(iii) He OR SHE is unable at the proceeding to state, on the basis of
present recollection, whether or not the defendant is the person in
question; and
(b) It is established that the defendant is in fact the person whom
the witness observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION THE WITNESS OBSERVED
AND RECOGNIZED on the second occasion. Such fact may be established by
testimony of another person or persons to whom the witness promptly
declared his OR HER recognition on such occasion AND BY SUCH PICTORIAL,
PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION.
(C) FOR PURPOSES OF THIS SECTION, AN "IDENTIFICATION PROCEDURE" IS ONE
IN WHICH THE WITNESS IDENTIFIES A PERSON IN AN ARRAY OF PICTORIAL,
PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTIONS UNDER
CIRCUMSTANCES WHERE: (I) AT THE TIME THE IDENTIFICATION IS MADE, THE
PUBLIC SERVANT ADMINISTERING SUCH PROCEDURE DOES NOT KNOW WHICH PERSON
IN THE ARRAY IS THE ACCUSED PERSON OR, (II) IF, AT SUCH TIME, IT IS
IMPRACTICABLE FOR THE PUBLIC SERVANT NOT TO KNOW WHO THE ACCUSED PERSON
IS, THE PUBLIC SERVANT DOES NOT KNOW WHERE THE ACCUSED PERSON IS IN THE
ARRAY VIEWED BY THE WITNESS.
2. Under circumstances prescribed in subdivision one OF THIS SECTION,
such witness may testify at the criminal proceeding that the person whom
he OR SHE observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED AND
RECOGNIZED on the second occasion is the same person whom he OR SHE
observed on the first or incriminating occasion. Such testimony,
together with the evidence that the defendant is in fact the person whom
the witness observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED AND
RECOGNIZED on the second occasion, constitutes evidence in chief.
S 2. Section 60.30 of the criminal procedure law, as amended by chap-
ter 479 of the laws of 1977, is amended to read as follows:
S 60.30 Rules of evidence; identification by means of previous recogni-
tion, in addition to present identification.
In any criminal proceeding in which the defendant's commission of an
offense is in issue, a witness who testifies that (a) he OR SHE observed
the person claimed by the people to be the defendant either at the time
and place of the commission of the offense or upon some other occasion
relevant to the case, and (b) on the basis of present recollection, the
defendant is the person in question and (c) on a subsequent occasion he
OR SHE observed the defendant, OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC,
FILMED OR VIDEO RECORDED REPRODUCTION OF THE DEFENDANT, under circum-
stances consistent with such rights as an accused person may derive
under the constitution of this state or of the United States AND PURSU-
ANT TO AN IDENTIFICATION PROCEDURE SET FORTH IN PARAGRAPH (C) OF SUBDI-
VISION ONE OF SECTION 60.25 OF THIS ARTICLE, and then also recognized
him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO
RECORDED REPRODUCTION OF HIM OR HER as the same person whom he OR SHE
had observed on the first or incriminating occasion, may, in addition to
making an identification of the defendant at the criminal proceeding on
the basis of present recollection as the person whom he OR SHE observed
on the first or incriminating occasion, also describe his OR HER previ-
ous recognition of the defendant and testify that the person whom he OR
SHE observed OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR
VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED on such second occasion
is the same person whom he OR SHE had observed on the first or incrimi-
nating occasion. Such testimony AND SUCH PICTORIAL, PHOTOGRAPHIC, ELEC-
A. 6800--A 3
TRONIC, FILMED OR VIDEO RECORDED REPRODUCTION constitutes evidence in
chief.
S 3. Subdivision 6 of section 710.20 of the criminal procedure law, as
amended by chapter 8 of the laws of 1976 and as renumbered by chapter
481 of the laws of 1983, is amended to read as follows:
6. Consists of potential testimony regarding an observation of the
defendant either at the time or place of the commission of the offense
or upon some other occasion relevant to the case, which potential testi-
mony would not be admissible upon the prospective trial of such charge
owing to an improperly made previous identification of the defendant OR
A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPROD-
UCTION OF THE DEFENDANT by the prospective witness.
