S T A T E   O F   N E W   Y O R K
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                                  1683

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 11, 2011
                               ___________

Introduced by M. of A. KAVANAGH -- read once and referred to the Commit-
  tee on Codes

AN  ACT to amend the criminal procedure law and the family court act, in
  relation to the conduct of line-ups

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

  Section  1.    The  criminal  procedure law is amended by adding a new
section 60.78 to read as follows:
S 60.78  RULES OF EVIDENCE; IDENTIFICATION PROCEDURES.
  1. DEFINITIONS. FOR PURPOSES OF THIS SECTION:
  (A) "ADMINISTRATOR" MEANS A PERSON CONDUCTING  A  PHOTO  LINEUP,  LIVE
LINEUP OR SHOWUP;
  (B)  "BLIND"  MEANS  THE  ADMINISTRATOR DOES NOT KNOW WHICH PERSON, IF
ANY, IN THE IDENTIFICATION PROCEDURE IS A SUSPECT;
  (C) "BLINDED" MEANS THE ADMINISTRATOR MAY KNOW  WHICH  PERSON  IN  THE
IDENTIFICATION  PROCEDURE  IS  A SUSPECT, BUT DOES NOT KNOW WHICH PHOTO-
GRAPH IS BEING VIEWED BY THE EYEWITNESS;
  (D) "CUSTODY" SHALL MEAN INCARCERATED, CIVILLY COMMITTED, ON PAROLE OR
PROBATION, OR SUBJECT TO SEX OFFENDER REGISTRATION;
  (E) "EYEWITNESS" MEANS A PERSON WHO OBSERVES ANOTHER PERSON AT OR NEAR
THE SCENE OF, OR ANOTHER LOCATION RELEVANT TO, AN OFFENSE;
  (F) "FILLER" MEANS EITHER A PERSON OR A PHOTOGRAPH OF A PERSON WHO  IS
NOT A SUSPECT CONCERNING THE OFFENSE BUT WHO IS INCLUDED IN AN IDENTIFI-
CATION PROCEDURE;
  (G)  "IDENTIFICATION  PROCEDURE" MEANS A LIVE LINEUP, PHOTO LINEUP, OR
SHOWUP;
  (H) "LIVE LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH  A  GROUP
OF  PERSONS,  WHICH  SHALL  INCLUDE  THE  SUSPECT  AND OTHER PERSONS NOT
SUSPECTED OF THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS FOR THE  PURPOSE
OF DETERMINING WHETHER THE EYEWITNESS MAY IDENTIFY THE SUSPECT;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01612-01-1

              

