BILL NUMBER: S716

SPONSOR: GALLIVAN
 
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 attrib-
utable to advanced age, may be sudden and come about with little warn-
ing.

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 Arti-
cle 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 phys-
ically ill. After the aide was indicted, the victim passed away unex-
pectedly. 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 author-
ize 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 unfor-
tunate 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:

2017-18: S.2512/A.3286 Passed Senate/Referred to Codes
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.