S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5284
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 7, 2023
                                ___________
 
 Introduced by M. of A. WALKER -- read once and referred to the Committee
   on Codes
 
 AN  ACT to amend the criminal procedure law and the family court act, in
   relation to statements of those accused of crimes to enhance  criminal
   investigations and prosecutions and to promote confidence in the crim-
   inal 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. Subdivision 3 of section 60.45 of  the  criminal  procedure
 law,  as  added  by  section  1 of part VVV of chapter 59 of the laws of
 2017, is amended to read as follows:
   3. (a) [Where] WHEN a person is subject to  [custodial]  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 INVESTIGATION BY SUCH PUBLIC SERVANT OR  A  LAW  ENFORCEMENT
 ENTITY  ASSOCIATED  WITH  SUCH  PUBLIC  SERVANT,  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 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].  THE  INTERROGATION  SHALL  BE
 RECORDED    IN A MANNER SUCH THAT THE PERSONS IN THE RECORDING ARE SHOWN
 AND THE SPEECH IS  INTELLIGIBLE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02247-01-3
              

 A. 5284                             2
 
   (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] WHEN the people offer into evidence AGAINST
 A  DEFENDANT 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 ALLEGED offense [specified in paragraph (a) of this
 subdivision,] that has not been video recorded, the court shall [consid-
 er  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-
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 nal justice services] EXCLUDE SUCH CONFESSION, ADMISSION OR OTHER STATE-
 MENT FROM USE AS EVIDENCE AT TRIAL OR AT ANY PRETRIAL HEARING.
   §  2. Subdivisions 5-a and 8 of section 305.2 of the family court act,
 subdivision 5-a as added and subdivision 8 as amended by chapter 299  of
 the laws of 2020, are amended to read as follows:
   5-a.  [Where] WHEN AT ANY TIME a child is subject to interrogation [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,] BY A PUBLIC SERVANT 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
 INVESTIGATION BY SUCH PUBLIC SERVANT OR A LAW ENFORCEMENT ENTITY ASSOCI-
 ATED  WITH  SUCH PUBLIC SERVANT, the entire interrogation, including the
 giving of any required notice to the child as to his or her  rights  and
 the  child's  waiver of any rights, shall be video recorded [in a manner
 consistent with standards established by rule of the division of  crimi-
 nal  justice services pursuant to paragraph (e)] AND GOVERNED IN ACCORD-
 ANCE 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 [identifiable] 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 ACCORD-
 ANCE  WITH  SUBDIVISION SEVEN OF SECTION 308.1 OF THIS PART, EXCEPT WHEN
 SUCH STATEMENT 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, notification  pursuant  to  subdivision
 three  OF  THIS  SECTION and, where the child has been interrogated at a
 facility designated by the chief administrator of the courts as a  suit-
 able  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,  as
 amended  by  chapter  299  of  the  laws  of 2020, is amended to read as
 follows:
   3. [Where a respondent] WHEN AT ANY TIME A CHILD is subject to  inter-
 rogation  by  a  public  servant [at a facility specified in subdivision
 four of section 305.2 of this article,] AND THE PUBLIC SERVANT 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  [custodial]  interro-
 gation,  including  the giving of any required [advice of the] NOTICE TO
 THIS CHILD AS TO HIS OR HER rights [of the individual being questioned,]
 and [the] HIS OR HER waiver of any rights [by the individual], shall  be
 VIDEO  recorded  and  governed  in  [a  manner consistent with standards
 established by rule of the division of criminal justice services  pursu-
 ant  to  paragraph  (e)]  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
 [identifiable]  SHOWN  and  the  speech  is  intelligible. A copy of the
 recording shall be subject to discovery pursuant  to  section  331.2  of
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 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.  This  act shall take effect on the ninetieth day after it shall
 have become a law.