S. 5875--A 2
GATION IN A DETENTION FACILITY AS DEFINED IN PARAGRAPH (A) OF THIS
SUBDIVISION. HOWEVER, WHERE THE PEOPLE OFFER INTO EVIDENCE A CONFESSION,
ADMISSION OR OTHER STATEMENT MADE BY A PERSON IN CUSTODY WITH RESPECT TO
HIS OR HER PARTICIPATION OR LACK OF PARTICIPATION IN AN OFFENSE SPECI-
FIED IN PARAGRAPH (A) OF THIS SUBDIVISION, THAT HAS NOT BEEN VIDEO
RECORDED, THE COURT SHALL CONSIDER THE FAILURE TO RECORD AS A FACTOR,
BUT NOT AS THE SOLE FACTOR, IN ACCORDANCE WITH PARAGRAPH (C) OF THIS
SUBDIVISION IN DETERMINING WHETHER SUCH CONFESSION, ADMISSION OR OTHER
STATEMENT SHALL BE ADMISSIBLE.
(C) NOTWITHSTANDING THE REQUIREMENT OF PARAGRAPH (A) OF THIS SUBDIVI-
SION, UPON A SHOWING OF GOOD CAUSE BY THE PROSECUTOR, THE CUSTODIAL
INTERROGATION NEED NOT BE RECORDED. GOOD CAUSE SHALL INCLUDE, BUT NOT BE
LIMITED TO:
(I) IF ELECTRONIC RECORDING EQUIPMENT MALFUNCTIONS.
(II) IF ELECTRONIC RECORDING EQUIPMENT IS NOT AVAILABLE BECAUSE IT WAS
OTHERWISE BEING USED.
(III) IF STATEMENTS ARE MADE IN RESPONSE TO QUESTIONS THAT ARE
ROUTINELY ASKED DURING ARREST PROCESSING.
(IV) IF THE STATEMENT IS SPONTANEOUSLY MADE BY THE SUSPECT AND NOT IN
RESPONSE TO POLICE QUESTIONING.
(V) IF THE STATEMENT IS MADE DURING AN INTERROGATION THAT IS CONDUCTED
WHEN THE INTERVIEWER IS UNAWARE THAT A QUALIFYING OFFENSE HAS OCCURRED.
(VI) IF THE STATEMENT IS MADE AT A LOCATION OTHER THAN THE "INTERVIEW
ROOM" BECAUSE THE SUSPECT CANNOT BE BROUGHT TO SUCH ROOM, E.G., THE
SUSPECT IS IN A HOSPITAL OR THE SUSPECT IS OUT OF STATE AND THAT STATE
IS NOT GOVERNED BY A LAW REQUIRING THE RECORDATION OF AN INTERROGATION.
(VII) IF THE STATEMENT IS MADE AFTER A SUSPECT HAS REFUSED TO PARTIC-
IPATE IN THE INTERROGATION IF IT IS RECORDED, AND APPROPRIATE EFFORT TO
DOCUMENT SUCH REFUSAL IS MADE.
(VIII) IF SUCH STATEMENT IS NOT RECORDED AS A RESULT OF AN INADVERTENT
ERROR OR OVERSIGHT, NOT THE RESULT OF ANY INTENTIONAL CONDUCT BY LAW
ENFORCEMENT PERSONNEL.
(IX) IF IT IS LAW ENFORCEMENT'S REASONABLE BELIEF THAT SUCH RECORDING
WOULD JEOPARDIZE THE SAFETY OF ANY PERSON OR REVEAL THE IDENTITY OF A
CONFIDENTIAL INFORMANT.
(X) IF SUCH STATEMENT IS MADE AT A LOCATION NOT EQUIPPED WITH A VIDEO
RECORDING DEVICE AND THE REASON FOR USING THAT LOCATION IS NOT TO
SUBVERT THE INTENT OF THE LAW. FOR PURPOSES OF THIS SECTION, THE TERM
"LOCATION" SHALL INCLUDE THOSE LOCATIONS SPECIFIED IN PARAGRAPH (B) OF
SUBDIVISION FOUR OF SECTION 305.2 OF THE FAMILY COURT ACT.
(D) IN THE EVENT THE COURT FINDS THAT THE PEOPLE HAVE NOT SHOWN GOOD
CAUSE FOR THE NON-RECORDING OF THE CONFESSION, ADMISSION, OR OTHER
STATEMENT, BUT DETERMINES THAT A NON-RECORDED CONFESSION, ADMISSION OR
OTHER STATEMENT IS NEVERTHELESS ADMISSIBLE BECAUSE IT WAS VOLUNTARILY
MADE THEN, UPON REQUEST OF THE DEFENDANT, THE COURT MUST INSTRUCT THE
JURY THAT THE PEOPLE'S FAILURE TO RECORD THE DEFENDANT'S CONFESSION,
ADMISSION OR OTHER STATEMENT AS REQUIRED BY THIS SECTION MAY BE WEIGHED
AS A FACTOR, BUT NOT AS THE SOLE FACTOR, IN DETERMINING WHETHER SUCH
CONFESSION, ADMISSION OR OTHER STATEMENT WAS VOLUNTARILY MADE, OR WAS
MADE AT ALL.
(E) VIDEO RECORDING AS REQUIRED BY THIS SECTION SHALL BE CONDUCTED IN
ACCORDANCE WITH STANDARDS ESTABLISHED BY RULE OF THE DIVISION OF CRIMI-
NAL JUSTICE SERVICES.
S 2. Subdivision 3 of section 344.2 of the family court act is renum-
bered subdivision 4 and a new subdivision 3 is added to read as follows:
S. 5875--A 3
3. 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 OF THE RIGHTS OF THE INDIVIDUAL BEING
QUESTIONED, AND THE WAIVER OF ANY RIGHTS BY THE INDIVIDUAL, SHALL BE
RECORDED AND GOVERNED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPHS
(A), (B), (C), (D) AND (E) OF SUBDIVISION THREE OF SECTION 60.45 OF THE
CRIMINAL PROCEDURE LAW.
S 3. Section 60.25 of the criminal procedure law, subparagraph (ii) of
paragraph (a) of subdivision 1 as amended by chapter 479 of the laws of
1977, is amended to read as follows:
S 60.25 Rules of evidence; identification by means of previous recogni-
tion, in absence of present identification.
1. In any criminal proceeding in which the defendant's commission of
an offense is in issue, testimony as provided in subdivision two may be
given by a witness when:
(a) Such witness testifies that:
(i) 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
(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 A BLIND OR BLINDED PROCEDURE AS
DEFINED IN PARAGRAPH (C) OF THIS SUBDIVISION, 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 or incriminating occasion; and
(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, A "BLIND OR BLINDED 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, AT THE TIME THE IDENTIFICATION IS MADE, THE PUBLIC
SERVANT ADMINISTERING SUCH PROCEDURE: (I) DOES NOT KNOW WHICH PERSON IN
THE ARRAY IS THE SUSPECT, OR (II) DOES NOT KNOW WHERE THE SUSPECT IS IN
THE ARRAY VIEWED BY THE WITNESS. THE FAILURE OF A PUBLIC SERVANT TO
FOLLOW SUCH A PROCEDURE SHALL BE ASSESSED SOLELY FOR PURPOSES OF THIS
ARTICLE AND SHALL RESULT IN THE PRECLUSION OF TESTIMONY REGARDING THE
IDENTIFICATION PROCEDURE AS EVIDENCE IN CHIEF, BUT SHALL NOT CONSTITUTE
A LEGAL BASIS TO SUPPRESS EVIDENCE MADE PURSUANT TO SUBDIVISION SIX OF
SECTION 710.20 OF THIS CHAPTER. THIS ARTICLE NEITHER LIMITS NOR EXPANDS
SUBDIVISION SIX OF SECTION 710.20 OF THIS CHAPTER.
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
S. 5875--A 4
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 4. 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 WHERE THE OBSERVATION IS MADE PURSUANT
TO A BLIND OR BLINDED PROCEDURE, AS DEFINED IN THE CLOSING PARAGRAPH OF
SUBDIVISION ONE OF SECTION 60.25 OF THIS ARTICLE, A PICTORIAL, PHOTO-
GRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF THE
DEFENDANT, under circumstances consistent with such rights as an accused
person may derive under the constitution of this state or of the United
States, and then also recognized him OR HER OR THE PICTORIAL, PHOTO-
GRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF HIM OR HER
as the same person whom he OR SHE had observed on the first or incrimi-
nating occasion, may, in addition to making an identification of the
defendant at the criminal proceeding on the basis of present recol-
lection as the person whom he OR SHE observed on the first or incrimi-
nating occasion, also describe his OR HER previous recognition of the
defendant and testify that the person whom he OR SHE observed OR WHOSE
PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPROD-
UCTION 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 PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR
VIDEO RECORDED REPRODUCTION constitutes evidence in chief.
S 5. 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
OF A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED
REPRODUCTION OF THE DEFENDANT by the prospective witness. A CLAIM THAT
THE PREVIOUS IDENTIFICATION OF THE DEFENDANT OR OF A PICTORIAL, PHOTO-
GRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF THE
DEFENDANT BY A PROSPECTIVE WITNESS DID NOT COMPLY WITH PARAGRAPH (C) OF
SUBDIVISION ONE OF SECTION 60.25 OF THIS CHAPTER OR WITH THE PROTOCOL
PROMULGATED IN ACCORDANCE WITH SUBDIVISION TWENTY OF SECTION EIGHT
HUNDRED THIRTY-SEVEN OF THE EXECUTIVE LAW SHALL NOT CONSTITUTE A LEGAL
BASIS TO SUPPRESS EVIDENCE PURSUANT TO THIS SUBDIVISION. A CLAIM THAT A
PUBLIC SERVANT FAILED TO COMPLY WITH PARAGRAPH (C) OF SUBDIVISION ONE OF
SECTION 60.25 OF THIS CHAPTER OR OF SUBDIVISION TWENTY OF SECTION EIGHT
HUNDRED THIRTY-SEVEN OF THE EXECUTIVE LAW SHALL NEITHER EXPAND NOR LIMIT
THE RIGHTS AN ACCUSED PERSON MAY DERIVE UNDER THE CONSTITUTION OF THIS
STATE OR OF THE UNITED STATES.
S. 5875--A 5
S 6. 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, 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 occasion 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 7. 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:
(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 A BLIND OR BLINDED PROCEDURE AS
DEFINED HEREIN, 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 occasion;
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.
(C) FOR PURPOSES OF THIS SECTION, A "BLIND OR BLINDED 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, AT THE TIME THE IDENTIFICATION IS MADE, THE PUBLIC
SERVANT ADMINISTERING SUCH PROCEDURE: (I) DOES NOT KNOW WHICH PERSON IN
THE ARRAY IS THE SUSPECT, OR (II) DOES NOT KNOW WHERE THE SUSPECT IS IN
THE ARRAY VIEWED BY THE WITNESS. THE FAILURE OF A PUBLIC SERVANT TO
FOLLOW SUCH A PROCEDURE SHALL BE ASSESSED SOLELY FOR PURPOSES OF THIS
ARTICLE AND SHALL RESULT IN THE PRECLUSION OF TESTIMONY REGARDING THE
IDENTIFICATION PROCEDURE AS EVIDENCE IN CHIEF, BUT SHALL NOT CONSTITUTE
A LEGAL BASIS TO SUPPRESS EVIDENCE MADE PURSUANT TO SUBDIVISION SIX OF
SECTION 710.20 OF THE CRIMINAL PROCEDURE LAW. THIS ARTICLE NEITHER
S. 5875--A 6
LIMITS NOT EXPANDS SUBDIVISION SIX OF SECTION 710.20 OF THE CRIMINAL
PROCEDURE LAW.
