S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4338

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 3, 2009
                               ___________

Introduced  by  M.  of A. HYER-SPENCER -- Multi-Sponsored by -- M. of A.
  ABBATE, ALFANO,  BRENNAN,  BURLING,  CALHOUN,  CARROZZA,  CHRISTENSEN,
  CONTE,  CUSICK,  DelMONTE,  DIAZ,  DUPREY,  ERRIGO, FIELDS, GABRYSZAK,
  GIGLIO, GOTTFRIED, GREENE, GUNTHER, HAYES, HOOPER, HOYT, JAFFEE, KOLB,
  KOON, MAISEL, McDONOUGH, MOLINARO, OAKS, PEOPLES, PHEFFER, RAIA, REIL-
  LY, SCHIMMINGER, SPANO, THIELE, TITONE, TOBACCO,  WALKER,  WEISENBERG,
  ZEBROWSKI -- read once and referred to the Committee on Codes

AN  ACT  to amend the criminal procedure law, in relation to authorizing
  the use of closed-circuit television for vulnerable domestic  violence
  victim witnesses

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Article 65 of the criminal procedure law, as added by chap-
ter 505 of the laws of 1985, subdivision 1 of section 65.00, and  subdi-
vision 7 and paragraph (k) of subdivision 10 of section 65.20 as amended
by  chapter  320  of the laws of 2006, subdivisions 11 and 12 of section
65.20 as amended by chapter 455 of the laws of 1991,  subdivision  1  of
section  65.10  as amended, subdivision 2 of section 65.20 as added, the
opening paragraph of subdivision 10 of section  65.20  as  amended,  and
subdivisions  3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of section 65.20 as
renumbered by chapter 548 of the laws of 2007, is  amended  to  read  as
follows:
                                ARTICLE 65
                  USE OF CLOSED-CIRCUIT TELEVISION FOR
                        CERTAIN [CHILD] WITNESSES

Section 65.00  Definitions.
        65.10  Closed-circuit  television;  general rule; declaration of
                 vulnerability.
        65.20  Closed-circuit television; procedure for application  and
                 grounds for determination.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07525-01-9
              

A. 4338                             2

        65.30  Closed-circuit  television;  special  testimonial [proce-
                 dure] PROCEDURES.
S 65.00 Definitions.
  As used in this article:
  1. "Child witness" means a person fourteen years old or less who is or
will  be  called to testify in a criminal proceeding, other than a grand
jury proceeding, concerning an offense defined in  article  one  hundred
thirty  of the penal law or section 255.25, 255.26 or 255.27 of such law
which is the subject of such criminal proceeding.
  2. "DOMESTIC VIOLENCE VICTIM WITNESS" MEANS AN  INDIVIDUAL  WHO  IS  A
VICTIM  OF  A  FAMILY  OFFENSE, AS DEFINED IN SUBDIVISION ONE OF SECTION
530.11 OF THIS CHAPTER, OR AN OFFENSE COMMITTED  BY  A  MEMBER  OF  SUCH
INDIVIDUAL'S  IMMEDIATE FAMILY AS DEFINED IN SUBDIVISION FOUR OF SECTION
120.40 OF THE PENAL LAW.
  3. "Vulnerable [child] witness" means a child witness  OR  A  DOMESTIC
VIOLENCE VICTIM WITNESS whom a court has declared to be vulnerable.
  [3.] 4. "Testimonial room" means any room, separate and apart from the
courtroom,  which  is  furnished  comfortably  and  less formally than a
courtroom and from which the testimony of a vulnerable child witness can
be transmitted to the courtroom by means of live, two-way closed-circuit
television.
  [4.] 5. "Live, two-way closed-circuit television" means a simultaneous
transmission, by closed-circuit television, or other  electronic  means,
between  the  courtroom  and the testimonial room in accordance with the
provisions of section 65.30 OF THIS ARTICLE.
  [5.] 6. "Operator" means the individual authorized  by  the  court  to
operate  the closed-circuit television equipment used in accordance with
the provisions of this article.
  [6.] 7. A person occupies "a position of authority with respect  to  a
child"  when he or she is a parent, guardian or other person responsible
for the custody or care of [the] A child at the relevant time or is  any
other  person  who  maintains an ongoing personal relationship with such
parent, guardian or other person responsible for custody or care,  which
relationship  involves  his  or  her  living, or his or her frequent and
repeated presence, in the same household or premises as the child.
S 65.10 Closed-circuit television; general rule; declaration of  vulner-
          ability.
  1.  A  child  witness  OR  A DOMESTIC VIOLENCE VICTIM WITNESS shall be
declared vulnerable when the court, in accordance with the provisions of
section 65.20 OF  THIS  ARTICLE,  determines  by  clear  and  convincing
evidence  that  it  is  likely  that such child witness OR SUCH DOMESTIC
VIOLENCE VICTIM WITNESS will suffer serious mental or emotional harm  if
required  to  testify  at a criminal proceeding without the use of live,
two-way closed-circuit television and that the use of such live, two-way
closed-circuit television will diminish the  likelihood  or  extent  of,
such harm.
  2.  When  the  court  declares  a child witness OR A DOMESTIC VIOLENCE
VICTIM WITNESS to be vulnerable, it shall, except as provided in  subdi-
vision  four  of  section 65.30 OF THIS ARTICLE, authorize the taking of
the testimony of the vulnerable [child]  witness  from  the  testimonial
room  by  means  of  live, two-way closed-circuit television.   Under no
circumstances shall the provisions  of  this  article  be  construed  to
authorize  a  closed-circuit  television  system  by which events in the
courtroom are not transmitted to the testimonial room during the  testi-
mony of the vulnerable [child] witness.