S 4. Subdivision 1 of section 710.30 of the criminal procedure law, as
separately amended by chapters 8 and 194 of the laws of 1976, is amended
to read as follows:
1. Whenever the people intend to offer at a trial (a) evidence of a
statement made by a defendant to a public servant, which statement if
involuntarily made would render the evidence thereof suppressible upon
motion pursuant to subdivision three of section 710.20 OF THIS ARTICLE,
or (b) testimony regarding an observation of the defendant either at the
time or place of the commission of the offense or upon some other occa-
sion relevant to the case, to be given by a witness who has previously
identified him OR HER OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED
OR VIDEO RECORDED REPRODUCTION OF HIM OR HER as such, they must serve
upon the defendant a notice of such intention, specifying the evidence
intended to be offered.
S 5. Section 840 of the executive law is amended by adding a new
subdivision 5 to read as follows:
5. (A) THE COUNCIL SHALL, IN ADDITION, IN CONSULTATION WITH SCIENTIFIC
EXPERTS IN EYEWITNESS MEMORY RESEARCH AND THE CRIMINAL JUSTICE COMMUNI-
TY, DEVELOP AND, FOLLOWING A PERIOD OF PUBLIC COMMENT, MAINTAIN AND
DISSEMINATE TO ALL POLICE AND PROSECUTORIAL AGENCIES IN THE STATE A
MODEL POLICY FOR THE PERSONNEL OF SUCH AGENCIES INVOLVED IN CRIMINAL
INVESTIGATIONS THAT EMBODIES CURRENT BEST PRACTICES FOR CONDUCTING
PHOTOGRAPHIC AND LIVE LINEUPS. THESE BEST PRACTICES MUST BE CONSISTENT
WITH RECOMMENDATIONS INCORPORATED IN "BEST PRACTICES FOR THE ADMINIS-
TRATION OF IDENTIFICATION PROCEDURES" PUBLISHED IN TWO THOUSAND ELEVEN
BY THE JUSTICE TASK FORCE ESTABLISHED BY THE CHIEF JUDGE OF THE STATE IN
MAY, TWO THOUSAND NINE, AND MUST INCLUDE BUT NEED NOT BE LIMITED TO
THOSE PRACTICES DESCRIBED THEREIN AS "I. INSTRUCTIONS TO WITNESS," "II.
WITNESS CONFIDENCE STATEMENTS," "III. DOCUMENTATION OF IDENTIFICATION
PROCEDURES," AND "V. LIVE LINEUPS." FOR PURPOSES OF THIS SUBDIVISION,
THE "CRIMINAL JUSTICE COMMUNITY" SHALL INCLUDE POLICE AND PROSECUTORIAL
AGENCIES OF THE STATE AND REPRESENTATIVES OF THE CRIMINAL DEFENSE BAR.
(B) EACH POLICE AND PROSECUTORIAL AGENCY IN THE STATE SHALL ADOPT
WRITTEN POLICIES RELATING TO THE CONDUCT OF PHOTOGRAPHIC AND LIVE LINE-
UPS THAT CONFORM WITH THE MODEL POLICY PRESCRIBED BY PARAGRAPH (A) OF
THIS SUBDIVISION.
S 6. Section 343.3 of the family court act, as added by chapter 920
of the laws of 1982, is amended to read as follows:
S 343.3. Rules of evidence; identification by means of previous recog-
nition in absence of present identification. 1. In any juvenile delin-
quency proceeding in which the respondent's commission of a crime is in
issue, testimony as provided in subdivision two may be given by a
witness when:
(a) such witness testifies that:
A. 6800--A 4
(i) he OR SHE observed the person claimed by the presentment agency to
be the respondent either at the time and place of the commission of the
crime or upon some other occasion relevant to the case; and
(ii) on a subsequent occasion he OR SHE observed, under circumstances
consistent with such rights as an accused person may derive under the
constitution of this state or of the United States, a person OR, WHERE
THE OBSERVATION IS MADE PURSUANT TO AN IDENTIFICATION PROCEDURE AS
DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 60.25 OF THE
CRIMINAL PROCEDURE LAW, A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR
VIDEO RECORDED REPRODUCTION OF A PERSON whom he OR SHE recognized as the
same person whom he OR SHE had observed on the first incriminating occa-
sion; and
(iii) he OR SHE is unable at the proceeding to state, on the basis of
present recollection, whether or not the respondent is the person in
question; and
(b) it is established that the respondent is in fact the person whom
the witness observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION THE WITNESS OBSERVED
AND RECOGNIZED on the second occasion. Such fact may be established by
testimony of another person or persons to whom the witness promptly
declared his OR HER recognition on such occasion AND BY SUCH PICTORIAL,
PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION.