A. 1683                             2

  (I)  "PHOTO LINEUP" MEANS AN INDEMNIFICATION PROCEDURE IN WHICH PHOTO-
GRAPHS, WHICH SHALL INCLUDE  A  PHOTOGRAPH  OF  THE  SUSPECT  AND  OTHER
PERSONS  NOT  SUSPECTED  OF  THE OFFENSE, ARE DISPLAYED TO AN EYEWITNESS
EITHER IN HARD COPY FORM OR VIA COMPUTER OR OTHERWISE, FOR  THE  PURPOSE
OF DETERMINING WHETHER THE EYEWITNESS MAY IDENTIFY THE SUSPECT;
  (J)  "SHOWUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH AN EYEWITNESS
IS PRESENTED WITH A SINGLE SUSPECT FOR THE PURPOSE OF DETERMINING WHETH-
ER THE EYEWITNESS MAY IDENTIFY THE INDIVIDUAL; AND
  (K) "SUSPECT" MEANS A PERSON BELIEVED  BY  LAW  ENFORCEMENT  TO  BE  A
POSSIBLE  PERPETRATOR  OF,  OR  A PERSON OF INTEREST WITH RESPECT TO, AN
OFFENSE.
  2. EYEWITNESS  IDENTIFICATION  PROCEDURES;  GENERALLY.  (A)  PRIOR  TO
CONDUCTING A PHOTO OR LIVE LINEUP OR SHOWUP, THE INVESTIGATING PERSONNEL
SHALL  OBTAIN  AND  RECORD  AS COMPLETE A DESCRIPTION AS POSSIBLE OF THE
PERSON DESCRIBED BY THE  EYEWITNESS,  IN  THE  EYEWITNESS'S  OWN  WORDS,
INCLUDING  THE CONDITIONS UNDER WHICH THE EYEWITNESS OBSERVED THE PERSON
INCLUDING LOCATION,  TIME,  DISTANCE,  OBSTRUCTIONS,  LIGHTING,  WEATHER
CONDITIONS, AND OTHER IMPAIRMENTS, INCLUDING BUT NOT LIMITED TO ALCOHOL,
DRUGS, STRESS, AND VISUAL/AUDITORY DISABILITIES. THE EYEWITNESS SHALL BE
ASKED  AND THE RESPONSE RECORDED ABOUT HIS OR HER VISUAL ACUITY, WHETHER
HE OR SHE HAS EVER BEEN PRESCRIBED  EYEGLASSES  OR  CONTACT  LENSES  AND
WHETHER  HE  OR  SHE  WAS  WEARING  THEM AT THE TIME OF THE OFFENSE. THE
ADMINISTRATOR SHALL NOTE WHETHER THE EYEWITNESS WAS WEARING  GLASSES  OR
CONTACT LENSES AT THE TIME OF THE IDENTIFICATION PROCEDURE.
  (B)  UNLESS  IMPRACTICABLE,  A  BLIND  OR  BLINDED ADMINISTRATOR SHALL
CONDUCT THE LIVE OR PHOTO LINEUP. WHEN IT IS IMPRACTICABLE FOR  A  BLIND
ADMINISTRATOR  TO  CONDUCT SUCH EYEWITNESS IDENTIFICATION PROCEDURE, THE
INVESTIGATOR SHALL STATE IN WRITING THE REASON THEREFOR.
  (C) PRIOR TO ANY LIVE LINEUP, PHOTO LINEUP OR SHOWUP,  THE  EYEWITNESS
SHALL  BE  INSTRUCTED,  WITHOUT  OTHER  EYEWITNESSES PRESENT, IN SUM AND
SUBSTANCE, THAT:
  (I) THE PERPETRATOR MAY OR MAY NOT BE AMONG THE PERSONS IN  THE  IDEN-
TIFICATION  PROCEDURE OR, IN THE CASE OF A SHOWUP, MAY OR MAY NOT BE THE
PERSON WHO IS PRESENTED TO THE EYEWITNESS;
  (II) WHERE APPLICABLE, THE ADMINISTRATOR DOES NOT KNOW WHO THE  PERPE-
TRATOR IS;
  (III)  THE EYEWITNESS SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
TION;
  (IV) THE INVESTIGATION WILL CONTINUE WHETHER OR NOT AN  IDENTIFICATION
IS MADE;
  (V)  THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK THE EYEWITNESS TO
STATE, IN HIS OR HER OWN WORDS, HOW CERTAIN HE OR SHE IS  OF  ANY  IDEN-
TIFICATION; AND
  (VI)  THE EYEWITNESS IS NOT TO DISCUSS THE IDENTIFICATION PROCEDURE OR
ITS RESULTS WITH OTHER  EYEWITNESSES  INVOLVED  IN  THE  CASE  OR  OTHER
PERSONS NOT INVOLVED IN THE MATTER.
  (D) IF THE EYEWITNESS MAKES AN IDENTIFICATION, THE ADMINISTRATOR SHALL
SEEK  AND DOCUMENT A CLEAR STATEMENT FROM THE EYEWITNESS, AT THE TIME OF
THE IDENTIFICATION AND IN THE EYEWITNESS' OWN WORDS, AS TO  THE  EYEWIT-
NESS' CONFIDENCE LEVEL THAT THE PERSON IDENTIFIED IN A GIVEN IDENTIFICA-
TION  PROCEDURE IS THE PERSON THE EYEWITNESS OBSERVED IN CONNECTION WITH
THE EVENTS HE OR SHE REPORTED TO INVESTIGATORS. THE EYEWITNESS SHALL NOT
BE PROVIDED ANY INFORMATION CONCERNING SUCH PERSON BEFORE  THE  ADMINIS-
TRATOR OBTAINS THE EYEWITNESS' CONFIDENCE STATEMENT.
  (E)  A  RECORD  OF  THE  IDENTIFICATION  PROCEDURE  SHALL BE MADE THAT
INCLUDES ALL  IDENTIFICATION  AND  NON-IDENTIFICATION  RESULTS  OBTAINED