A. 4338                             3

  3.  Nothing  [herein] IN THIS ARTICLE shall be [contrued] CONSTRUED to
preclude the court from exercising its power to close the  courtroom  or
from exercising any authority it otherwise may have to protect the well-
being of a witness and the rights of the defendant.
S 65.20 Closed-circuit television; procedure for application and grounds
          for determination.
  1. Prior to the commencement of a criminal proceeding[;], other than a
grand  jury proceeding, either party may apply to the court for an order
declaring that a child witness OR A DOMESTIC VIOLENCE VICTIM WITNESS  is
vulnerable.
  2.  A  child  witness  OR A DOMESTIC VIOLENCE VICTIM WITNESS should be
declared vulnerable when the court, in accordance with the provisions of
this section, determines by clear and convincing evidence that the child
witness OR THE DOMESTIC VIOLENCE VICTIM  WITNESS  would  suffer  serious
mental  or  emotional  harm  that  would  substantially impair the child
witness' OR THE DOMESTIC VIOLENCE VICTIM WITNESS' ability to communicate
with the finder of fact without the use of live, two-way  closed-circuit
television.
  3.  A  motion pursuant to subdivision one of this section must be made
in writing at least eight days before the commencement of trial or other
criminal proceeding upon reasonable notice to the other party  and  with
an opportunity to be heard.
  4.  The  motion  papers  must  state the basis for the motion and must
contain sworn allegations of fact which, if true, would support a deter-
mination by the court that the child witness OR  THE  DOMESTIC  VIOLENCE
VICTIM  WITNESS  is  vulnerable.  Such allegations may be based upon the
personal knowledge of the  deponent  or  upon  information  and  belief,
provided  that, in the latter event, the sources of such information and
the grounds for such belief are stated.
  5. The answering papers may admit or deny any of the alleged facts and
may, in addition, contain sworn allegations  of  fact  relevant  to  the
motion,  including  the rights of the defendant, the need to protect the
child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS and the  integrity
of the truth-finding function of the trier of fact.
  6.  Unless  all  material  facts alleged in support of the motion made
pursuant to subdivision one of this  section  are  conceded,  the  court
shall,  in  addition  to examining the papers and hearing oral argument,
conduct an appropriate hearing for the purpose  of  making  findings  of
fact essential to the determination of the motion. Except as provided in
subdivision  [six]  SEVEN  of  this section, it may subpoena or call and
examine witnesses, who must either testify under oath or be permitted to
give unsworn testimony pursuant to subdivision two of section  60.20  OF
THIS  ARTICLE and must authorize the attorneys for the parties to do the
same.
  7. Notwithstanding any other provision of law, the  child  witness  OR
THE DOMESTIC VIOLENCE VICTIM WITNESS who is alleged to be vulnerable may
not  be compelled to testify at such hearing or to submit to any psycho-
logical or psychiatric examination. The failure of the child witness  OR
THE  DOMESTIC  VIOLENCE  VICTIM WITNESS to testify at such hearing shall
not be a ground for denying a motion made pursuant to subdivision one of
this section. Prior statements made by the child witness relating to any
allegations of conduct constituting an offense defined  in  article  one
hundred  thirty of the penal law or incest as defined in section 255.25,
255.26 or 255.27 of such law, or PRIOR  STATEMENTS  MADE  BY  THE  CHILD
WITNESS  OR THE DOMESTIC VIOLENCE VICTIM WITNESS RELATING to any allega-
tion of words or conduct constituting an attempt to prevent,  impede  or

