NY State Senate Bill 2023-S9564

Current Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 16, 2024	referred to codes

2023-S9564 (ACTIVE) - Details

See Assembly Version of this Bill:: A10415
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add Art 67 §§67.00 - 67.30, CP L

2023-S9564 (ACTIVE) - Summary

Authorizes the use of closed-circuit television for vulnerable sexual assault witnesses; establishes a procedure for determining who qualifies as a vulnerable sexual assault witness.

2023-S9564 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9564

SPONSOR: MAY
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to authorizing
the use of closed-circuit television for vulnerable sexual assault
witnesses

 
PURPOSE:

To allow for certain sexual assault survivors and witnesses to testify
in criminal proceedings by use of live, two-way closed-circuit tele-
vision, with the approval of a judge

 
SUMMARY OF PROVISIONS:

Subdivision 1 of the bill would amend § 67 of the CPL to create defi-
nitions.

Subdivision 2 of the bill would amend § 67.10 of the CPL to allow remote
testimony by certain sexual assault witnesses. A sexual assault witness

may be declared vulnerable when the court determines that the witness
will suffer serious mental or emotional harm without the use of live,
two-way closed circuit television testimony. The bill would allow for a
vulnerable sexual assault witness to have a support person or victim
advocate in the testimonial room.

Subdivision 3 of the bill would amend § 67.20 of the CPL to provide for
procedure for application and grounds for determination of vulnerable
sexual assault witness. Prior to the criminal proceedings, either party
may apply for a court order declaring that a sexual assault witness is
vulnerable. In order to apply, a motion must be made to the court at
least 8 days prior to the criminal proceedings.  If the material facts
in support of the motion are not conceded, then the court must conduct a
hearing for finding of those facts. The sexual assault witness who is
alleged to be vulnerable may not have to testify at that hearing.

Subdivision 4 of the bill would amend § 67.30 of the CPL to establish a
procedure for the use of live, two-way closed-circuit television.  When
a vulnerable sexual assault witness testifies by closed circuit tele-
vision, their image and voice, as well as the image of anyone else pres-
ent in the testimonial room must be transmitted live to the courtroom.
The image of the jury must be transmitted to the vulnerable sexual
assault witness in the testimony room, as well as the image of the
defendant and image and video of the person examining the witness under
certain circumstances.

Section 2 of the bill would set the effective date.

 
JUSTIFICATION:

Data shows that the justice system consistently underserves survivors of
sexual assault. For every 1,000 instances of sexual assault, 13 will be
referred to a prosecutor. On the infrequent occasion that a sexual
assault case makes it to the courtroom, the survivor of the assault
risks their own safety-physical, mental, and emotional-to testify before
a judge or a jury of their peers. We have seen the horrors that survi-
vors have been through on the stand, which can frequently retraumatize
them, as the accused looks on, or, in at least one recent case in Syra-
cuse, is the one questioning them. This bill would allow survivors of
sexual trauma to testify before the court via teleconference.

Though the confrontation clause of the Sixth Amendment of the US Consti-
tution provides defendants the right to "be confronted with all
witnesses against him," the law already allows vulnerable minors to
testify through closed circuit television, to give insulation against
defendants harassing and retraumatizing victims. In 1990, the US Supreme
Court decided Maryland v. Craig, which establishes that the right to a
"face-to-face" meeting is "not absolute" and "must occasionally give way
to considerations of public policy and the necessities of the case." The
justices laid out a standard that allows remote testimony when it
substantially upholds the core tenets of the Confrontation Clause: the
ability of the accused to see, question, and consider the testimony of a
witness against them. This bill uses the same standards provided for
vulnerable minors in New York law to testify via remote testimony in
certain cases to include adult sexual assault victims who are deemed
vulnerable by the court.