A. 1683                             3

DURING THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES. IF THE
EYEWITNESS REFUSES TO SIGN, THAT OCCURRENCE SHALL BE DOCUMENTED.
  (F)  UNLESS IMPRACTICABLE, A VIDEO RECORD OF THE IDENTIFICATION PROCE-
DURE SHALL BE MADE THAT INCLUDES THE FOLLOWING INFORMATION:
  (I) ALL IDENTIFICATION AND NON-IDENTIFICATION RESULTS OBTAINED  DURING
THE IDENTIFICATION PROCEDURES, SIGNED BY THE EYEWITNESSES, INCLUDING THE
EYEWITNESSES' CONFIDENCE STATEMENTS;
  (II) THE NAMES OF ALL PERSONS PRESENT AT THE IDENTIFICATION PROCEDURE;
  (III) THE DATE, TIME AND LOCATION OF THE IDENTIFICATION PROCEDURE;
  (IV)  IN  A  PHOTO  OR LIVE LINEUP, ANY EYEWITNESS IDENTIFICATION OF A
FILLER, OR IDENTIFICATIONS OF FILLERS; AND
  (V) IN A PHOTO OR LIVE LINEUP, THE NAMES OF  THE  LINEUP  MEMBERS  AND
OTHER  RELEVANT  IDENTIFYING  INFORMATION, AND THE SOURCES OF ALL PHOTO-
GRAPHS OR PERSONS USED IN THE LINEUP.
  (G) IF A VIDEO RECORD OF THE IDENTIFICATION PROCEDURE  IS  IMPRACTICA-
BLE,  THE OFFICER CONDUCTING THE IDENTIFICATION PROCEDURE SHALL DOCUMENT
THE REASON THEREFOR, AND AN AUDIO RECORD OF THE IDENTIFICATION PROCEDURE
SHALL BE MADE WHICH INCLUDES THE ITEMS SPECIFIED  IN  PARAGRAPH  (F)  OF
THIS  SUBDIVISION.  THE AUDIO RECORD SHALL BE SUPPLEMENTED BY ALL OF THE
PHOTOGRAPHS USED IN A PHOTO LINEUP, INCLUDING PRESERVATION OF THE  ORDER
IN WHICH THE PHOTOS WERE VIEWED, OR BY A GROUP PHOTOGRAPH OR PHOTOGRAPHS
PRESERVING THE LIVE LINEUP THAT REPRESENTS THE GROUP FAIRLY AND CLEARLY,
OR  BY  A  PHOTOGRAPH  OF THE SHOWUP INCLUDING THE IMMEDIATE SURROUNDING
AREA OF THE LOCATION OF THE SHOWUP. IF BOTH A VIDEO AND AUDIO RECORD  OF
THE  IDENTIFICATION  PROCEDURE  ARE  IMPRACTICABLE,  THE  IDENTIFICATION
PROCEDURE SHALL BE PRESERVED FOLLOWING THE SAME  PRESERVATION  PROCEDURE
DELINEATED  IN  THIS  SECTION  WITH RESPECT TO AN AUDIO RECORD, WITH THE
EXCEPTION OF CREATING SUCH AUDIO RECORD.
  (H) RECORDINGS  OF  IDENTIFICATION  PROCEDURES  THAT  ARE  SECURED  IN
RELATION  TO  AN  INVESTIGATION  OR  PROSECUTION  OF AN OFFENSE SHALL BE
PRESERVED FOR THE PERIOD OF TIME  THAT  A    PERSON  CONVICTED  OF  THAT
OFFENSE COULD REMAIN IN CUSTODY FOR SUCH OFFENSE.
  3. ADDITIONAL PROVISIONS CONCERNING PHOTO LINEUPS AND LIVE LINEUPS.
  (A)  A  PHOTO  OR  LIVE  LINEUP  SHALL BE COMPOSED SO THAT THE FILLERS
GENERALLY RESEMBLE THE  EYEWITNESS'  DESCRIPTION  OF  THE  PERSON  WHILE
ENSURING  THAT  THE  SUSPECT DOES NOT UNDULY STAND OUT FROM THE FILLERS.
THE FILLERS SHALL RESEMBLE THE SUSPECT'S FACIAL FEATURES, WEIGHT,  BUILD
AND  SKIN  TONE  AND BE CLOSE TO HIS OR HER AGE, AND IF VISIBLE, INCLUDE
ANY UNIQUE OR UNUSUAL FEATURES SUCH AS SCARS OR TATTOOS.
  (B) IF THE EYEWITNESS HAS PREVIOUSLY VIEWED A  PHOTO  LINEUP  OR  LIVE
LINEUP IN CONNECTION WITH THE IDENTIFICATION OF ANOTHER PERSON SUSPECTED
OF  INVOLVEMENT  IN  THE OFFENSE, THE FILLERS IN THE LINEUP IN WHICH THE
INSTANT SUSPECT PARTICIPATES SHALL BE DIFFERENT FROM THE FILLERS USED IN
ANY PRIOR LINEUPS.
  (C) IF THERE ARE MULTIPLE EYEWITNESSES,  EACH  EYEWITNESS  SHALL  VIEW
PHOTO  OR  LIVE  LINEUPS  SEPARATELY,  THE  SUSPECT SHALL BE PLACED IN A
DIFFERENT POSITION IN THE LIVE  LINEUP  AND/OR  PHOTO  LINEUP  FOR  EACH
EYEWITNESS,  THE EYEWITNESSES SHALL NOT BE PERMITTED TO COMMUNICATE WITH
EACH OTHER UNTIL ALL IDENTIFICATION PROCEDURES HAVE BEEN COMPLETED,  AND
NO ADMINISTRATOR, WITNESS, OR OTHER PERSON MAY WRITE OR MARK ANY MATERI-
ALS THAT MAY BE USED IN SUBSEQUENT IDENTIFICATION PROCEDURES.
  (D)  NO WRITINGS OR INFORMATION CONCERNING THE INSTANT OR ANY PREVIOUS
ARREST, INDICTMENT OR CONVICTION OF THE SUSPECT SHALL BE VISIBLE OR MADE
KNOWN TO THE EYEWITNESS.
  (E) WHEN THERE ARE MULTIPLE SUSPECTS,  EACH  IDENTIFICATION  PROCEDURE
SHALL INCLUDE ONLY ONE SUSPECT.