2. Under circumstances prescribed in subdivision one, such witness may
testify at the proceeding that the person whom he OR SHE observed and
recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO
RECORDED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on the second
occasion is the same person whom he OR SHE observed on the first or
incriminating occasion. Such testimony, together with the evidence that
the respondent is in fact the person whom the witness observed and
recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO
RECORDED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on the second
occasion, constitutes evidence in chief.
S 7. Section 343.4 of the family court act, as added by chapter 920 of
the laws of 1982, is amended to read as follows:
S 343.4. Rules of evidence; identification by means of previous recog-
nition, in addition to present identification. In any juvenile delin-
quency proceeding in which the respondent's commission of a crime is in
issue, a witness who testifies that: (a) he OR SHE observed the person
claimed by the presentment agency to be the respondent either at the
time and place of the commission of the crime or upon some other occa-
sion relevant to the case, and (b) on the basis of present recollection,
the respondent is the person in question, and (c) on a subsequent occa-
sion he OR SHE observed the respondent, OR A PICTORIAL, PHOTOGRAPHIC,
ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF THE RESPONDENT
under circumstances consistent with such rights as an accused person may
derive under the constitution of this state or of the United States AND
PURSUANT TO AN IDENTIFICATION PROCEDURE SET FORTH IN PARAGRAPH (C) OF
SUBDIVISION ONE OF SECTION 60.25 OF THE CRIMINAL PROCEDURE LAW, and then
also recognized him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC,
FILMED OR VIDEO RECORDED REPRODUCTION OF HIM OR HER as the same person
whom he OR SHE had observed on the first or incriminating occasion, may,
in addition to making an identification of the respondent at the delin-
quency proceeding on the basis of present recollection as the person
whom he OR SHE observed on the first or incriminating occasion, also
describe his OR HER previous recognition of the respondent and testify
that the person whom he OR SHE observed OR WHOSE PICTORIAL, PHOTOGRAPH-
A. 6800--A 5
IC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED
on such second occasion is the same person whom he OR SHE had observed
on the first or incriminating occasion. Such testimony AND SUCH PICTORI-
AL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION
constitutes evidence in chief.
S 8. Section 60.45 of the criminal procedure law is amended by adding
a new subdivision 3 to read as follows:
3. (A) WHERE A DEFENDANT IS SUBJECT TO CUSTODIAL INTERROGATION BY A
PUBLIC SERVANT AT A DETENTION FACILITY, THE ENTIRE CUSTODIAL INTERRO-
GATION, INCLUDING THE GIVING OF ANY REQUIRED ADVICE TO THE DEFENDANT AS
TO HIS OR HER RIGHTS AND DEFENDANT'S WAIVER OF ANY RIGHTS SHALL BE VIDEO
RECORDED, BY VIDEOTAPE OR OTHER APPROPRIATE VIDEO RECORDING DEVICE IF
THE CUSTODIAL INTERROGATION INVOLVES: A CLASS A-1 FELONY EXCEPT ONE
DEFINED IN ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW; OR A FELONY
OFFENSE DEFINED IN ARTICLE ONE HUNDRED TWENTY-FIVE OR ARTICLE ONE
HUNDRED THIRTY OF SUCH LAW THAT IS DEFINED AS A CLASS B VIOLENT FELONY
OFFENSE IN SECTION 70.02 OF SUCH LAW. FOR PURPOSES OF THIS SUBDIVISION,
THE TERM "PUBLIC SERVANT" SHALL HAVE THE MEANING PROVIDED IN SECTION
10.00 OF THE PENAL LAW AND A "DETENTION FACILITY" SHALL MEAN A POLICE
STATION, CORRECTIONAL FACILITY, HOLDING FACILITY FOR PRISONERS,
PROSECUTOR'S OFFICE OR OTHER FACILITY WHERE PERSONS ARE HELD IN
DETENTION IN CONNECTION WITH CRIMINAL CHARGES THAT HAVE BEEN OR MAY BE
FILED AGAINST THEM.
(B) WHERE THE PEOPLE OFFER INTO EVIDENCE A CONFESSION, ADMISSION OR
OTHER STATEMENT MADE BY A DEFENDANT IN CUSTODY WITH RESPECT TO HIS OR
HER PARTICIPATION OR LACK OF PARTICIPATION IN AN OFFENSE SPECIFIED IN
PARAGRAPH (A) OF THIS SUBDIVISION THAT HAS NOT BEEN VIDEO RECORDED AS
REQUIRED BY SUCH PARAGRAPH, THE COURT SHALL CONSIDER THE FAILURE TO
COMPLY WITH THIS REQUIREMENT AS A FACTOR IN DETERMINING WHETHER SUCH
CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE ADMISSIBLE UNLESS THE
PEOPLE SHOW GOOD CAUSE FOR SUCH FAILURE, WHICH SHALL INCLUDE, BUT NOT BE
LIMITED TO: (I) MALFUNCTION OF THE VIDEO RECORDING EQUIPMENT OR OTHER
INADVERTENT ERROR THAT PREVENTS OR INTERRUPTS THE VIDEO RECORDING, (II)
UNAVAILABILITY OF SUCH EQUIPMENT BECAUSE IT WAS OTHERWISE BEING USED,
(III) THE DEFENDANT'S REFUSAL TO MAKE A CONFESSION, ADMISSION OR OTHER
STATEMENT IF IT IS VIDEO RECORDED OR HIS OR HER REQUEST THAT IT NOT BE
VIDEO RECORDED (AND SUCH REFUSAL OR REQUEST IS IN WRITING SIGNED BY THE
DEFENDANT, UNLESS THE DEFENDANT DECLINES TO DO SO), (IV) THE PEOPLE'S
REASONABLE BELIEF THAT SUCH VIDEO RECORDING WOULD JEOPARDIZE THE SAFETY
OF ANY PERSON OR REVEAL THE IDENTITY OF A CONFIDENTIAL INFORMANT, OR (V)
THE PUBLIC SERVANT OR SERVANTS HAVING CUSTODY OF THE DEFENDANT REASON-
ABLY BELIEVED, AT THE TIME THE DEFENDANT MADE THE CONFESSION, ADMISSION
OR OTHER STATEMENT, THAT SUCH CONFESSION, ADMISSION OR OTHER STATEMENT
WOULD NOT RELATE TO DEFENDANT'S PARTICIPATION OR LACK OF PARTICIPATION
IN AN OFFENSE SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION.
(C) VIDEO RECORDING AS REQUIRED BY THIS SUBDIVISION SHALL BE CONDUCTED
IN ACCORDANCE WITH STANDARDS ESTABLISHED BY RULE OF THE DIVISION OF
CRIMINAL JUSTICE SERVICES.
S 9. Section 710.70 of the criminal procedure law is amended by adding
a new subdivision 4 to read as follows:
4. IN THE EVENT THAT THE COURT DETERMINES THAT A CONFESSION, ADMISSION
OR OTHER STATEMENT SHALL BE ADMISSIBLE, NOTWITHSTANDING THE PEOPLE'S
FAILURE TO SHOW GOOD CAUSE PURSUANT TO SUBDIVISION THREE OF SECTION
60.45 OF THIS CHAPTER FOR FAILING TO VIDEO RECORD IT, THE COURT, IN ITS
CHARGE TO THE JURY AND UPON REQUEST OF THE DEFENDANT, MUST INSTRUCT THE
JURY THAT THE PEOPLE'S FAILURE TO RECORD THE DEFENDANT'S CONFESSION,
A. 6800--A 6
ADMISSION OR OTHER STATEMENT AS REQUIRED BY SECTION 60.45 OF THIS CHAP-
TER SHOULD BE WEIGHED AS A FACTOR IN DETERMINING WHETHER SUCH
CONFESSION, ADMISSION OTHER STATEMENT WAS VOLUNTARILY MADE OR WAS MADE
AT ALL.