 
LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None to the state.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S9564 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9564
 
                             I N  S E N A T E
 
                               May 16, 2024
                                ___________
 
 Introduced  by  Sen.  MAY  --  read  twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in relation  to  authorizing
   the  use  of  closed-circuit  television for vulnerable sexual assault
   witnesses
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. The criminal procedure law is amended by adding a new arti-
 cle 67 to read as follows:
                                 ARTICLE 67
                     USE OF CLOSED-CIRCUIT TELEVISION
                   FOR CERTAIN SEXUAL ASSAULT WITNESSES
 SECTION 67.00 DEFINITIONS.
         67.10 CLOSED-CIRCUIT  TELEVISION;  GENERAL  RULE; DECLARATION OF
                 VULNERABILITY.
         67.20 CLOSED-CIRCUIT TELEVISION; PROCEDURE FOR  APPLICATION  AND
                 GROUNDS FOR DETERMINATION.
         67.30 CLOSED-CIRCUIT TELEVISION; SPECIAL TESTIMONIAL PROCEDURE.
 § 67.00 DEFINITIONS.
   AS USED IN THIS ARTICLE:
   1.  "SEXUAL ASSAULT WITNESS" MEANS A PERSON FIFTEEN YEARS OR OLDER WHO
 IS OR WILL BE CALLED TO TESTIFY IN A CRIMINAL PROCEEDING, OTHER  THAN  A
 GRAND  JURY  PROCEEDING,  CONCERNING  AN  OFFENSE DEFINED IN ARTICLE ONE
 HUNDRED THIRTY OF THE PENAL LAW OR SECTION 255.25, 255.26 OR  255.27  OF
 SUCH LAW WHICH IS THE SUBJECT OF SUCH CRIMINAL PROCEEDING.
   2.  "VULNERABLE SEXUAL ASSAULT WITNESS" MEANS A SEXUAL ASSAULT WITNESS
 WHOM A COURT HAS DECLARED TO BE VULNERABLE.
   3. "TESTIMONIAL ROOM" MEANS ANY ROOM,  SEPARATE  AND  APART  FROM  THE
 COURTROOM,  WHICH  IS  FURNISHED  COMFORTABLY  AND  LESS FORMALLY THAN A
 COURTROOM AND FROM WHICH THE TESTIMONY OF A  VULNERABLE  SEXUAL  ASSAULT
 WITNESS  CAN  BE  TRANSMITTED TO THE COURTROOM BY MEANS OF LIVE, TWO-WAY
 CLOSED-CIRCUIT TELEVISION.
   4. "LIVE, TWO-WAY  CLOSED-CIRCUIT  TELEVISION"  MEANS  A  SIMULTANEOUS
 TRANSMISSION,  BY  CLOSED-CIRCUIT TELEVISION, OR OTHER ELECTRONIC MEANS,
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD15417-02-4
 S. 9564                             2
 