A. 1683                             4

  (F)  NOTHING  SHALL  BE SAID TO THE EYEWITNESS REGARDING THE SUSPECT'S
POSITION OR ANY OTHER COMMENT THAT MIGHT OTHERWISE INFLUENCE HIS OR  HER
IDENTIFICATION.
  (G)  IN A PHOTO LINEUP, THE PHOTOGRAPH OF THE SUSPECT SHALL BE CONTEM-
PORARY AND SHALL RESEMBLE HIS OR HER  APPEARANCE  AT  THE  TIME  OF  THE
ALLEGED OFFENSE.
  (H)  IN  A  PHOTO  LINEUP, ONLY ONE PHOTOGRAPH OF THE SUSPECT SHALL BE
PRESENTED IN EACH IDENTIFICATION PROCEDURE AND  THERE  SHALL  BE  PHOTO-
GRAPHS OF AT LEAST FIVE FILLERS, IN ADDITION TO THE SUSPECT.
  (I) IN A PHOTO LINEUP, THERE SHALL BE NO CHARACTERISTICS OF THE PHOTO-
GRAPHS  THEMSELVES  OR  THE  BACKGROUND CONTEXT IN WHICH THEY ARE PLACED
WHICH SHALL MAKE ANY OF THE PHOTOGRAPHS UNDULY STAND OUT.
  (J) IN A LIVE LINEUP, THERE SHALL BE AT LEAST FOUR FILLERS,  IN  ADDI-
TION TO THE SUSPECT.
  (K)  IN  A  LIVE  LINEUP,  ANY  IDENTIFYING  ACTIONS,  SUCH AS SPEECH,
GESTURES OR MOVEMENTS, SHALL BE PERFORMED BY ALL LINEUP PARTICIPANTS.
  (L) IN A LIVE LINEUP, ALL LINEUP PARTICIPANTS MUST BE OUT OF  VIEW  OF
THE EYEWITNESS PRIOR TO THE IDENTIFICATION PROCEDURE.
  4. ADDITIONAL PROVISIONS CONCERNING SHOWUPS. (A) EFFORTS SHALL BE MADE
TO PERFORM A LIVE OR PHOTO LINEUP INSTEAD OF A SHOWUP. A SHOWUP MAY ONLY
BE PERFORMED WHEN EXIGENT CIRCUMSTANCES REQUIRE THE IMMEDIATE DISPLAY OF
A SUSPECT TO AN EYEWITNESS.
  (B)  ABSENT  EMERGENCY  CIRCUMSTANCES,  THE EYEWITNESS SHALL BE TRANS-
PORTED TO A NEUTRAL, NON-PREJUDICIAL LOCATION FOR THE  PURPOSES  OF  ANY
SHOWUP PROCEDURE.
  (C)  MEASURES  SHALL  BE  TAKEN  BY THE ADMINISTRATOR OF THE SHOWUP TO
REDUCE POTENTIALLY DAMAGING OR PREJUDICIAL INFERENCES THAT MAY BE  DRAWN
BY  THE EYEWITNESS, INCLUDING REFRAINING FROM SUGGESTING, THROUGH STATE-
MENTS OR NON-VERBAL CONDUCT, THAT THE PERSON TO BE OBSERVED IS A SUSPECT
OR MAY BE THE PERPETRATOR OF THE OFFENSE, REMOVING THE  PERSON  OBSERVED
FROM  THE  POLICE CAR, AND WHEN PRACTICABLE, REMOVING HANDCUFFS FROM THE
PERSON OBSERVED.
  (D) IF THERE ARE MULTIPLE EYEWITNESSES, ONLY ONE EYEWITNESS AT A  TIME
SHALL  BE  PRESENT  AT THE SHOWUP LOCATION AND PARTICIPATE IN THE SHOWUP
PROCEDURE. IF A POSITIVE IDENTIFICATION IS MADE, AND AN ARREST IS LEGAL-
LY JUSTIFIED, ADDITIONAL EYEWITNESSES SHALL BE SHOWN LIVE OR PHOTO LINE-
UPS.
  (E) IF THERE ARE MULTIPLE SUSPECTS, EACH SUCH PERSON  SHALL  BE  SEPA-
RATED AND SUBJECTED TO SEPARATE SHOWUP PROCEDURES.
  5. WITH RESPECT TO ANY PHOTO LINEUP, LIVE LINEUP OR SHOWUP:
  (A)  IF  LAW  ENFORCEMENT  OFFICIALS  OR  PROSECUTING  AGENCIES DO NOT
SUBSTANTIALLY COMPLY WITH THE PROVISIONS  OF  THIS  SECTION,  THE  TRIAL
COURT SHALL, ON MOTION OF THE DEFENDANT, CONDUCT A HEARING AS TO WHETHER
AN  IDENTIFICATION  BY  THE  WITNESS  OF  THE  DEFENDANT AT THE CRIMINAL
PROCEEDING WOULD BE NEVERTHELESS SUFFICIENTLY RELIABLE;
  (B) EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
SECTION SHALL BE CONSIDERED BY  TRIAL  COURTS  IN  ADJUDICATING  MOTIONS
PURSUANT TO SECTION 710.60 OF THIS CHAPTER;
  (C) EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF THIS
SECTION  SHALL BE ADMISSIBLE IN SUPPORT OF CLAIMS OF EYEWITNESS MISIDEN-
TIFICATION;
  (D) WHEN EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF
THIS SECTION HAS BEEN PRESENTED AT TRIAL, THE TRIAL COURT SHALL INSTRUCT
THE JURY THAT THE PROVISIONS WERE DESIGNED TO REDUCE THE RISK  OF  MISI-
DENTIFICATION  AND  THAT IT MAY CONSIDER CREDIBLE EVIDENCE OF NONCOMPLI-
ANCE WHEN ASSESSING THE RELIABILITY OF EYEWITNESS IDENTIFICATIONS; AND

