NY State Assembly Bill 2015-A8157B

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Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 13, 2016	print number 8157b
May 13, 2016	amend and recommit to codes
Jan 06, 2016	referred to codes
Jun 11, 2015	print number 8157a
Jun 11, 2015	amend (t) and recommit to codes
Jun 10, 2015	referred to codes

Bill Amendments

Original

B (Active)

co-Sponsors

2015-A8157 - Details

Current Committee:: Assembly Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§60.45, 60.25, 60.30, 710.20 & 710.30, add §60.80, CP L; amd §§305.2, 344.2, 343.3 & 343.4, Fam Ct Act; amd §§837 & 840, Exec L
Versions Introduced in 2017-2018 Legislative Session:: A4239

2015-A8157 - Summary

Relates to enhancing criminal investigations and prosecutions in relation to the integrity of statements of those accused of crimes and the integrity of eyewitness identifications.

2015-A8157 - Bill Text download pdf

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

                                  8157

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              June 10, 2015
                               ___________

Introduced by M. of A. LENTOL -- read once and referred to the Committee
  on Codes

AN ACT to amend the criminal procedure law, the family court act and the
  executive  law,  in relation to improve the integrity of statements of
  those accused of crimes and the integrity  of  eyewitness  identifica-
  tions,  to  enhance  criminal  investigations  and prosecutions and to
  promote confidence in the criminal justice system of this state

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

  Section  1.  Section 60.45 of the criminal procedure law is amended by
adding a new subdivision 3 to read as follows:
  3. (A) WHERE A PERSON 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 OF THE RIGHTS OF THE
INDIVIDUAL BEING QUESTIONED, AND THE WAIVER OF ANY RIGHTS BY  THE  INDI-
VIDUAL,  SHALL  BE  RECORDED BY AN APPROPRIATE VIDEO RECORDING DEVICE IF
THE INTERROGATION INVOLVES A CLASS A-1 FELONY,  EXCEPT  ONE  DEFINED  IN
ARTICLE  TWO HUNDRED TWENTY OF THE PENAL LAW; FELONY OFFENSES DEFINED IN
SECTION 130.95 AND 130.96 OF THE PENAL LAW; OR A FELONY OFFENSE  DEFINED
IN  ARTICLE  ONE  HUNDRED  TWENTY-FIVE OR ONE HUNDRED THIRTY OF SUCH LAW
THAT IS DEFINED AS A CLASS B VIOLENT FELONY OFFENSE IN SECTION 70.02  OF
THE  PENAL  LAW.  FOR  PURPOSES  OF  THIS PARAGRAPH, THE TERM "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)  NO CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE SUBJECT TO A
MOTION TO SUPPRESS PURSUANT TO SUBDIVISION THREE OF  SECTION  710.20  OF
THIS CHAPTER BASED SOLELY UPON THE FAILURE TO VIDEO RECORD SUCH INTERRO-
GATION  IN  A  DETENTION  FACILITY  AS  DEFINED IN PARAGRAPH (A) OF THIS
SUBDIVISION. HOWEVER, WHERE THE PEOPLE OFFER INTO EVIDENCE A CONFESSION,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11558-01-5

A. 8157                             2

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:
  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

A. 8157                             3

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
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,

A. 8157                             4

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 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:

A. 8157                             5

  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
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

A. 8157                             6

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;
  (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

A. 8157                             7

  (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 THAT SUBDIVISION.
  S  11.  This  act  shall  take  effect immediately; 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.

co-Sponsors

2015-A8157A - Details

Current Committee:: Assembly Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§60.45, 60.25, 60.30, 710.20 & 710.30, add §60.80, CP L; amd §§305.2, 344.2, 343.3 & 343.4, Fam Ct Act; amd §§837 & 840, Exec L
Versions Introduced in 2017-2018 Legislative Session:: A4239

2015-A8157A - Summary

Relates to enhancing criminal investigations and prosecutions in relation to the integrity of statements of those accused of crimes and the integrity of eyewitness identifications.

2015-A8157A - Bill Text download pdf

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

                                 8157--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              June 10, 2015
                               ___________

Introduced  by  M.  of A. LENTOL, SEPULVEDA -- read once and referred to
  the Committee on Codes -- committee discharged, bill amended,  ordered
  reprinted as amended and recommitted to said committee

AN ACT to amend the criminal procedure law, the family court act and the
  executive  law,  in  relation to statements of those accused of crimes
  and eyewitness identifications, to enhance criminal investigations and
  prosecutions and to promote confidence in the criminal justice  system
  of this state