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 8. 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, WHERE THE OBSERVATION IS
MADE PURSUANT TO A BLIND OR BLINDED PROCEDURE, A PICTORIAL, PHOTOGRAPH-
IC, 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
then also recognized him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELEC-
TRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF HIM OR HER as the same
person whom he OR SHE had observed on the first or incriminating occa-
sion, may, in addition to making an identification of the respondent at
the delinquency 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,
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 incriminating occasion. Such testimony AND
SUCH PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED
REPRODUCTION constitutes evidence in chief. FOR PURPOSES OF THIS
SECTION, A "BLIND OR BLINDED PROCEDURE" SHALL BE AS DEFINED IN PARAGRAPH
(C) OF SUBDIVISION ONE OF SECTION 343.3 OF THIS PART.
S 9. Section 837 of the executive law is amended by adding a new
subdivision 20 to read as follows:
20. PROMULGATE A STANDARDIZED AND DETAILED WRITTEN PROTOCOL THAT IS
GROUNDED IN EVIDENCE-BASED PRINCIPLES FOR THE ADMINISTRATION OF PHOTO-
GRAPHIC ARRAY AND LIVE LINEUP IDENTIFICATION PROCEDURES FOR POLICE AGEN-
CIES AND STANDARDIZED FORMS FOR USE BY SUCH AGENCIES IN THE REPORTING
AND RECORDING OF SUCH IDENTIFICATION PROCEDURE. THE PROTOCOL SHALL
ADDRESS THE FOLLOWING TOPICS:
(A) THE SELECTION OF PHOTOGRAPHIC ARRAY AND LIVE LINEUP FILLER PHOTO-
GRAPHS OR PARTICIPANTS;
(B) INSTRUCTIONS GIVEN TO A WITNESS BEFORE CONDUCTING A PHOTOGRAPHIC
ARRAY OR LIVE LINEUP IDENTIFICATION PROCEDURE;
(C) THE DOCUMENTATION AND PRESERVATION OF RESULTS OF A PHOTOGRAPHIC
ARRAY OR LIVE LINEUP IDENTIFICATION PROCEDURE;
S. 5875--A 7
(D) PROCEDURES FOR ELICITING AND DOCUMENTING THE WITNESS'S CONFIDENCE
IN HIS OR HER IDENTIFICATION FOLLOWING A PHOTOGRAPHIC ARRAY OR LIVE
LINEUP IDENTIFICATION PROCEDURE, IN THE EVENT THAT AN IDENTIFICATION IS
MADE; AND
(E) PROCEDURES FOR ADMINISTERING A PHOTOGRAPHIC ARRAY OR LIVE LINEUP
IDENTIFICATION PROCEDURE IN A MANNER DESIGNED TO PREVENT OPPORTUNITIES
TO INFLUENCE THE WITNESS.
S 10. Subdivision 4 of section 840 of the executive law is amended by
adding a new paragraph (c) to read as follows:
(C) DISSEMINATE THE WRITTEN POLICIES AND PROCEDURES PROMULGATED IN
ACCORDANCE WITH SUBDIVISION TWENTY OF SECTION EIGHT HUNDRED THIRTY-SEVEN
OF THIS ARTICLE TO ALL POLICE DEPARTMENTS IN THIS STATE AND IMPLEMENT A
TRAINING PROGRAM FOR ALL CURRENT AND NEW POLICE OFFICERS REGARDING THE
POLICIES AND PROCEDURES ESTABLISHED PURSUANT TO SUCH SUBDIVISION.
S 11. This act shall take effect on the thirtieth day after it shall
have become a law; provided, however, sections one and two of this act
shall take effect June 1, 2017 and apply to confessions, admissions or
statements made on or after such effective date; provided, further,
sections three through ten of this act shall take effect November 1,
2015.