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

                                  10262

                          I N  A S S E M B L Y

                              May 16, 2012
                               ___________

Introduced  by M. of A. GALEF -- 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, 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:
  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02699-01-1
              

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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 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

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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 TITLE 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.
  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-

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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.
  (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.

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  (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
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

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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
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

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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.