S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4826
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               March 2, 2017
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 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
 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-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03939-02-7

 S. 4826                             2
 
 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-
 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.

 S. 4826                             3
 
 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.
   §  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.
   § 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
 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-

 S. 4826                             4
 
 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.
   § 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:
 § 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
 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

 S. 4826                             5
 
 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.
   §  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:
 § 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.
   §  6.  The  criminal  procedure law is amended by adding a new section
 60.80 to read as follows:
 § 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;
   (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

 S. 4826                             6
 
   (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.
   (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

 S. 4826                             7
 
 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.
   § 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.
   § 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
 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.
   § 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. 4826                             8
 
   § 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
 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.
   §  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. 4826                             9
 
   § 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.
   §  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.
   § 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.
   §  13.  This act shall take effect on the ninetieth day after it shall
 have become a law.