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

  Section 1. Section 60.45 of the criminal procedure law is  amended  by
adding a new subdivision 3 to read as follows:
  3.  (A)  WHERE  A  PERSON  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 OF THE RIGHTS OF THE
INDIVIDUAL  BEING  QUESTIONED, AND THE WAIVER OF ANY RIGHTS BY THE INDI-
VIDUAL, SHALL BE RECORDED BY AN APPROPRIATE VIDEO  RECORDING  DEVICE  IF
THE  INTERROGATION  INVOLVES  A  CLASS A-1 FELONY, EXCEPT ONE DEFINED IN
ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW; FELONY OFFENSES DEFINED  IN
SECTION  130.95 AND 130.96 OF THE PENAL LAW; OR A FELONY OFFENSE DEFINED
IN ARTICLE ONE HUNDRED TWENTY-FIVE OR ONE HUNDRED  THIRTY  OF  SUCH  LAW
THAT  IS DEFINED AS A CLASS B VIOLENT FELONY OFFENSE IN SECTION 70.02 OF
THE PENAL LAW. FOR PURPOSES  OF  THIS  PARAGRAPH,  THE  TERM  "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) NO CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE SUBJECT TO  A
MOTION  TO  SUPPRESS  PURSUANT TO SUBDIVISION THREE OF SECTION 710.20 OF
THIS CHAPTER BASED SOLELY UPON THE FAILURE TO VIDEO RECORD SUCH INTERRO-
GATION IN A DETENTION FACILITY AS  DEFINED  IN  PARAGRAPH  (A)  OF  THIS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11558-02-5

A. 8157--A                          2

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:
  3.  WHERE  A  RESPONDENT  IS  SUBJECT  TO CUSTODIAL INTERROGATION BY A
PUBLIC SERVANT AT A FACILITY SPECIFIED IN SUBDIVISION  FOUR  OF  SECTION

A. 8157--A                          3

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
observed  on  the  first  or  incriminating  occasion.   Such testimony,
together with the evidence that the defendant is in fact the person whom

A. 8157--A                          4

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.

A. 8157--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

A. 8157--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;

A. 8157--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.

co-Sponsors

2015-A8157B (ACTIVE) - Details

Current Committee:: Assembly Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§60.45, 60.25, 60.30, 710.20 & 710.30, add §60.80, CP L; amd §§305.2, 344.2, 343.3 & 343.4, Fam Ct Act; amd §§837 & 840, Exec L
Versions Introduced in 2017-2018 Legislative Session:: A4239

2015-A8157B (ACTIVE) - Summary

Relates to enhancing criminal investigations and prosecutions in relation to the integrity of statements of those accused of crimes and the integrity of eyewitness identifications.

2015-A8157B (ACTIVE) - Bill Text download pdf

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

                                 8157--B

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              June 10, 2015
                               ___________

Introduced  by  M.  of A. LENTOL, O'DONNELL, SEPULVEDA, QUART, WRIGHT --
  read once  and  referred  to  the  Committee  on  Codes  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to  said committee -- recommitted to the Committee on Codes in accord-
  ance with Assembly Rule  3,  sec.  2  --  committee  discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend the criminal procedure law, the family court act and the
  executive law, in relation to statements of those  accused  of  crimes
  and eyewitness identifications, to enhance criminal investigations and
  prosecutions  and to promote confidence in the criminal justice system
  of this state

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

  Section  1.  Section 60.45 of the criminal procedure law is amended by
adding a new subdivision 3 to read as follows:
  3. (A) WHEN A PERSON IS SUBJECT TO INTERROGATION BY A  PUBLIC  SERVANT
AT  A  DETENTION FACILITY, AND THE PUBLIC SERVANT IS AWARE OR HAS REASON
TO SUSPECT THAT THE PERSON INTERROGATED COMMITTED A CRIME UNDER INVESTI-
GATION BY SUCH PUBLIC SERVANT OR A  LAW  ENFORCEMENT  ENTITY  ASSOCIATED
WITH SUCH PUBLIC SERVANT, THE ENTIRE 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 BY AN
APPROPRIATE VIDEO RECORDING DEVICE,  IF  THE  INTERROGATION  INVOLVES  A
CLASS A-1 FELONY OR A VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02
OF  THE  PENAL LAW. THE INTERROGATION SHALL BE RECORDED IN A MANNER SUCH
THAT THE PERSONS IN THE RECORDING ARE SHOWN AND THE SPEECH IS INTELLIGI-
BLE.  SUCH RECORDING MAY ALSO BE CONDUCTED OUTSIDE OF A DETENTION FACIL-
ITY.   FOR PURPOSES OF THIS PARAGRAPH,  THE  TERM  "DETENTION  FACILITY"
SHALL MEAN A POLICE STATION, CORRECTIONAL FACILITY, HOLDING FACILITY FOR
PRISONERS,  PROSECUTOR'S OFFICE OR OTHER FACILITY WHERE PERSONS ARE HELD