 BETWEEN THE COURTROOM AND THE TESTIMONIAL ROOM IN  ACCORDANCE  WITH  THE
 PROVISIONS OF SECTION 67.30 OF THIS ARTICLE.
   5.  "OPERATOR" MEANS THE INDIVIDUAL AUTHORIZED BY THE COURT TO OPERATE
 THE CLOSED-CIRCUIT TELEVISION EQUIPMENT  USED  IN  ACCORDANCE  WITH  THE
 PROVISIONS OF THIS ARTICLE.
   6. "A POSITION OF AUTHORITY WITH RESPECT TO A WITNESS" MEANS WHEN SUCH
 PERSON IS A PARENT, GUARDIAN OR OTHER PERSON RESPONSIBLE FOR THE CUSTODY
 OR CARE OF SUCH WITNESS AT THE RELEVANT TIME.
   7. "SUPPORT PERSON" MEANS A PARENT, GUARDIAN, SPOUSE, OR FAMILY MEMBER
 WHO  IS  NOT  THE  DEFENDANT  IN  THE PENDING CRIMINAL ACTION. A SUPPORT
 PERSON SHALL ALSO INCLUDE A SEXUAL ASSAULT WITNESS'S  THERAPIST,  ATTOR-
 NEY,  OR  AN  ADVOCATE  ASSOCIATED WITH PROGRAMS ENROLLED IN THE STATE'S
 VICTIM ADVOCACY PROGRAM.
 § 67.10 CLOSED-CIRCUIT TELEVISION; GENERAL RULE; DECLARATION OF  VULNER-
           ABILITY.
   1.  A  SEXUAL  ASSAULT  WITNESS  SHALL BE DECLARED VULNERABLE WHEN THE
 COURT, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 67.20 OF THIS  ARTI-
 CLE,  DETERMINES BY CLEAR AND CONVINCING EVIDENCE THAT IT IS LIKELY THAT
 SUCH SEXUAL ASSAULT WITNESS WILL SUFFER SERIOUS MENTAL OR EMOTIONAL HARM
 IF REQUIRED TO TESTIFY AT A CRIMINAL PROCEEDING WITHOUT THE USE OF LIVE,
 TWO-WAY CLOSED-CIRCUIT TELEVISION AND THAT THE USE OF SUCH LIVE, TWO-WAY
 CLOSED-CIRCUIT TELEVISION WILL DIMINISH THE LIKELIHOOD OR EXTENT OF SUCH
 HARM.
   2. WHEN THE COURT DECLARES A SEXUAL ASSAULT WITNESS TO BE  VULNERABLE,
 IT  SHALL,  EXCEPT  AS  PROVIDED IN SUBDIVISION FOUR OF SECTION 67.30 OF
 THIS ARTICLE, AUTHORIZE THE TAKING OF THE TESTIMONY  OF  THE  VULNERABLE
 SEXUAL  ASSAULT WITNESS FROM THE TESTIMONIAL ROOM BY MEANS OF LIVE, TWO-
 WAY  CLOSED-CIRCUIT  TELEVISION.  UNDER  NO  CIRCUMSTANCES   SHALL   THE
 PROVISIONS  OF  THIS  ARTICLE BE CONSTRUED TO AUTHORIZE A CLOSED-CIRCUIT
 TELEVISION SYSTEM BY WHICH EVENTS IN THE COURTROOM ARE  NOT  TRANSMITTED
 TO  THE  TESTIMONIAL  ROOM DURING THE TESTIMONY OF THE VULNERABLE SEXUAL
 ASSAULT WITNESS.
   3. WHEN A COURT DECLARES A SEXUAL ASSAULT WITNESS TO BE VULNERABLE, IT
 SHALL ALLOW SUCH SEXUAL ASSAULT WITNESS TO HAVE A SUPPORT PERSON  AVAIL-
 ABLE  TO  THEM  IN  THE TESTIMONIAL ROOM. IF SUCH SEXUAL ASSAULT WITNESS
 DOES NOT HAVE A SUPPORT PERSON READILY  AVAILABLE  TO  THEM,  THE  COURT
 SHALL PROVIDE A VICTIM ADVOCATE FOR THE SEXUAL ASSAULT WITNESS.
   4.  NOTHING HEREIN SHALL BE CONSTRUED TO PRECLUDE THE COURT FROM EXER-
 CISING ITS POWER TO CLOSE THE COURTROOM OR FROM EXERCISING ANY AUTHORITY
 IT OTHERWISE MAY HAVE TO PROTECT THE WELL-BEING OF  A  WITNESS  AND  THE
 RIGHTS OF THE DEFENDANT.
 § 67.20 CLOSED-CIRCUIT TELEVISION; PROCEDURE FOR APPLICATION AND GROUNDS
           FOR DETERMINATION.
   1.  PRIOR  TO  THE COMMENCEMENT OF A CRIMINAL PROCEEDING, OTHER THAN A
 GRAND JURY PROCEEDING, EITHER PARTY MAY APPLY TO THE COURT FOR AN  ORDER
 DECLARING THAT A SEXUAL ASSAULT WITNESS IS VULNERABLE.
   2.  A  SEXUAL  ASSAULT  WITNESS SHOULD BE DECLARED VULNERABLE WHEN THE
 COURT, IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION, DETERMINES  BY
 CLEAR  AND  CONVINCING  EVIDENCE  THAT  THE SEXUAL ASSAULT WITNESS WOULD
 SUFFER SERIOUS MENTAL OR EMOTIONAL HARM THAT WOULD SUBSTANTIALLY  IMPAIR
 THE  SEXUAL  ASSAULT  WITNESS' ABILITY TO COMMUNICATE WITH THE FINDER OF
 FACT WITHOUT THE USE OF LIVE, TWO-WAY CLOSED-CIRCUIT TELEVISION.
   3. A MOTION PURSUANT TO SUBDIVISION ONE OF THIS SECTION MUST  BE  MADE
 IN WRITING AT LEAST EIGHT DAYS BEFORE THE COMMENCEMENT OF TRIAL OR OTHER
 CRIMINAL  PROCEEDING  UPON REASONABLE NOTICE TO THE OTHER PARTY AND WITH
 AN OPPORTUNITY TO BE HEARD.
 S. 9564                             3
 