A. 4338                             4

deter  [the child] SUCH witness from cooperating in the investigation or
prosecution  of  the  offense  shall  be  admissible  at  such  hearing,
provided, however, that a declaration that a child witness OR A DOMESTIC
VIOLENCE  VICTIM WITNESS is vulnerable may not be based solely upon such
prior statements.
  8. (a) Notwithstanding any of the provisions of article forty-five  of
the  civil practice law and rules, any physician, psychologist, nurse or
social worker who has treated a child witness  OR  A  DOMESTIC  VIOLENCE
VICTIM  WITNESS  may testify at a hearing conducted pursuant to subdivi-
sion [five] SIX of this section concerning the treatment of  such  child
witness  OR  SUCH  DOMESTIC  VIOLENCE  VICTIM  WITNESS as such treatment
relates to the issue presented at the hearing, provided that any  other-
wise  applicable  statutory privileges concerning communications between
the child witness OR THE  DOMESTIC  VIOLENCE  VICTIM  WITNESS  and  such
physician,  psychologist, nurse or social worker in connection with such
treatment shall not be deemed waived by such testimony alone, except  to
the  limited  extent  of permitting the court alone to examine in camera
reports, records or documents,  if  any,  prepared  by  such  physician,
psychologist, nurse or social worker. If upon such examination the court
determines  that  such  reports,  records  or  documents,  or any one or
portion thereof, contain information material and relevant to the  issue
of  whether the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS is
a vulnerable [child] witness, the court shall disclose such  information
to both the attorney for the defendant and the district attorney.
  (b)  At  any time after a motion has been made pursuant to subdivision
one of this section, upon the demand of the other party the moving party
must furnish the demanding party with a copy of  any  and  all  of  such
records,  reports  or  other  documents  in the possession of such other
party and must, in addition, supply the court with a copy  of  all  such
reports, records or other documents which are the subject of the demand.
At any time after a demand has been made pursuant to this paragraph, the
moving  party  may demand that property of the same kind or character in
possession of the party that originally made such demand be furnished to
the moving party and, if so furnished, be supplied, in addition, to  the
court.
  9.  (a) Prior to the commencement of the hearing conducted pursuant to
subdivision five of this section, the district attorney  shall,  subject
to  a protective order, comply with the provisions of subdivision one of
section 240.45 of this chapter as they  concern  any  witness  whom  the
district  attorney  intends to call at the hearing and the child witness
OR THE DOMESTIC VIOLENCE VICTIM WITNESS.
  (b) Before a defendant calls a witness at  such  hearing,  he  or  she
must,  subject  to  a  protective  order,  comply with the provisions of
subdivision two of section 240.45 of this chapter as  they  concern  all
the witnesses the defendant intends to call at such hearing.
  10.  The  court may consider, in determining whether there are factors
which would cause the child witness  OR  THE  DOMESTIC  VIOLENCE  VICTIM
WITNESS  to  suffer serious mental or emotional harm, a finding that any
one or more of the following  circumstances  have  been  established  by
clear and convincing evidence:
  (a) The manner of the commission of the offense of which the defendant
is  accused was particularly heinous or was characterized by aggravating
circumstances.
  (b) The child witness OR  THE  DOMESTIC  VIOLENCE  VICTIM  WITNESS  is
particularly  young  or  otherwise particularly subject to psychological