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11558-04-6

A. 8157--B                          2

IN DETENTION IN CONNECTION WITH CRIMINAL CHARGES THAT HAVE BEEN  OR  MAY
BE FILED AGAINST THEM.
  (B)  NO CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE SUBJECT TO A
MOTION TO SUPPRESS PURSUANT TO SUBDIVISION THREE OF  SECTION  710.20  OF
THIS CHAPTER BASED SOLELY UPON THE FAILURE TO VIDEO RECORD SUCH INTERRO-
GATION  IN  A  DETENTION  FACILITY  AS  DEFINED IN PARAGRAPH (A) OF THIS
SUBDIVISION. HOWEVER, WHEN THE PEOPLE  OFFER  INTO  EVIDENCE  AGAINST  A
DEFENDANT  A  CONFESSION,  ADMISSION OR OTHER STATEMENT MADE BY A PERSON
WITH RESPECT TO AN ALLEGED OFFENSE SPECIFIED IN PARAGRAPH  (A)  OF  THIS
SUBDIVISION  THAT  HAS NOT BEEN VIDEO RECORDED, THE COURT SHALL CONSIDER
THE FAILURE TO RECORD AS A 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,  FOLLOWING A WRITTEN MOTION OF THE PROSECUTOR ASSERTING GOOD CAUSE
PURSUANT TO THIS PARAGRAPH, FILED WITHIN THE TIME PERIODS  SPECIFIED  IN
SECTION  710.30 OF THIS CHAPTER, AND AFTER AN OPPORTUNITY FOR A HEARING,
UPON CLEAR AND CONVINCING PROOF OF SUCH GOOD CAUSE, THE COURT  MAY  FIND
THAT SUCH INTERROGATION NEED NOT HAVE BEEN RECORDED. SUCH GOOD CAUSE MAY
INCLUDE THE FOLLOWING:
  (I) THE VIDEO RECORDING EQUIPMENT MALFUNCTIONED WHILE THE RECORDING OF
THE INTERROGATION WAS ATTEMPTED.
  (II) VIDEO RECORDING EQUIPMENT WAS NOT REASONABLY AVAILABLE BECAUSE IT
WAS  BEING  USED  TO RECORD OTHER INTERROGATIONS IN ACCORDANCE WITH THIS
SECTION, AND NO SUCH INTERROGATION COULD REASONABLY HAVE BEEN DELAYED.
  (III) THE STATEMENT WAS MADE IN RESPONSE TO  PEDIGREE  QUESTIONS  THAT
ARE REASONABLY AND ROUTINELY ASKED DURING ARREST PROCESSING.
  (IV) THE STATEMENT WAS MADE SPONTANEOUSLY BY THE INDIVIDUAL AND NOT IN
RESPONSE TO QUESTIONING BY A PUBLIC SERVANT.
  (V)  THE STATEMENT WAS MADE DURING AN INTERROGATION THAT WAS CONDUCTED
WHEN THE INTERVIEWER WAS UNAWARE AND HAD NO REASON  TO  SUSPECT  THAT  A
QUALIFYING OFFENSE MAY HAVE OCCURRED.
  (VI)  THE  STATEMENT  WAS  MADE  AFTER THE INDIVIDUAL VOLUNTARILY, AND
WITHOUT EXPRESS OR IMPLIED ENCOURAGEMENT BY A PUBLIC SERVANT, REFUSED TO
PARTICIPATE IN THE INTERROGATION IF RECORDED, AND THE  CIRCUMSTANCES  OF
THE  REFUSAL  WERE  RECORDED  OR,  IF  SUCH  A RECORD OF THE REFUSAL WAS
REFUSED AS WELL, REASONABLY CONTEMPORANEOUS DOCUMENTATION OF THE CIRCUM-
STANCES OF THE REFUSAL WAS MADE.
  (VII) IT WAS THE REASONABLE BELIEF OF THE APPROPRIATE LAW  ENFORCEMENT
OFFICIAL OR OFFICIALS THAT A VIDEO RECORDING WOULD JEOPARDIZE THE SAFETY
OF  A  SPECIFIC  PERSON OR PERSONS OR REVEAL THE IDENTITY OF ONE OR MORE
SPECIFIC  CONFIDENTIAL  INFORMANTS,   AND   REASONABLY   CONTEMPORANEOUS
DOCUMENTATION OF THE CIRCUMSTANCES OF SUCH BELIEF WAS MADE.
  (VIII)  SUCH  STATEMENT  WAS  MADE  AT A LOCATION NOT EQUIPPED WITH AN
APPROPRIATE RECORDING DEVICE, IT WAS NOT REASONABLY POSSIBLE, UNDER  THE
CIRCUMSTANCES, TO BRING EQUIPMENT TO SUCH LOCATION OR TRANSFER THE INDI-
VIDUAL  TO  A  DETENTION  FACILITY FOR INTERROGATION, AND THE REASON FOR
USING SUCH LOCATION WAS 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 THAT AN INTERROGATION THAT QUALIFIED FOR RECORDING
UNDER PARAGRAPH (A) OF THIS SUBDIVISION WAS NOT RECORDED AND  THE  COURT
DETERMINES THAT THE NON-RECORDED, ALLEGED CONFESSION, ADMISSION OR OTHER
STATEMENT  IS  LAWFULLY ADMISSIBLE, THEN, UPON REQUEST OF THE DEFENDANT,
THE COURT MUST INSTRUCT THE JURY THAT THE LAW GENERALLY REQUIRES RECORD-