S 10. Subdivision 3 of section 344.2 of the family court act is
renumbered subdivision 4 and a new subdivision 3 is added to read as
follows:
3. (A) WHERE A RESPONDENT IS SUBJECT TO CUSTODIAL INTERROGATION BY A
PUBLIC SERVANT AT A FACILITY SPECIFIED IN SUBDIVISION FOUR OF SECTION
305.2 OF THIS ARTICLE, THE ENTIRE CUSTODIAL INTERROGATION, INCLUDING THE
GIVING OF ANY REQUIRED ADVICE TO THE RESPONDENT AS TO HIS OR HER RIGHTS
AND RESPONDENT'S WAIVER OF ANY RIGHTS SHALL BE VIDEO RECORDED, BY VIDE-
OTAPE OR OTHER APPROPRIATE VIDEO RECORDING DEVICE IF THE CUSTODIAL
INTERROGATION INVOLVES: A CLASS A-1 FELONY EXCEPT ONE DEFINED IN ARTI-
CLE TWO HUNDRED TWENTY OF THE PENAL LAW; OR A FELONY OFFENSE DEFINED IN
ARTICLE ONE HUNDRED TWENTY-FIVE OR ARTICLE ONE HUNDRED THIRTY OF SUCH
LAW THAT IS DEFINED AS A CLASS B VIOLENT FELONY OFFENSE IN SECTION 70.02
OF SUCH LAW. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "PUBLIC SERVANT"
SHALL HAVE THE MEANING PROVIDED IN SECTION 10.00 OF THE PENAL LAW.
(B) WHERE THE PRESENTMENT AGENCY OFFERS INTO EVIDENCE A CONFESSION,
ADMISSION OR OTHER STATEMENT MADE BY A RESPONDENT IN CUSTODY WITH
RESPECT TO HIS OR HER PARTICIPATION OR LACK OF PARTICIPATION IN AN
OFFENSE SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION THAT HAS NOT BEEN
VIDEO RECORDED AS REQUIRED BY SUCH PARAGRAPH, THE COURT SHALL CONSIDER
THE FAILURE TO COMPLY WITH THIS REQUIREMENT AS A FACTOR IN DETERMINING
WHETHER SUCH CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE ADMISSI-
BLE UNLESS THE PRESENTMENT AGENCY SHOWS GOOD CAUSE FOR SUCH FAILURE,
WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO: (I) MALFUNCTION OF THE VIDEO
RECORDING EQUIPMENT OR OTHER INADVERTENT ERROR THAT PREVENTS OR INTER-
RUPTS THE VIDEO RECORDING, (II) UNAVAILABILITY OF SUCH EQUIPMENT BECAUSE
IT WAS OTHERWISE BEING USED, (III) RESPONDENT'S REFUSAL TO MAKE A
CONFESSION, ADMISSION OR OTHER STATEMENT IF IT IS VIDEO RECORDED OR HIS
OR HER REQUEST THAT IT NOT BE VIDEO RECORDED (AND SUCH REFUSAL OR
REQUEST IS IN WRITING SIGNED BY THE RESPONDENT, UNLESS THE RESPONDENT
DECLINES TO DO SO), (IV) THE PRESENTMENT AGENCY'S REASONABLE BELIEF THAT
SUCH VIDEO RECORDING WOULD JEOPARDIZE THE SAFETY OF ANY PERSON OR REVEAL
THE IDENTITY OF A CONFIDENTIAL INFORMANT, OR (V) THE PUBLIC SERVANT OR
SERVANTS HAVING CUSTODY OF THE RESPONDENT REASONABLY BELIEVED, AT THE
TIME THE RESPONDENT MADE THE CONFESSION, ADMISSION OR OTHER STATEMENT,
THAT SUCH CONFESSION, ADMISSION OR OTHER STATEMENT WOULD NOT RELATE TO
RESPONDENT'S PARTICIPATION OR LACK OF PARTICIPATION IN AN OFFENSE SPECI-
FIED IN PARAGRAPH (A) OF THIS SUBDIVISION.
(C) VIDEO RECORDING AS REQUIRED BY THIS SUBDIVISION SHALL BE CONDUCTED
IN ACCORDANCE WITH STANDARDS ESTABLISHED BY RULE OF THE DIVISION OF
CRIMINAL JUSTICE SERVICES.
S 11. This act shall take effect immediately; provided that the
provisions of sections eight, nine and ten of this act shall take effect
on the first of November in the year next succeeding the year in which
this act shall have become a law; provided, further, sections eight,
nine and ten of this act shall apply only to confessions, admissions or
other statements made on or after the effective date of such sections.