BILL NUMBER:  S2512

 TITLE OF BILL :  An act to amend the criminal procedure law, in
relation to examination of witnesses

 PURPOSE :

To add elderly witnesses, age 75 years or older, to the category of
witnesses who may be eligible to be examined conditionally, pursuant
to Article 660 of the Criminal Procedure Law, in order that such
testimony may be received into evidence at subsequent proceedings in
or related to the action.

 SUMMARY OF PROVISIONS :

Section 1 amends § 660.20, subdivision 2, to include witnesses age 75
or older to be eligible to be examined conditionally as a witness who
will not be amenable or responsive to legal process or available as a
witness at a time when their testimony will be sought pursuant to
Article 660 of the Criminal Procedure Law.

Section 2 states that this act shall take effect immediately.

 JUSTIFICATION :

There are nearly six million cases of elder abuse in the U.S. every
              

year. Only five states account for more than one third of all elder
abuse cases in the nation, and New York State is one of them. As the
senior population is poised to grow significantly over the next
decade, it is almost certain that there will be a steady rise in the
number of elder abuse cases in New York State.

Elder abuse crimes can take many forms. The case may involve domestic
violence in which family members or caregivers physically abuse elders
within the home. The largest growing area of elder abuse involves the
financial exploitation of seniors, including con games and scams, in
which older victims are defrauded by relatives, caregivers,
fiduciaries, or strangers. Elder abuse victims are often partly or
wholly reliant on the abuser. Many older victims suffer from
age-related, degenerative mental conditions involving cognitive
impairment, such as Alzheimer's disease or other forms of dementia.
The exploitation of a victim's advanced age is likely to have been the
very reason why he or she was targeted in the first place. In some
cases, the older victim may be the only witness in the case. Sadly,
many elderly victims, who appear to be healthy at the outset of the
investigation or the time of arrest, pass away before the case goes to
trial. The elder's death, although attributable to advanced age, may
be sudden and come about with little warning.

Prosecutors in New York State have seen an increase in the number of
elder abuse cases, but they are presently hamstrung by the void in
Article 660, as witnesses of advanced age are not eligible to be
examined conditionally unless they suffer from demonstrable physical
illness or incapacity at the time the application is made. In a case
prosecuted a few years ago, an elderly man in his 90s, said to be in
good health for his age, was the victim of a theft by his long-time
home aide. He passed away after the aide's arrest but before the case
was presented to the Grand Jury. The case was prosecuted, but would
have been improvable if the aide had not confessed (People v.
Koroma). In another recent case, a defendant stole $46,000 from a
woman in her 80s, who was not physically ill. After the aide was
indicted, the victim passed away unexpectedly. The case was resolved
in a misdemeanor plea (People v. Robeck). These were cases in which
the People did not move to preserve the victim's testimony under CPL
660.20, as the statute does not authorize an application for a

conditional examination based solely on the victim's advanced age, if
he or she is in otherwise good health.

In order to serve the interest of justice, prosecutors and defense
attorneys should be able to seek to preserve the testimony of
witnesses who are of advanced age. With respect to the issue of what
should constitute advanced age under the statute, data from the
Centers for Disease Control shows that Americans live, on average,
77.8 years. In light of this finding, the option of a conditional
examination for a witness who is age 75 or older is warranted, given
the parameters of the speedy trial statute and the periods of time
that are deemed to be excludible, under the law.

Offenders should not be able to "game the system" by delaying the
trial in the hope that an older witness will succumb to conditions
associated with advanced age or pass away before trial. A conditional
examination would preserve the testimony of witnesses of advanced age
in the unfortunate event that advanced age or an associated
degenerative condition renders them unavailable or incapable of
testifying at trial because of their death, even if they appeared to
be healthy at the time of the defendant's arraignment.

 LEGISLATIVE HISTORY :

2015-16: S.394/A.4440 Passed Senate/Referred to Codes
2013-14: S.7178/A.8779 Passed Senate/Referred to Codes

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately.