BILL NUMBER: S9276             Revised 5/24/2024

SPONSOR: GIANARIS
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to allowing
evidence of a defendant's prior sexual offense to be admissible in a
sexual assault proceeding

 
PURPOSE:

To allow courts to admit evidence that a defendant has committed prior
sexual offenses in a criminal proceeding in which a defendant is accused
of a sexual offense.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 adds a new section 60.77 to the criminal procedure law to
allow courts to admit evidence that a defendant has committed prior
sexual offenses in a criminal proceeding in which a defendant is accused
of a sexual assault. Such evidence may be considered on any matter to
which is it relevant, including to prove that the defendant acted in
              

conformity therewith or had a propensity to engage in similar wrongful
acts. This section also states the court, in its discretion, may exclude
evidence if its probative value is outweighed by the probability that
its admission will create undue prejudice to the defendant.

Section 2 provides the effective date.

 
JUSTIFICATION:

Unlike most states, New York does not have a statutory code of evidence.
The majority of New York's evidence rules come from case law, and a
limited number of rules are contained in the Criminal Procedure Law.

Sixteen states have adopted some version of Rule 413 of the Federal
Rules of Evidence (FRE). Pursuant to FRE 413, in a criminal case in
which a defendant is accused of sexual assault, the court may admit
evidence that the defendant committed any other past sexual assault.
New York has not adopted FRE 413. It does follow the narrower Molineux
Rule, named for a Court of Appeals case, which allows prosecutors to
bring in proof of a defendant's prior bad acts or crimes to "establish
motive, opportunity, intent, common scheme or plan, knowledge, identity
or absence of mistake or accident"(See People v. Molineux, 168 N.Y.264,
1901).

Prosecutors trying to bring evidence in under the Molineux Rule have a
very high threshold to cross. It is not often used successfully in New
York, since any evidence of prior bad acts or crimes is typically deemed
as highly prejudicial. Evidence of prior bad acts or crimes will only be
allowed in if the probative value of the evidence outweighs any preju-
dice towards the defendant.

This bill would allow New York courts to admit evidence that a defendant
has committed any prior sexual offenses in a criminal proceeding in
which a defendant is accused of a sexual offense.

The Harvey Weinstein case has highlighted the need to codify FRE 413 in
New York. In 2020, he was convicted in New York of a criminal sexual act
in the first degree and rape in the third degree, for offenses against
two women. The judge in his trial allowed for the admittance of evidence
of his prior sex assaults under the Molineux Rule. At that time,
Weinstein's defense team unsuccessfully filed an appeal arguing that
such evidence should never have been allowed.  However, in 2024,
Weinstein's team was successful and the New York Court of Appeals over-
turned the 2020 conviction, concluding that, "the trial court erroneous-
ly admitted testimony of uncharged, alleged prior sexual acts against
persons other than the complainants of the underlying case."

This legislation is necessary to ensure that survivors will be able to
rely on this type of evidence in future cases. According to the Depart-
ment of Justice, recidivism rates for those who commit sexual assaults
are approximately 24% percent after 15 years. Furthermore, rapists and
sex offenders are far more likely overall, as compared to non-sex offen-
ders, to reoffend with a sexual crime.

Sexual offenses are especially heinous crimes and given the likelihood
of recidivism, it is necessary to codify FRE 413 and allow for evidence
of prior offense to be admitted in sexual offense proceedings. Success-
fully bringing in such evidence under Molineux is a difficult hurdle for
prosecutors, and codifying FRE 413 will ensure that such evidence is
permissible and will not be subject to challenges.

 
LEGISLATIVE HISTORY:

New Bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.