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

                                  3416

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             March 18, 2009
                               ___________

Introduced  by  Sens.  YOUNG,  LARKIN,  MORAHAN, PADAVAN, SALAND -- read
  twice and ordered printed, and when printed to  be  committed  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, subdivision
7 and  paragraph (k) of subdivision 10 of section 65.20  as  amended  by
chapter  320 of the laws of 2006, subdivision 1 of section 65.10 and the
opening paragraph of subdivision 10 of section 65.20  as amended, subdi-
vision 2 of section 65.20 as added, 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, and subdivisions 11  and  12    of  section  65.20  as
amended  by  chapter  455  of  the  laws  of 1991, 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.
        65.30  Closed-circuit television;  special  testimonial  [proce-
                 dure] PROCEDURES.
S 65.00 Definitions.
  As used in this article:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07525-02-9
              

S. 3416                             2

  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  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.
  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. 3416                             3

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] SUCH witness would suffer serious mental or emotional  harm  that
would  substantially  impair the [child] 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
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.

S. 3416                             4

  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]  SIX  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
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.

S. 3416                             5

  (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
cooperate 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  VICTIM  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] TEN and [eleven] TWELVE of this section,
before  determining  that  the  child  witness  OR THE DOMESTIC VIOLENCE
VICTIM WITNESS is vulnerable.
  12. In deciding whether a  child  witness  OR  THE  DOMESTIC  VIOLENCE
VICTIM  WITNESS  is  vulnerable,  the  court shall make findings of fact

S. 3416                             6

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  defend-
ant'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
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

S. 3416                             7

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 TITLE.  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.