A. 8157--B                          3

ING UNDER SUCH CIRCUMSTANCES AND THAT THE PEOPLE'S FAILURE TO RECORD THE
DEFENDANT'S ALLEGED CONFESSION, ADMISSION  OR  OTHER  STATEMENT  MAY  BE
CONSIDERED  IN  ITS  DELIBERATIONS,  INCLUDING,  BUT  NOT LIMITED TO, IN
DETERMINING  WHETHER  SUCH ALLEGED CONFESSION, ADMISSION OR OTHER STATE-
MENT WAS VOLUNTARILY MADE, IS ACCURATE OR TRUTHFUL, OR WAS MADE AT  ALL.
WHEN SO INSTRUCTING THE JURY, IF THE COURT HAS FOUND THAT GOOD CAUSE FOR
NON-RECORDING  EXISTED IN ACCORDANCE WITH PARAGRAPH (C) OF THIS SUBDIVI-
SION, THE COURT, AT THE REQUEST OF THE PEOPLE, SHALL ADVISE THE JURY  OF
THE  FACTOR  OR  FACTORS  SET FORTH IN PARAGRAPH (C) OF THIS SUBDIVISION
THAT THE COURT FOUND TO BE PROVED, WITHOUT DISCLOSING THE COURT'S  FIND-
ING  WITH RESPECT THERETO, AND ADVISE THE JURY THAT IT MAY MAKE AN INDE-
PENDENT DETERMINATION CONCERNING WHAT WEIGHT, IF ANY,  TO  GIVE  TO  THE
FAILURE TO RECORD.
  (E)  VIDEO RECORDING AS REQUIRED BY THIS SECTION SHALL BE CONDUCTED IN
ACCORDANCE WITH STANDARDS CONSISTENT WITH THIS  SUBDIVISION  ESTABLISHED
IN REGULATIONS BY THE DIVISION OF CRIMINAL JUSTICE SERVICES.
  S  2.  Subdivision  8  of  section  305.2  of the family court act, as
amended by chapter 398 of the laws of 1983, is amended and a new  subdi-
vision 5-a is  added to read as follows:
  5-A.  WHEN AT ANY TIME A CHILD IS SUBJECT TO INTERROGATION BY A PUBLIC
SERVANT AT A FACILITY DESIGNATED  BY  THE  CHIEF  ADMINISTRATOR  OF  THE
COURTS  AS A SUITABLE PLACE FOR THE QUESTIONING OF JUVENILES PURSUANT TO
SUBDIVISION FOUR OF THIS SECTION, AND THE PUBLIC SERVANT IS AWARE OR HAS
REASON TO SUSPECT THAT THE CHILD  INTERROGATED  COMMITTED  AN  ACT  THAT
WOULD  BE  A  CRIME IF COMMITTED BY AN ADULT AND WHICH IS UNDER INVESTI-
GATION BY SUCH PUBLIC SERVANT OR A  LAW  ENFORCEMENT  ENTITY  ASSOCIATED
WITH SUCH PUBLIC SERVANT, THE ENTIRE INTERROGATION, INCLUDING THE GIVING
OF  ANY  REQUIRED NOTICE TO THE CHILD AS TO HIS OR HER RIGHTS AND HIS OR
HER WAIVER OF ANY RIGHTS,  SHALL  BE  VIDEO  RECORDED  AND  GOVERNED  IN
ACCORDANCE  WITH THE PROVISIONS OF SUBDIVISION THREE OF SECTION 60.45 OF
THE CRIMINAL PROCEDURE LAW. THE INTERROGATION SHALL  BE  RECORDED  IN  A
MANNER  SUCH  THAT THE PERSONS IN THE RECORDING ARE SHOWN AND THE SPEECH
IS INTELLIGIBLE. A COPY OF THE RECORDING SHALL BE SUBJECT  TO  DISCOVERY
PURSUANT  TO  SECTION 331.2 OF THIS ARTICLE.  THIS SUBDIVISION SHALL NOT
APPLY TO A STATEMENT MADE TO THE PROBATION SERVICE, IN  ACCORDANCE  WITH
SUBDIVISION SEVEN OF SECTION 308.1 OF THIS PART, EXCEPT WHEN SUCH STATE-
MENT MAY BE ADMISSIBLE UNDER SUCH SUBDIVISION SEVEN OF SECTION 308.1.
  8.  In  determining the suitability of questioning and determining the
reasonable period of time for questioning such a child, the child's age,
the presence or absence of his OR HER parents or other  persons  legally
responsible for his OR HER care [and], notification pursuant to subdivi-
sion  three  AND,  WHERE  THE  CHILD HAS BEEN INTERROGATED AT A FACILITY
DESIGNATED BY THE CHIEF ADMINISTRATOR OF THE COURTS AS A SUITABLE  PLACE
FOR  THE  QUESTIONING  OF  JUVENILES,  WHETHER  THE INTERROGATION WAS IN
COMPLIANCE WITH  THE  VIDEO-RECORDING  AND  DISCLOSURE  REQUIREMENTS  OF
SUBDIVISION  FIVE-A  OF  THIS  SECTION  shall be included among relevant
considerations.
  S 3. 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:
  3.  WHEN  AT  ANY TIME A CHILD IS SUBJECT TO INTERROGATION BY A PUBLIC
SERVANT AT A FACILITY DESIGNATED  BY  THE  CHIEF  ADMINISTRATOR  OF  THE
COURTS  AS A SUITABLE PLACE FOR THE QUESTIONING OF JUVENILES PURSUANT TO
SUBDIVISION FOUR OF SECTION 305.2 OF THIS ARTICLE, AND THE PUBLIC  SERV-
ANT  IS  AWARE  OR  HAS  REASON  TO  SUSPECT THAT THE CHILD INTERROGATED
COMMITTED AN ACT THAT WOULD CONSTITUTE A CRIME IF COMMITTED BY AN  ADULT
AND  WHICH  IS  UNDER  INVESTIGATION  BY  SUCH  PUBLIC  SERVANT OR A LAW

A. 8157--B                          4

ENFORCEMENT ENTITY ASSOCIATED  WITH  SUCH  PUBLIC  SERVANT,  THE  ENTIRE
INTERROGATION,  INCLUDING THE GIVING OF ANY REQUIRED NOTICE TO THE CHILD
AS TO HIS OR HER RIGHTS AND HIS OR HER WAIVER OF ANY  RIGHTS,  SHALL  BE
VIDEO  RECORDED AND GOVERNED IN ACCORDANCE WITH THE PROVISIONS OF SUBDI-
VISION THREE OF SECTION 60.45 OF THE CRIMINAL PROCEDURE LAW.  THE INTER-
ROGATION SHALL BE RECORDED IN A MANNER SUCH  THAT  THE  PERSONS  IN  THE
RECORDING  ARE  SHOWN  AND  THE  SPEECH  IS  INTELLIGIBLE. A COPY OF THE
RECORDING SHALL BE SUBJECT TO DISCOVERY PURSUANT  TO  SECTION  331.2  OF
THIS  ARTICLE.   THIS SUBDIVISION SHALL NOT APPLY TO A STATEMENT MADE TO
THE PROBATION SERVICE, IN ACCORDANCE WITH SUBDIVISION SEVEN  OF  SECTION
308.1  OF  THIS  ARTICLE,  EXCEPT  WHEN SUCH STATEMENT MAY BE ADMISSIBLE
UNDER SUCH SUBDIVISION SEVEN OF SECTION 308.1.
  S 4. 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 PROCEDURE AS DEFINED IN
PARAGRAPH (C) OF THIS SUBDIVISION, A PICTORIAL, PHOTOGRAPHIC,  ELECTRON-
IC,  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)  (I)  FOR  PURPOSES OF THIS SECTION, A "BLIND PROCEDURE" IS ONE IN
WHICH THE WITNESS IDENTIFIES A PERSON IN AN ARRAY OF  PICTORIAL,  PHOTO-
GRAPHIC,  ELECTRONIC,  FILMED  OR  VIDEO  RECORDED  REPRODUCTIONS  UNDER
CIRCUMSTANCES THAT COMPLY WITH  THE  APPLICABLE  PROVISIONS  OF  SECTION
60.80  OF  THE  CRIMINAL  PROCEDURE LAW AND THE PROTOCOLS PROMULGATED IN
ACCORDANCE WITH SUBDIVISION TWENTY-ONE OF SECTION EIGHT HUNDRED  THIRTY-
SEVEN  OF THE EXECUTIVE LAW AND WHERE, AT THE TIME THE IDENTIFICATION IS
MADE, EACH PUBLIC SERVANT ADMINISTERING SUCH PROCEDURE AND WITH WHOM THE
WITNESS COMMUNICATES WITH RESPECT TO THE CONDUCTING  OF  SUCH  PROCEDURE
DOES NOT KNOW WHICH PERSON IN THE ARRAY IS THE SUSPECT.
  (II)  THE FAILURE OF A PUBLIC SERVANT TO FOLLOW SUCH A PROCEDURE SHALL
RESULT IN THE  PRECLUSION  OF  TESTIMONY  REGARDING  THE  IDENTIFICATION
PROCEDURE AS EVIDENCE IN CHIEF, BUT SHALL NOT, IN AND OF ITSELF, CONSTI-
TUTE  A  LEGAL  BASIS  TO SUPPRESS EVIDENCE IN RESPONSE TO A MOTION MADE

A. 8157--B                          5

PURSUANT TO SUBDIVISION SIX OF SECTION  710.20  OF  THIS  CHAPTER.  THIS
PARAGRAPH,  IN AND OF ITSELF, 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
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 5. 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 PROCEDURE, AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF
SECTION 60.25 OF THIS ARTICLE, 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 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 previous 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
incriminating occasion.  Such testimony AND SUCH PICTORIAL,  PHOTOGRAPH-
IC,  ELECTRONIC,  FILMED  OR  VIDEO  RECORDED  REPRODUCTION  constitutes
evidence in chief.
  S 6. The criminal procedure law is amended by  adding  a  new  section
60.80 to read as follows:
S 60.80 EYEWITNESS IDENTIFICATION PROCEDURES.
  IN ANY ARRAY AND ANY LIVE LINEUP IDENTIFICATION PROCEDURE CONDUCTED BY
A PUBLIC SERVANT, THE FOLLOWING PROCEDURES SHALL BE FOLLOWED:
  1.  THE IDENTIFICATION PROCEDURE SHALL BE CONDUCTED AS A "BLIND PROCE-
DURE" AS DEFINED IN SUBPARAGRAPH (I) OF PARAGRAPH (C) OF SUBDIVISION ONE
OF SECTION 60.25 OF THIS ARTICLE.
  2. PRIOR TO ANY SUCH IDENTIFICATION PROCEDURE, THE EYEWITNESS SHALL BE
INSTRUCTED THAT:
  (A) THE PERPETRATOR MAY OR MAY NOT BE AMONG THE PERSONS IN  THE  IDEN-
TIFICATION PROCEDURE;
  (B) THE ADMINISTRATOR DOES NOT KNOW WHO THE PERPETRATOR IS;

A. 8157--B                          6

  (C)  THE  EYEWITNESS  SHOULD NOT FEEL COMPELLED TO MAKE AN IDENTIFICA-
TION;
  (D)  THE  INVESTIGATION WILL CONTINUE WHETHER OR NOT AN IDENTIFICATION
IS MADE; AND
  (E) THE PROCEDURE REQUIRES THE ADMINISTRATOR TO ASK AND THEN  DOCUMENT
A  STATEMENT, MADE IN THE WITNESS'S OWN WORDS, OF THE WITNESS'S LEVEL OF
CONFIDENCE IN THE ACCURACY OF ANY IDENTIFICATION.
  3. (A) UNLESS IMPRACTICABLE, THE PHOTOGRAPH OF THE SUSPECT USED  IN  A
PHOTO  ARRAY SHALL BE CONTEMPORARY AND RESEMBLE THE SUSPECT'S APPEARANCE
AT THE TIME OF THE OFFENSE. WHEN SUCH IS IMPRACTICABLE, THE INVESTIGATOR
SHALL DOCUMENT, IN REASONABLY CONTEMPORANEOUS WRITTEN FORM, THE  REASONS
THEREFOR.
  (B)  IN A PHOTO ARRAY, THERE SHALL BE NO CHARACTERISTICS OF THE PHOTO-
GRAPHS THEMSELVES OR THE BACKGROUND ON WHICH THEY ARE PLACED THAT  WOULD
MAKE ANY PHOTOGRAPH STAND OUT.
  (C) A PHOTO ARRAY OR LIVE LINEUP SHALL BE COMPOSED SO THAT THE FILLERS
GENERALLY  RESEMBLE  THE  EYEWITNESS'S  DESCRIPTION  OF THE PERPETRATOR,
WHILE ENSURING THAT THE SUSPECT DOES NOT STAND OUT FROM THE FILLERS.
  (D) IF THERE ARE MULTIPLE EYEWITNESSES, EACH EYEWITNESS SHALL VIEW THE
PHOTO ARRAY OR LIVE LINEUP SEPARATELY, THE SUSPECT SHALL BE PLACED IN  A
DIFFERENT  POSITION  IN  THE  LIVE  LINEUP  AND/OR  PHOTO ARRAY FOR EACH
EYEWITNESS, AND THE EYEWITNESSES SHALL NOT BE PERMITTED  TO  COMMUNICATE
WITH  EACH  OTHER  UNTIL  ALL OF THE IDENTIFICATION PROCEDURES HAVE BEEN
COMPLETED.
  4. (A) NOTHING SHALL BE SAID TO AN EYEWITNESS THAT MIGHT INFLUENCE HIS
OR HER IDENTIFICATION OF ANY PARTICULAR PERSON IN  THE  LIVE  LINEUP  OR
PHOTO ARRAY.
  (B)  IF  THE  EYEWITNESS  IDENTIFIES  A PERSON AS THE PERPETRATOR, THE
EYEWITNESS SHALL NOT BE PROVIDED ANY INFORMATION CONCERNING SUCH  PERSON
BEFORE  THE  ADMINISTRATOR OBTAINS THE EYEWITNESS'S CONFIDENCE STATEMENT
ABOUT THE SELECTION.
  5. (A) A RECORD OF THE IDENTIFICATION PROCEDURE  SHALL  BE  MADE  THAT
INCLUDES  ALL  IDENTIFICATION  AND  NON-IDENTIFICATION  RESULTS OBTAINED
DURING THE IDENTIFICATION PROCEDURES.
  (B) (I) A VIDEO RECORDING SHALL BE MADE OF THE  ENTIRE  IDENTIFICATION
PROCEDURE,  INCLUDING BUT NOT LIMITED TO THE SETTING UP OF THE PROCEDURE
AND THE INSTRUCTIONS AND STATEMENTS OF WITNESSES AND  THE  STATEMENT  OR
STATEMENTS  MADE  IN COMPLIANCE WITH PARAGRAPH (E) OF SUBDIVISION TWO OF
THIS SECTION.
  (II) NOTWITHSTANDING THE REQUIREMENTS  OF  SUBPARAGRAPH  (I)  OF  THIS
PARAGRAPH,  FOLLOWING  A  WRITTEN MOTION OF THE PROSECUTOR, AND AFTER AN
OPPORTUNITY FOR A HEARING, THE COURT MAY FIND THAT A VIDEO RECORDING WAS
NOT REQUIRED IF THE PEOPLE SHOW BY CLEAR AND  CONVINCING  EVIDENCE  THAT
(A)  THE  VIDEO RECORDING EQUIPMENT MALFUNCTIONED WHILE THE RECORDING OF
THE IDENTIFICATION PROCEDURE WAS ATTEMPTED; (B) VIDEO  RECORDING  EQUIP-
MENT  WAS  NOT  REASONABLY AVAILABLE BECAUSE IT WAS BEING USED TO RECORD
OTHER IDENTIFICATION PROCEDURES IN ACCORDANCE WITH THIS SECTION, AND  NO
SUCH IDENTIFICATION PROCEDURE COULD REASONABLY HAVE BEEN DELAYED; OR (C)
SUCH  IDENTIFICATION  PROCEDURE WAS MADE AT A LOCATION NOT EQUIPPED WITH
AN APPROPRIATE RECORDING DEVICE, IT WAS NOT REASONABLY  POSSIBLE,  UNDER
THE  CIRCUMSTANCES,  TO  BRING  EQUIPMENT TO SUCH LOCATION OR   MOVE THE
PROCEDURE TO A LOCATION AT WHICH APPROPRIATE VIDEO RECORDING WAS  AVAIL-
ABLE,  AND  THE  REASON  FOR  USING  THE LOCATION WAS NOT TO SUBVERT THE
INTENT OF THE LAW.

A. 8157--B                          7

  (III) VIDEO  RECORDING,  AS  REQUIRED  BY  THIS  PARAGRAPH,  SHALL  BE
CONDUCTED  IN  ACCORDANCE  WITH STANDARDS CONSISTENT WITH THIS PARAGRAPH
ESTABLISHED IN REGULATIONS BY THE DIVISION OF CRIMINAL JUSTICE SERVICES.
  6. THE FOLLOWING DEFINITIONS SHALL APPLY TO THIS SECTION:
  (A)  "BLIND" MEANS AT THE TIME THE IDENTIFICATION IS MADE, EACH PUBLIC
SERVANT ADMINISTERING THE IDENTIFICATION PROCEDURE  AND  WITH  WHOM  THE
WITNESS  COMMUNICATES  DOES  NOT  KNOW  WHICH PERSON IN THE ARRAY IS THE
SUSPECT.
  (B) "EYEWITNESS" OR "WITNESS" MEANS  A  PERSON  WHO  OBSERVES  ANOTHER
PERSON  AT  OR  NEAR THE SCENE OF AN OFFENSE OR UPON SOME OTHER OCCASION
RELEVANT TO THE INVESTIGATION OR CASE.
  (C) "FILLER" MEANS EITHER A PERSON OR A PHOTOGRAPH OF A PERSON WHO  IS
NOT  SUSPECTED  OF THE OFFENSE UNDER INVESTIGATION AND IS INCLUDED IN AN
IDENTIFICATION PROCEDURE.
  (D) "IDENTIFICATION PROCEDURE" MEANS A LIVE LINEUP OR A PHOTO ARRAY.
  (E) "LIVE LINEUP" MEANS AN IDENTIFICATION PROCEDURE IN WHICH  A  GROUP
OF  PERSONS, INCLUDING THE SUSPECTED PERPETRATOR OF AN OFFENSE AND OTHER
PERSONS NOT SUSPECTED OF THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS  FOR
THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS IDENTIFIES THE SUSPECT
AS THE PERPETRATOR.
  (F) "ARRAY" MEANS ANY PHOTOGRAPHIC ARRAY.
  (G)  "PHOTOGRAPHIC  ARRAY"  OR  "PHOTO  ARRAY" MEANS AN IDENTIFICATION
PROCEDURE IN WHICH AN ARRAY OF PHOTOGRAPHS, INCLUDING  A  PHOTOGRAPH  OF
THE  SUSPECTED PERPETRATOR OF AN OFFENSE AND OTHER PERSONS NOT SUSPECTED
OF THE OFFENSE, IS DISPLAYED TO AN EYEWITNESS EITHER IN HARD  COPY  FORM
OR  VIA  COMPUTER  FOR THE PURPOSE OF DETERMINING WHETHER THE EYEWITNESS
IDENTIFIES THE SUSPECT AS THE PERPETRATOR.
  S 7. 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
IDENTIFICATION OF A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO
RECORDED  REPRODUCTION  OF  THE DEFENDANT by the prospective witness.  A
CLAIM THAT SUCH PREVIOUS IDENTIFICATION OF THE DEFENDANT OR  IDENTIFICA-
TION  OF A PICTORIAL, PHOTOGRAPHIC, 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 OR SECTION 60.80
OF THIS CHAPTER OR WITH THE PROTOCOLS  PROMULGATED  IN  ACCORDANCE  WITH
SUBDIVISION  TWENTY-ONE  OF  SECTION  EIGHT  HUNDRED THIRTY-SEVEN OF THE
EXECUTIVE LAW SHALL NOT, IN AND OF ITSELF, CONSTITUTE A LEGAL  BASIS  TO
SUPPRESS EVIDENCE IN RESPONSE TO A MOTION MADE PURSUANT TO THIS SUBDIVI-
SION.
  S 8. 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