A. 4338                             5

harm on account of a physical or mental condition which  existed  before
the alleged commission of the offense.
  (c) At the time of the alleged offense, the defendant occupied a posi-
tion of authority with respect to the child witness.
  (d)  The offense or offenses charged were part of an ongoing course of
conduct committed by the defendant against  the  child  witness  OR  THE
DOMESTIC VIOLENCE VICTIM WITNESS over an extended period of time.
  (e)  A deadly weapon or dangerous instrument was allegedly used during
the commission of the crime.
  (f) The defendant has inflicted serious physical injury upon the child
witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS.
  (g) A threat, express or implied, of physical violence  to  the  child
witness  OR  THE  DOMESTIC VIOLENCE VICTIM WITNESS, or a third person if
[the child] SUCH witness were to report the incident to  any  person  or
communicate information to or cooperate with a court, grand jury, prose-
cutor,  police officer or peace officer concerning the incident has been
made by or on behalf of the defendant.
  (h) A threat, express or implied, of the incarceration of a parent  or
guardian  of  the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS,
the removal of the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS
from the family or the dissolution of the family of the child witness OR
THE DOMESTIC VIOLENCE VICTIM WITNESS if [the child] SUCH witness were to
report the incident to any person or communicate information to or coop-
erate with a court, grand jury,  prosecutor,  police  officer  or  peace
officer  concerning  the  incident  has been made by or on behalf of the
defendant.
  (i) A witness other than the child witness OR  THE  DOMESTIC  VIOLENCE
VICTIM  WITNESS  has  received a threat of physical violence directed at
such witness or to a third person by or on behalf of the defendant.
  (j) The defendant, at the time of the inquiry, (i) is  living  in  the
same  household  with  the child witness OR THE DOMESTIC VIOLENCE VICTIM
WITNESS, (ii) has ready access to the  child  witness  OR  THE  DOMESTIC
VIOLENCE  VICTIM  WITNESS  or  (iii)  is providing substantial financial
support for the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS.
  (k) The child witness OR THE DOMESTIC VIOLENCE WITNESS has  previously
been  the  victim of an offense defined in article one hundred thirty of
the penal law or incest as defined in section 255.25, 255.26  or  255.27
of such law.
  (l)  According  to expert testimony, the child witness OR THE DOMESTIC
VIOLENCE VICTIM WITNESS would be particularly  [suceptible]  SUSCEPTIBLE
to  psychological  harm  if  required to testify in open court or in the
physical presence of the defendant.
  11. Irrespective of whether a motion was made pursuant to  subdivision
one of this section, the court, at the request of either party or on its
own  motion,  may  decide  that  a  child witness OR A DOMESTIC VIOLENCE
VICTIM WITNESS may be vulnerable based on its own  observations  that  a
child  witness OR A DOMESTIC VIOLENCE VICTIM WITNESS who has been called
to testify at a  criminal  proceeding  is  suffering  severe  mental  or
emotional harm and therefore is physically or mentally unable to testify
or  to  continue to testify in open court or in the physical presence of
the defendant and that the use of  live,  two-way  closed-circuit  tele-
vision  is  necessary  to enable [the child] SUCH witness to testify. If
the court so decides, it must conduct the same hearing that  subdivision
[five]  SIX  of  this section requires when a motion is made pursuant to
subdivision one of this section, and  it  must  make  findings  of  fact
pursuant  to  subdivisions  [nine  and  eleven]  TEN  AND TWELVE of this

A. 4338                             6

section, before determining that  the  child  witness  OR  THE  DOMESTIC
VIOLENCE VICTIM WITNESS is vulnerable.
  12.  In deciding whether a child witness OR A DOMESTIC VIOLENCE VICTIM
WITNESS is vulnerable, the court  shall  make  findings  of  fact  which
reflect the causal relationship between the existence of any one or more
of  the  factors  set forth in subdivision [nine] TEN of this section or
other relevant factors which the court finds  are  established  and  the
determination  that  the  child  witness OR THE DOMESTIC VIOLENCE VICTIM
WITNESS is vulnerable.  If the court is satisfied that the child witness
OR THE DOMESTIC VIOLENCE VICTIM WITNESS is vulnerable  and  that,  under
the  facts  and  circumstances  of  the particular case, the defendant's
constitutional rights to an impartial jury or of confrontation will  not
be  impaired, it may enter an order granting the application for the use
of live, two-way closed-circuit television.
  13. When the court has determined that a child witness OR  A  DOMESTIC
VIOLENCE VICTIM WITNESS is a vulnerable [child] witness, it shall make a
specific  finding  as  to  whether  placing  the defendant and the child
witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS in the same room  during
the  testimony  of  the  child  witness  OR THE DOMESTIC VIOLENCE VICTIM
WITNESS will contribute to the likelihood that [the child] SUCH  witness
will  suffer  severe  mental  or emotional harm. If the court finds that
placing the defendant and the child witness  OR  THE  DOMESTIC  VIOLENCE
VICTIM  WITNESS  in  the  same  room  during  the testimony of the child
witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS will contribute  to  the
likelihood  that  [the  child] SUCH witness will suffer severe mental or
emotional harm, the  order  entered  pursuant  to  subdivision  [eleven]
TWELVE  of  this  section  shall direct that the defendant remain in the
courtroom during the testimony of the vulnerable [child] witness.
S 65.30 Closed-circuit television; special testimonial procedures.
  1. When the court has entered an order pursuant to  section  65.20  OF
THIS  ARTICLE,  the testimony of the vulnerable [child] witness shall be
taken in the testimonial room and the image and voice of the  vulnerable
[child]  witness,  as  well as the image of all other persons other than
the operator present in the testimonial room, shall be transmitted  live
by  means  of  closed-circuit television to the courtroom. The courtroom
shall be equipped with monitors sufficient to permit  the  judge,  jury,
defendant  and  attorneys  to  observe  the  demeanor  of the vulnerable
[child] witness during his or her testimony. Unless  the  courtroom  has
been  closed pursuant to court order, the public shall also be permitted
to hear the testimony and view  the  image  of  the  vulnerable  [child]
witness.
  2.  In  all  instances,  the image of the jury shall be simultaneously
transmitted to the vulnerable [child] witness in the  testimonial  room.
If  the  court  order  issued  pursuant to section 65.20 OF THIS ARTICLE
specifies that the vulnerable [child] witness shall testify outside  the
physical  presence  of the defendant, the image of the defendant and the
image and voice of the person examining the vulnerable  [child]  witness
shall  also  be  simultaneously  transmitted  to  the vulnerable [child]
witness in the testimonial room.
  3. The operator shall place herself or himself and the  closed-circuit
television  equipment in a position that permits the entire testimony of
the vulnerable [child] witness to be transmitted to  the  courtroom  but
limits  the ability of the vulnerable [child] witness to see or hear the
operator or the equipment.
  4. Notwithstanding any provision of this article, if the  court  in  a
particular  case  involving a vulnerable [child] witness determines that

A. 4338                             7

there is no live, two-way closed-circuit television equipment  available
in  the court or another court in the county or which can be transported
to the court from another county or that such equipment,  if  available,
is  technologically  inadequate  to protect the constitutional rights of
the defendant, it shall not permit the use of the  closed-circuit  tele-
vision procedures authorized by this article.
  5. If the order of the court entered pursuant to section 65.20 OF THIS
ARTICLE  requires that the defendant remain in the courtroom, the attor-
ney for the defendant and the district attorney shall also remain in the
courtroom unless the court is  satisfied  that  their  presence  in  the
testimonial  room will not impede full and private communication between
the defendant and his or her attorney and will not encourage the jury to
draw an inference adverse to the interest of the defendant.
  6. Upon request of the defendant, the court shall  instruct  the  jury
that they are to draw no inference from the use of live, two-way closed-
circuit television in the examination of the vulnerable [child] witness.
  7.  The  vulnerable [child] witness shall testify under oath except as
specified in subdivision two of section 60.20 OF THIS ARTICLE. The exam-
ination and cross-examination of the vulnerable [child]  witness  shall,
in all other respects, be conducted in the same manner as if the vulner-
able [child] witness had testified in the courtroom.
  8. When the testimony of the vulnerable [child] witness is transmitted
from  the  testimonial  room  into the courtroom, the court stenographer
shall record the [textimony] TESTIMONY in the  same  manner  as  if  the
vulnerable [child] witness had testified in the courtroom.
  S  2.  This  act  shall take effect immediately and shall apply to all
criminal actions and proceedings commenced prior to the  effective  date
of  this  act  but  still  pending  on such date as well as all criminal
actions and proceedings commenced  on  or  after  such  effective  date.
Provided  that  the  amendments  to article 65 of the criminal procedure
law, made by section one of this act, shall not  affect  the  expiration
and repeal of such article and shall be deemed repealed therewith.