of these states of mind as an element.

(iii) Procedure.

(i) Ignorance or mistake of law. Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense.

(ii) Voluntary intoxication. Voluntary intoxication, whether caused by alcohol or drugs, is not a defense. However, evidence of any degree of voluntary intoxication may be introduced for the purpose of raising a reasonable doubt as to the existence of actual knowledge, specific intent, willfulness, or a premeditated design to kill, if actual knowledge, specific intent, willfulness, or premeditated design to kill is an element of the offense.

(i) As to a specification. General findings as to a specification may be: guilty; guilty with exceptions, with or without substitutions, not guilty of the exceptions but guilty of any substitutions; not guilty only by reason of lack of mental responsibility; or not guilty. Exceptions and substitution may not be used to substantially change the nature of the offense or to increase the seriousness of the offense or the maximum punishment for it.

(ii) As to a charge. General findings as to a charge may be: guilty; not guilty, but guilty of a violation of section ______; not guilty only by reason of lack of mental responsibility; or not guilty.

(i) a description of the elements of each offense charged, unless findings on such offenses are unnecessary because they have been entered pursuant to a plea of guilty;

(ii) a description of the elements of each lesser included offense in issue;

(iii) a description of any special defense under N.Y.R.C.M. 915 in issue;

(iv) a direction that only matters properly before the court-martial may be considered;

(v) a charge that:

(vi) directions on the procedures under N.Y.R.C.M. 920 for deliberations and voting; and

(vii) such other explanations, descriptions, or directions as may be necessary and which are properly requested by a party or which the military judge determines, sua sponte, should be given.

(i) Secret bills. Voting on the findings for each charge and specification must be by secret written ballot. All members present must vote.

(ii) Number or votes required to convict. A finding of guilty results only if at least two-thirds of the members present vote for a finding of guilty.

(iii) Acquittal. If fewer than two-thirds of the members present vote for a finding of guilty, a finding of not guilty has resulted as to the charge or specification on which the vote was taken.

(iv) Not guilty only by reason of lack of mental responsibility. When the defense of lack of mental responsibility is an issue under N.Y.R.C.M. 916(k)(1), the members shall first vote on whether the prosecution has proven the elements of the offense beyond a reasonable doubt. If at least two-thirds of the members present vote for a finding of guilty, then the members shall vote on whether the accused has proven lack of mental responsibility. If a majority of the members present concur that the accused has proven lack of mental responsibility by clear and convincing evidence, a finding of not guilty only by reason of lack of mental responsibility results. If the vote on lack of mental responsibility does not result in a finding of not guilty only by reason of lack of mental responsibility, then the defense of lack of mental responsibility has been rejected and the finding of guilty stands.

(v) Included offenses. Members cannot vote on a lesser included offense unless a finding of not guilty of the offense charged has been reached. If a finding of not guilty of an offense charged has been reached the members must vote on each included offense on which they have been instructed, in order of severity beginning with the most severe. The members must continue to vote on each included offense on which they have been instructed until a finding of guilty results or findings of not guilty have been reached as to each such offense.

(vi) Procedure for voting.