   4. THE MOTION PAPERS MUST STATE THE BASIS  FOR  THE  MOTION  AND  MUST
 CONTAIN SWORN ALLEGATIONS OF FACT WHICH, IF TRUE, WOULD SUPPORT A DETER-
 MINATION  BY  THE  COURT  THAT THE SEXUAL ASSAULT WITNESS IS VULNERABLE.
 SUCH ALLEGATIONS MAY BE BASED UPON THE PERSONAL KNOWLEDGE OF  THE  DEPO-
 NENT OR UPON INFORMATION AND BELIEF, PROVIDED THAT, IN THE LATTER EVENT,
 THE  SOURCES  OF  SUCH  INFORMATION  AND THE GROUNDS FOR SUCH BELIEF ARE
 STATED.
   5. THE ANSWERING PAPERS MAY ADMIT OR DENY ANY OF THE ALLEGED FACTS AND
 MAY, IN ADDITION, CONTAIN SWORN ALLEGATIONS  OF  FACT  RELEVANT  TO  THE
 MOTION,  INCLUDING  THE RIGHTS OF THE DEFENDANT, THE NEED TO PROTECT THE
 SEXUAL ASSAULT WITNESS AND THE INTEGRITY OF THE  TRUTH-FINDING  FUNCTION
 OF THE TRIER OF FACT.
   6.  UNLESS  ALL  MATERIAL  FACTS ALLEGED IN SUPPORT OF THE MOTION MADE
 PURSUANT TO SUBDIVISION ONE OF THIS  SECTION  ARE  CONCEDED,  THE  COURT
 SHALL,  IN  ADDITION  TO EXAMINING THE PAPERS AND HEARING ORAL ARGUMENT,
 CONDUCT AN APPROPRIATE HEARING FOR THE PURPOSE  OF  MAKING  FINDINGS  OF
 FACT ESSENTIAL TO THE DETERMINATION OF THE MOTION. EXCEPT AS PROVIDED IN
 THIS  SUBDIVISION,  IT  MAY  SUBPOENA OR CALL AND EXAMINE WITNESSES, WHO
 MUST EITHER TESTIFY UNDER OATH OR BE PERMITTED TO GIVE UNSWORN TESTIMONY
 PURSUANT TO SUBDIVISION TWO OF  THIS  SECTION  AND  MUST  AUTHORIZE  THE
 ATTORNEYS FOR THE PARTIES TO DO THE SAME.
   7.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF LAW, THE SEXUAL ASSAULT
 WITNESS WHO IS ALLEGED TO BE VULNERABLE MAY NOT BE COMPELLED TO  TESTIFY
 AT  SUCH  HEARING OR TO SUBMIT TO ANY PSYCHOLOGICAL OR PSYCHIATRIC EXAM-
 INATION.  THE FAILURE OF THE SEXUAL ASSAULT WITNESS TO TESTIFY  AT  SUCH
 HEARING  SHALL  NOT  BE  A  GROUND FOR DENYING A MOTION MADE PURSUANT TO
 SUBDIVISION ONE OF THIS SECTION. PRIOR STATEMENTS  MADE  BY  THE  SEXUAL
 ASSAULT  WITNESS  RELATING TO ANY ALLEGATIONS OF CONDUCT CONSTITUTING AN
 OFFENSE DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW OR INCEST