A. 1683                             5

  (E) WHEN EVIDENCE OF A FAILURE TO COMPLY WITH ANY OF THE PROVISIONS OF
THIS SECTION, OR OF ANY OTHER UNNECESSARILY  SUGGESTIVE  PROCEDURE,  HAS
UNDERMINED  THE  COURT'S CONFIDENCE IN THE RELIABILITY OF THE EYEWITNESS
IDENTIFICATION, THE COURT MAY INSTRUCT THE JURY THAT IT MUST EXAMINE THE
IDENTIFICATION EVIDENCE WITH THE GREATEST OF CAUTION.
  S 2.  The family court act is amended by adding a new section 303.4 to
read as follows:
  S  303.4. CERTAIN IDENTIFICATION PROCEDURES. 1. WHENEVER AN EYEWITNESS
IDENTIFICATION PROCEDURE IS CONDUCTED WITH RESPECT  TO  A  SUSPECT  WHO,
WHILE  LESS  THAN  SIXTEEN YEARS OF AGE, IS ALLEGED TO HAVE COMMITTED AN
ACT THAT WOULD  CONSTITUTE  A  CRIME  IF  COMMITTED  BY  AN  ADULT,  THE
PROVISIONS OF SECTION 60.78 OF THE CRIMINAL PROCEDURE LAW SHALL APPLY.
  2.  FOR PURPOSES OF THIS SECTION AND SUCH APPLICATION OF SECTION 60.78
OF THE CRIMINAL PROCEDURE LAW:
  (A) "SUSPECT" MEANS A PERSON BELIEVED  BY  LAW  ENFORCEMENT  TO  BE  A
POSSIBLE  PERPETRATOR OF AN ACT THAT WOULD CONSTITUTE A CRIME IF COMMIT-
TED BY AN ADULT OR A PERSON OF INTEREST WITH RESPECT TO  ANY  SUCH  ACT;
AND
  (B)  "IDENTIFICATION  PROCEDURE"  MEANS A LIVE LINEUP, PHOTO LINEUP OR
SHOWUP.
  S 3.  This act shall take effect on the one    hundred  eightieth  day
after it shall have become a law.