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

                                  2345

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 18, 2009
                               ___________

Introduced  by Sens. SCHNEIDERMAN, DIAZ, DUANE, KRUEGER, PERKINS -- 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 requiring the
  recording of statements in certain criminal investigations

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

  Section 1.  Legislative  intent.    Properly  recorded  interrogations
provide  the best evidence of the communications that occurred during an
interrogation; prevent disputes about how an officer  conducted  himself
or  herself  or treated a suspect during the course of an interrogation;
prevent a defendant from lying  about  his  or  her  account  of  events
originally provided to law enforcement; spare judges and jurors the time
necessary  to  assess  which account of an interrogation to believe; and
enhance public confidence in the criminal investigation process.  It  is
the  intent of this legislature to require the video and audio recording
of custodial interrogations in New York state.
  S 2. The criminal procedure law is amended by  adding  a  new  section
60.53 to read as follows:
S  60.53  RULES  OF EVIDENCE; ELECTRONIC RECORDING OF CUSTODIAL INTERRO-
GATION.
  1. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING  TERMS  SHALL  HAVE
THE FOLLOWING MEANINGS:
  (A) "CUSTODIAL INTERROGATION" MEANS AN INTERVIEW, BEGINNING WITH A LAW
ENFORCEMENT  OFFICER'S  ADVICE  OF  A PERSON'S MIRANDA RIGHTS AND ENDING
WHEN THE INTERVIEW HAS COMPLETELY FINISHED, WHICH OCCURS WHILE A  PERSON
REASONABLY BELIEVES HE OR SHE IS IN CUSTODY, INVOLVING A LAW ENFORCEMENT
OFFICER'S  QUESTIONING THAT IS REASONABLY LIKELY TO ELICIT INCRIMINATING
RESPONSES.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02813-01-9

S. 2345                             2
              

  (B) "PLACE OF DETENTION" MEANS A JAIL, POLICE  OR  SHERIFF'S  STATION,
HOLDING  CELL,  CORRECTIONAL  OR DETENTION FACILITY OF OTHER PLACE WHERE
PERSONS ARE QUESTIONED IN CONNECTION WITH CRIMINAL CHARGES.
  (C) "ELECTRONIC RECORDING" OR "ELECTRONICALLY RECORDED" MEANS AN AUDIO
AND VISUAL RECORDING THAT IS AN AUTHENTIC, ACCURATE AND UNALTERED RECORD
OF A CUSTODIAL INTERROGATION.
  (D)  "STATEMENT"  MEANS  ANY  ORAL,  WRITTEN,  SIGN LANGUAGE OR VERBAL
COMMUNICATION.
  2. (A) ALL STATEMENTS MADE BY A PERSON  DURING  A  CUSTODIAL  INTERRO-
GATION  AT  A  PLACE OF DETENTION RELATING TO A FELONY OFFENSE OR FELONY
OFFENSES BROUGHT UNDER THIS CHAPTER SHALL BE ELECTRONICALLY RECORDED.
  (B) IF ANY PART OF THE INTERROGATION NECESSARILY TAKES  PLACE  OUTSIDE
OF A PLACE OF DETENTION, AUDIO RECORDING IS AN ACCEPTABLE ALTERNATIVE TO
AUDIO AND VISUAL RECORDING.
  (C)  IN PLACES OF DETENTION, THE CAMERA SHALL BE FOCUSED UPON BOTH THE
INTERROGATOR AND THE SUSPECT SIMULTANEOUSLY.
  3. EXCEPT AS PROVIDED IN SUBDIVISIONS FOUR AND FIVE OF  THIS  SECTION,
ALL  STATEMENTS  MADE  BY A PERSON DURING A CUSTODIAL INTERROGATION THAT
ARE NOT ELECTRONICALLY  RECORDED, AND ALL STATEMENTS MADE THEREAFTER  BY
THE PERSON DURING THE CUSTODIAL INTERROGATIONS, INCLUDING BUT NOT LIMIT-
ED TO STATEMENTS THAT ARE ELECTRONICALLY RECORDED, SHALL BE INADMISSIBLE
AS EVIDENCE AGAINST THE PERSON IN ANY FELONY CRIMINAL PROCEEDING BROUGHT
AGAINST SUCH PERSON.
  4. THE PRESUMPTION OF INADMISSIBILITY OF STATEMENTS PROVIDED IN SUBDI-
VISION  THREE  OF THIS SECTION MAY BE OVERCOME, AND STATEMENTS THAT WERE
NOT ELECTRONICALLY RECORDED MAY BE ADMITTED INTO EVIDENCE  IN  A  FELONY
CRIMINAL PROCEEDING BROUGHT AGAINST THE PERSON, IF THE COURT FINDS:
  (A)  THAT  THE  STATEMENTS  ARE  ADMISSIBLE  UNDER APPLICABLE RULES OF
EVIDENCE; AND
  (B) THAT THE STATEMENTS ARE PROVEN TO HAVE BEEN MADE VOLUNTARILY,  AND
ARE RELIABLE; AND
  (C)  THAT  LAW  ENFORCEMENT PERSONNEL MADE A CONTEMPORANEOUS RECORD OF
THE REASON FOR NOT MAKING AN ELECTRONIC RECORDING OF THE STATEMENTS; AND
  (D) THAT IT IS PROVEN THAT ONE OR MORE OF THE FOLLOWING  CIRCUMSTANCES
EXISTED AT THE TIME OF THE CUSTODIAL INTERROGATION:
  (I)  THE  QUESTIONS  PUT  FORTH  BY LAW ENFORCEMENT PERSONNEL, AND THE
PERSON'S RESPONSIVE STATEMENTS, WERE PART OF THE ROUTINE  PROCESSING  OR
"BOOKING" OF THE PERSON; OR
  (II)   BEFORE  OR  DURING  A  CUSTODIAL  INTERROGATION,  AFTER  HAVING
CONSULTED WITH HIS OR HER LAWYER, THE PERSON INDICATED THAT  HE  OR  SHE
WOULD  ONLY  RESPOND TO THE OFFICER'S QUESTIONS IF HIS OR HER STATEMENTS
WERE NOT ELECTRONICALLY RECORDED AND A RECORD IS MADE OF  SUCH  REFUSAL;
OR
  (III)  THE  CUSTODIAL  INTERROGATION NECESSARILY TOOK PLACE IN ANOTHER
JURISDICTION AND WAS CONDUCTED BY  OFFICIALS  OF  THAT  JURISDICTION  IN
COMPLIANCE WITH THE LAW OF THAT JURISDICTION; OR
  (IV)  EXIGENT  CIRCUMSTANCES EXISTED WHICH PREVENTED THE MAKING OF, OR
RENDERED IT NOT FEASIBLE TO MAKE, AN ELECTRONIC RECORDING OF THE  CUSTO-
DIAL INTERROGATION.
  5.  STATEMENTS,  WHETHER  OR  NOT  ELECTRONICALLY  RECORDED, WHICH ARE
ADMISSIBLE UNDER APPLICABLE RULES OF EVIDENCE, AND ARE PROVEN  BY  CLEAR
AND CONVINCING EVIDENCE TO HAVE BEEN MADE BY THE PERSON VOLUNTARILY, AND
ARE  RELIABLE,  MAY  BE  ADMITTED  INTO  EVIDENCE  IN  A FELONY CRIMINAL
PROCEEDING BROUGHT AGAINST THE PERSON IF THE COURT FINDS:
  (A) THE CUSTODIAL INTERROGATION OCCURRED BEFORE A GRAND JURY OR COURT;
OR