 AS DEFINED IN SECTION 255.25, 255.26 OR 255.27 OF SUCH  LAW  OR  TO  ANY
 ALLEGATION  OF  WORDS  OR  CONDUCT  CONSTITUTING  AN ATTEMPT TO PREVENT,
 IMPEDE OR DETER THE SEXUAL  ASSAULT  WITNESS  FROM  COOPERATING  IN  THE
 INVESTIGATION  OR PROSECUTION OF THE OFFENSE SHALL BE ADMISSIBLE AT SUCH
 HEARING, PROVIDED, HOWEVER, THAT A DECLARATION  THAT  A  SEXUAL  ASSAULT
 WITNESS  IS  VULNERABLE  MAY  NOT BE BASED SOLELY UPON SUCH PRIOR STATE-
 MENTS.
   8. (A) NOTWITHSTANDING ANY OF THE PROVISIONS OF ARTICLE FORTY-FIVE  OF
 THE  CIVIL PRACTICE LAW AND RULES, ANY PHYSICIAN, PSYCHOLOGIST, NURSE OR
 SOCIAL WORKER WHO HAS TREATED A SEXUAL ASSAULT WITNESS MAY TESTIFY AT  A
 HEARING  CONDUCTED PURSUANT TO SUBDIVISION FIVE OF THIS SECTION CONCERN-
 ING THE TREATMENT OF SUCH  SEXUAL  ASSAULT  WITNESS  AS  SUCH  TREATMENT
 RELATES  TO THE ISSUE PRESENTED AT THE HEARING, PROVIDED THAT ANY OTHER-
 WISE APPLICABLE STATUTORY PRIVILEGES CONCERNING  COMMUNICATIONS  BETWEEN
 THE  SEXUAL  ASSAULT  WITNESS AND SUCH PHYSICIAN, PSYCHOLOGIST, NURSE OR
 SOCIAL WORKER IN CONNECTION WITH SUCH  TREATMENT  SHALL  NOT  BE  DEEMED
 WAIVED  BY SUCH TESTIMONY ALONE, EXCEPT TO THE LIMITED EXTENT OF PERMIT-
 TING THE COURT ALONE TO EXAMINE IN CAMERA REPORTS, RECORDS OR DOCUMENTS,
 IF ANY, PREPARED BY SUCH PHYSICIAN, PSYCHOLOGIST, NURSE OR SOCIAL  WORK-
 ER.  IF  UPON  SUCH  EXAMINATION THE COURT DETERMINES THAT SUCH REPORTS,
 RECORDS OR DOCUMENTS, OR ANY ONE OR PORTION THEREOF, CONTAIN INFORMATION
 MATERIAL AND RELEVANT TO THE ISSUE OF WHETHER THE SEXUAL ASSAULT WITNESS
 IS A SEXUAL ASSAULT WITNESS, THE COURT SHALL DISCLOSE  SUCH  INFORMATION
 TO BOTH THE ATTORNEY FOR THE DEFENDANT AND THE DISTRICT ATTORNEY.
   (B)  AT  ANY TIME AFTER A MOTION HAS BEEN MADE PURSUANT TO SUBDIVISION
 ONE OF THIS SECTION, UPON THE DEMAND OF THE OTHER PARTY THE MOVING PARTY
 MUST FURNISH THE DEMANDING PARTY WITH A COPY OF  ANY  AND  ALL  OF  SUCH
 S. 9564                             4
 