A. 8157--B                          8

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 9. 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  PROCEDURE  AS  DEFINED  IN
PARAGRAPH  (C) OF THIS SUBDIVISION, A PICTORIAL, PHOTOGRAPHIC, ELECTRON-
IC, 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) (I) FOR PURPOSES OF THIS SECTION, A "BLIND PROCEDURE"  IS  ONE  IN
WHICH  THE  WITNESS IDENTIFIES A PERSON IN AN ARRAY OF PICTORIAL, PHOTO-
GRAPHIC,  ELECTRONIC,  FILMED  OR  VIDEO  RECORDED  REPRODUCTIONS  UNDER
CIRCUMSTANCES  THAT  COMPLY  WITH  THE  APPLICABLE PROVISIONS OF SECTION
60.80 OF THE CRIMINAL PROCEDURE LAW AND  THE  PROTOCOLS  PROMULGATED  IN
ACCORDANCE  WITH SUBDIVISION TWENTY-ONE OF SECTION EIGHT HUNDRED THIRTY-
SEVEN OF THE EXECUTIVE LAW AND WHERE, AT THE TIME THE IDENTIFICATION  IS
MADE, EACH PUBLIC SERVANT ADMINISTERING SUCH PROCEDURE AND WITH WHOM THE
WITNESS  COMMUNICATES  WITH  RESPECT TO THE CONDUCTING OF SUCH PROCEDURE
DOES NOT KNOW WHICH PERSON IN THE ARRAY IS THE SUSPECT.
  (II) THE FAILURE OF A PUBLIC SERVANT TO FOLLOW SUCH A PROCEDURE  SHALL
RESULT  IN  THE  PRECLUSION  OF  TESTIMONY  REGARDING THE IDENTIFICATION
PROCEDURE AS EVIDENCE IN CHIEF, BUT SHALL NOT, IN OF OF ITSELF,  CONSTI-
TUTE A LEGAL BASIS TO SUPPRESS EVIDENCE MADE PURSUANT TO SUBDIVISION SIX
OF  SECTION 710.20 OF THE CRIMINAL PROCEDURE LAW. THIS PARAGRAPH, IN AND
OF ITSELF, NEITHER LIMITS NOR EXPANDS SUBDIVISION SIX OF SECTION  710.20
OF THE CRIMINAL PROCEDURE LAW.
  2.  Under circumstances prescribed in subdivision one OF THIS SECTION,
such witness may testify at the proceeding that the person  whom  he  OR
SHE  observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRON-
IC, FILMED OR VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED AND  RECOG-
NIZED  on the second occasion is the same person whom he OR SHE observed
on the first or incriminating occasion. Such  testimony,  together  with

A. 8157--B                          9

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  10.  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 PROCEDURE, A PICTORIAL, PHOTOGRAPHIC, ELECTRON-
IC,  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 PROCEDURE" SHALL BE AS DEFINED IN SUBPARAGRAPH (I)  OF
PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 343.3 OF THIS PART.
  S  11.  Section  837  of  the executive law is amended by adding a new
subdivision 21 to read as follows:
  21. PROMULGATE BY  REGULATION  A  STANDARDIZED  AND  DETAILED  WRITTEN
PROTOCOL  THAT IS GROUNDED IN EVIDENCE-BASED PRINCIPLES FOR THE ADMINIS-
TRATION OF PHOTOGRAPHIC ARRAY AND LIVE LINEUP IDENTIFICATION  PROCEDURES
FOR  POLICE  AGENCIES AND STANDARDIZED FORMS FOR USE BY SUCH AGENCIES IN
THE REPORTING AND  RECORDING  OF  SUCH  IDENTIFICATION  PROCEDURE.  SUCH
PROTOCOL  SHALL  BE CONSISTENT IN ALL RESPECTS WITH SECTION 60.80 OF THE
CRIMINAL PROCEDURE LAW.
  S 12. 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 SECTION 60.80 OF THE CRIMINAL PROCEDURE LAW AND SUBDIVI-
SION TWENTY-ONE OF SECTION EIGHT HUNDRED THIRTY-SEVEN OF THIS ARTICLE TO
ALL POLICE DEPARTMENTS AND LAW ENFORCEMENT AGENCIES IN  THIS  STATE  AND
IMPLEMENT A TRAINING PROGRAM FOR ALL CURRENT AND NEW POLICE OFFICERS AND
FOR RELEVANT LAW ENFORCEMENT OFFICIALS REGARDING THE POLICIES AND PROCE-
DURES  ESTABLISHED  PURSUANT  TO SECTION 60.80 OF THE CRIMINAL PROCEDURE
LAW AND SUBDIVISION TWENTY-ONE OF SECTION EIGHT HUNDRED THIRTY-SEVEN  OF
THIS ARTICLE.
  S  13.  This act shall take effect on the thirtieth day after it shall
have become a law; provided, however, that sections one, two  and  three

A. 8157--B                         10

of  this  act  shall apply to alleged confessions, admissions and state-
ments made on or after  such  effective  date;  and  provided,  further,
sections  four through eleven of this act shall take effect on the nine-
tieth day after it shall have become a law.

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Assembly Bill A8157B

Sponsored By

Archive: Last Bill Status - In Assembly Committee

Bill Amendments

co-Sponsors

2015-A8157 - Details

2015-A8157 - Summary

2015-A8157 - Bill Text download pdf

co-Sponsors

2015-A8157A - Details

2015-A8157A - Summary

2015-A8157A - Bill Text download pdf

co-Sponsors

2015-A8157B (ACTIVE) - Details

2015-A8157B (ACTIVE) - Summary

2015-A8157B (ACTIVE) - Bill Text download pdf

Comments

Assembly Bill A8157B

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Sponsored By

LENTOL

Archive: Last Bill Status - In Assembly Committee

Bill Amendments

co-Sponsors

Luis R. Sepúlveda

2015-A8157 - Details

2015-A8157 - Summary

2015-A8157 - Bill Text download pdf

co-Sponsors

Daniel O'Donnell

Luis R. Sepúlveda

Dan Quart

Keith L.T. Wright

2015-A8157A - Details

2015-A8157A - Summary

2015-A8157A - Bill Text download pdf

co-Sponsors

Daniel O'Donnell

Luis R. Sepúlveda

Dan Quart

Keith L.T. Wright

2015-A8157B (ACTIVE) - Details

2015-A8157B (ACTIVE) - Summary

2015-A8157B (ACTIVE) - Bill Text download pdf

Comments