S. 2345                             3

  (B) THE PERSON AGREED  TO  PARTICIPATE  IN  A  NON-RECORDED  CUSTODIAL
INTERROGATION AFTER HAVING CONSULTED WITH HIS OR HER LAWYER.
  6. (A) COMPLIANCE WITH THE ELECTRONIC RECORDING REQUIREMENTS SET FORTH
IN THIS SECTION SHALL BE MONITORED BY THE OFFICE OF COURT ADMINISTRATION
THROUGH THE SUBMISSION OF FORMS BY THE TRIAL JUDGE AND THE PROSECUTOR IN
EACH  CASE OF AN INTERROGATION THAT WAS NOT RECORDED BUT WAS NONETHELESS
INTRODUCED AS EVIDENCE IN A CRIMINAL CASE. THESE FORMS SHALL  BE  DEVEL-
OPED  BY  THE  OFFICE OF COURT ADMINISTRATION, WITH THE EXPECTATION THAT
THE REPORTING FORMS SHALL IDENTIFY ANY PATTERNS OF NONCOMPLIANCE.
  (B) COMPLIANCE WITH THE ELECTRONIC RECORDING REQUIREMENTS SET FORTH IN
THIS SECTION SHALL BE MONITORED BY  THE  DIVISION  OF  CRIMINAL  JUSTICE
SERVICES THROUGH THE SUBMISSION OF FORMS BY THE INTERROGATING OFFICER OR
OFFICERS  IN  EACH  CASE  OF  AN  UNRECORDED  CONFESSION, BOTH THOSE NOT
PRESUMED INADMISSIBLE INTO EVIDENCE UNDER SUBPARAGRAPHS (II), (III)  AND
(IV)  OF  PARAGRAPH  (D)  OF  SUBDIVISION FOUR OF THIS SECTION, OR THOSE
INADMISSIBLE UNDER THIS SECTION. THESE FORMS SHALL BE DEVELOPED  BY  THE
DIVISION  OF  CRIMINAL  JUSTICE  SERVICES, WITH THE EXPECTATION THAT THE
REPORTING FORMS SHALL IDENTIFY ANY PATTERNS OF NONCOMPLIANCE.
  7.(A) EVERY ELECTRONIC RECORDING OF A CUSTODIAL INTERROGATION SHALL BE
CLEARLY IDENTIFIED AND CATALOGUED BY LAW ENFORCEMENT PERSONNEL.
  (B) IF A FELONY CRIMINAL PROCEEDING IS BROUGHT AGAINST  A  PERSON  WHO
WAS  THE  SUBJECT OF AN ELECTRONICALLY RECORDED CUSTODIAL INTERROGATION,
THE ELECTRONIC RECORDING SHALL BE PRESERVED BY LAW ENFORCEMENT PERSONNEL
UNTIL ALL APPEALS, POST-CONVICTION AND  HABEAS  CORPUS  PROCEEDINGS  ARE
FINAL  AND CONCLUDED, OR THE TIME WITHIN WHICH THEY SHALL BE BROUGHT HAS
EXPIRED.
  (C) IF NO FELONY CRIMINAL PROCEEDING IS BROUGHT AGAINST A  PERSON  WHO
HAS  BEEN  THE  SUBJECT OF AN ELECTRONICALLY RECORDED CUSTODIAL INTERRO-
GATION, THE RELATED ELECTRONIC  RECORDING  SHALL  BE  PRESERVED  BY  LAW
ENFORCEMENT PERSONNEL UNTIL ALL APPLICABLE STATE AND FEDERAL STATUTES OF
LIMITATIONS BAR PROSECUTION OF THE PERSON.
  S 3. This act shall take effect on the first of November next succeed-
ing  the  date  on  which  it shall have become a law and shall apply to
custodial interrogations occurring on or after such effective date.