 RECORDS,  REPORTS  OR  OTHER  DOCUMENTS  IN THE POSSESSION OF SUCH OTHER
 PARTY AND MUST, IN ADDITION, SUPPLY THE COURT WITH A COPY  OF  ALL  SUCH
 REPORTS, RECORDS OR OTHER DOCUMENTS WHICH ARE THE SUBJECT OF THE DEMAND.
 AT ANY TIME AFTER A DEMAND HAS BEEN MADE PURSUANT TO THIS PARAGRAPH, THE
 MOVING  PARTY  MAY DEMAND THAT PROPERTY OF THE SAME KIND OR CHARACTER IN
 POSSESSION OF THE PARTY THAT ORIGINALLY MADE SUCH DEMAND BE FURNISHED TO
 THE MOVING PARTY AND, IF SO FURNISHED, BE SUPPLIED, IN ADDITION, TO  THE
 COURT.
   9.  (A) PRIOR TO THE COMMENCEMENT OF THE HEARING CONDUCTED PURSUANT TO
 SUBDIVISION SIX OF THIS SECTION, THE DISTRICT ATTORNEY SHALL, SUBJECT TO
 A PROTECTIVE ORDER, COMPLY WITH THE PROVISIONS  OF  SUBDIVISION  ONE  OF
 SECTION  245.20  OF  THIS  CHAPTER  AS THEY CONCERN ANY WITNESS WHOM THE
 DISTRICT ATTORNEY INTENDS TO CALL AT THE HEARING AND THE SEXUAL  ASSAULT
 WITNESS.
   (B) BEFORE A DEFENDANT CALLS A WITNESS AT SUCH HEARING, SUCH DEFENDANT
 MUST,  SUBJECT  TO  A  PROTECTIVE  ORDER,  COMPLY WITH THE PROVISIONS OF
 SUBDIVISION FOUR OF SECTION 245.20 OF THIS CHAPTER AS THEY  CONCERN  ALL
 THE WITNESSES THE DEFENDANT INTENDS TO CALL AT SUCH HEARING.
   10.  THE  COURT MAY CONSIDER, IN DETERMINING WHETHER THERE ARE FACTORS
 WHICH WOULD CAUSE THE SEXUAL ASSAULT WITNESS TO SUFFER SERIOUS MENTAL OR
 EMOTIONAL HARM, A FINDING THAT ANY ONE OR MORE OF THE FOLLOWING  CIRCUM-
 STANCES HAVE BEEN ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE:
   (A) THE MANNER OF THE COMMISSION OF THE OFFENSE OF WHICH THE DEFENDANT
 IS  ACCUSED WAS PARTICULARLY HEINOUS OR WAS CHARACTERIZED BY AGGRAVATING
 CIRCUMSTANCES.
   (B) THE SEXUAL ASSAULT WITNESS  IS  PARTICULARLY  YOUNG  OR  OTHERWISE
 PARTICULARLY  SUBJECT  TO PSYCHOLOGICAL HARM ON ACCOUNT OF A PHYSICAL OR
 MENTAL CONDITION WHICH EXISTED BEFORE  THE  ALLEGED  COMMISSION  OF  THE
 OFFENSE.
   (C) AT THE TIME OF THE ALLEGED OFFENSE, THE DEFENDANT OCCUPIED A POSI-
 TION OF AUTHORITY WITH RESPECT TO THE SEXUAL ASSAULT WITNESS.
   (D)  THE OFFENSE OR OFFENSES CHARGED WERE PART OF AN ONGOING COURSE OF
 CONDUCT COMMITTED BY THE DEFENDANT AGAINST THE  SEXUAL  ASSAULT  WITNESS
 OVER AN EXTENDED PERIOD OF TIME.
   (E)  A DEADLY WEAPON OR DANGEROUS INSTRUMENT WAS ALLEGEDLY USED DURING
 THE COMMISSION OF THE CRIME.
   (F) THE DEFENDANT HAS INFLICTED SERIOUS PHYSICAL INJURY UPON THE SEXU-
 AL ASSAULT WITNESS.
   (G) A THREAT, EXPRESS OR IMPLIED, OF PHYSICAL VIOLENCE TO  THE  SEXUAL
 ASSAULT  WITNESS OR A THIRD PERSON IF THE SEXUAL ASSAULT WITNESS WERE TO
 REPORT THE INCIDENT TO ANY PERSON OR COMMUNICATE INFORMATION TO OR COOP-
 ERATE WITH A COURT, GRAND JURY,  PROSECUTOR,  POLICE  OFFICER  OR  PEACE
 OFFICER  CONCERNING  THE  INCIDENT  HAS BEEN MADE BY OR ON BEHALF OF THE
 DEFENDANT.
   (H) A THREAT, EXPRESS OR IMPLIED, OF THE INCARCERATION OF A PARENT  OR
 GUARDIAN  OF  THE  SEXUAL  ASSAULT  WITNESS,  THE  REMOVAL OF THE SEXUAL
 ASSAULT WITNESS FROM THE FAMILY OR THE DISSOLUTION OF THE FAMILY OF  THE
 SEXUAL  ASSAULT WITNESS IF THE SEXUAL ASSAULT WITNESS WERE TO REPORT THE
 INCIDENT TO ANY PERSON OR COMMUNICATE INFORMATION TO OR COOPERATE WITH A
 COURT, GRAND JURY, PROSECUTOR, POLICE OFFICER OR PEACE OFFICER  CONCERN-
 ING THE INCIDENT HAS BEEN MADE BY OR ON BEHALF OF THE DEFENDANT.
   (I)  A  WITNESS  OTHER  THAN THE SEXUAL ASSAULT WITNESS HAS RECEIVED A
 THREAT OF PHYSICAL VIOLENCE DIRECTED AT  SUCH  WITNESS  OR  TO  A  THIRD
 PERSON BY OR ON BEHALF OF THE DEFENDANT.
   (J)  THE  DEFENDANT,  AT THE TIME OF THE INQUIRY, (I) IS LIVING IN THE
 SAME HOUSEHOLD WITH THE SEXUAL ASSAULT WITNESS, (II) HAS READY ACCESS TO
 S. 9564                             5
 
 THE SEXUAL ASSAULT WITNESS OR (III) IS PROVIDING  SUBSTANTIAL  FINANCIAL
 SUPPORT FOR THE SEXUAL ASSAULT WITNESS.
   (K)  THE  SEXUAL  ASSAULT WITNESS HAS PREVIOUSLY BEEN THE VICTIM OF AN
 OFFENSE DEFINED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW OR INCEST
 AS DEFINED IN SECTION 255.25, 255.26 OR 255.27 OF SUCH LAW.
   (L) ACCORDING TO EXPERT TESTIMONY, THE SEXUAL ASSAULT WITNESS WOULD BE
 PARTICULARLY SUSCEPTIBLE TO PSYCHOLOGICAL HARM IF REQUIRED TO TESTIFY IN
 OPEN COURT OR IN THE PHYSICAL PRESENCE OF THE DEFENDANT.
   11. IRRESPECTIVE OF WHETHER A MOTION WAS MADE PURSUANT TO  SUBDIVISION
 ONE OF THIS SECTION, THE COURT, AT THE REQUEST OF EITHER PARTY OR ON ITS
 OWN  MOTION,  MAY DECIDE THAT A SEXUAL ASSAULT WITNESS MAY BE VULNERABLE
 BASED ON ITS OWN OBSERVATIONS THAT A SEXUAL ASSAULT WITNESS WHO HAS BEEN
 CALLED TO TESTIFY AT A CRIMINAL PROCEEDING IS SUFFERING SEVERE MENTAL OR
 EMOTIONAL HARM AND THEREFORE IS PHYSICALLY OR MENTALLY UNABLE TO TESTIFY
 OR TO CONTINUE TO TESTIFY IN OPEN COURT OR IN THE PHYSICAL  PRESENCE  OF
 THE  DEFENDANT  AND  THAT  THE USE OF LIVE, TWO-WAY CLOSED-CIRCUIT TELE-
 VISION IS NECESSARY TO ENABLE THE SEXUAL ASSAULT WITNESS TO TESTIFY.  IF
 THE  COURT SO DECIDES, IT MUST CONDUCT THE SAME HEARING THAT SUBDIVISION
 SIX OF THIS SECTION REQUIRES WHEN A MOTION IS MADE PURSUANT TO  SUBDIVI-
 SION  ONE OF THIS SECTION, AND IT MUST MAKE FINDINGS OF FACT PURSUANT TO
 SUBDIVISION TEN OF THIS SECTION,  BEFORE  DETERMINING  THAT  THE  SEXUAL
 ASSAULT WITNESS IS VULNERABLE.
   12.  IN  DECIDING  WHETHER A SEXUAL ASSAULT WITNESS IS VULNERABLE, THE
 COURT SHALL MAKE FINDINGS OF FACT WHICH REFLECT THE CAUSAL  RELATIONSHIP
 BETWEEN  THE  EXISTENCE  OF  ANY ONE OR MORE OF THE FACTORS SET FORTH IN
 SUBDIVISION TEN OF THIS SECTION OR  OTHER  RELEVANT  FACTORS  WHICH  THE
 COURT  FINDS  ARE  ESTABLISHED  AND  THE  DETERMINATION  THAT THE SEXUAL
 ASSAULT WITNESS IS VULNERABLE. IF THE COURT IS SATISFIED THAT THE SEXUAL
 ASSAULT WITNESS IS VULNERABLE AND THAT,  UNDER  THE  FACTS  AND  CIRCUM-
 STANCES OF THE PARTICULAR CASE, THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO
 AN IMPARTIAL JURY OR OF CONFRONTATION WILL NOT BE IMPAIRED, IT MAY ENTER
 AN  ORDER  GRANTING THE APPLICATION FOR THE USE OF LIVE, TWO-WAY CLOSED-
 CIRCUIT TELEVISION.
   13. WHEN THE COURT HAS DETERMINED THAT A SEXUAL ASSAULT WITNESS  IS  A
 VULNERABLE  SEXUAL  ASSAULT WITNESS, IT SHALL MAKE A SPECIFIC FINDING AS
 TO WHETHER PLACING THE DEFENDANT AND THE SEXUAL ASSAULT WITNESS  IN  THE
 SAME  ROOM  DURING  THE  TESTIMONY  OF  THE  SEXUAL ASSAULT WITNESS WILL
 CONTRIBUTE TO THE LIKELIHOOD THAT THE SEXUAL ASSAULT WITNESS WILL SUFFER
 SEVERE MENTAL OR EMOTIONAL HARM. IF THE COURT  FINDS  THAT  PLACING  THE
 DEFENDANT  AND  THE  SEXUAL  ASSAULT WITNESS IN THE SAME ROOM DURING THE
 TESTIMONY OF THE SEXUAL ASSAULT WITNESS WILL CONTRIBUTE TO  THE  LIKELI-
 HOOD  THAT  THE  SEXUAL  ASSAULT  WITNESS  WILL  SUFFER SEVERE MENTAL OR
 EMOTIONAL HARM, THE ORDER ENTERED PURSUANT TO SUBDIVISION TWELVE OF THIS
 SECTION SHALL DIRECT THAT THE DEFENDANT REMAIN IN THE  COURTROOM  DURING
 THE TESTIMONY OF THE VULNERABLE SEXUAL ASSAULT WITNESS.
 § 67.30 CLOSED-CIRCUIT TELEVISION; SPECIAL TESTIMONIAL PROCEDURE.
   1.  WHEN  THE  COURT HAS ENTERED AN ORDER PURSUANT TO SECTION 67.20 OF
 THIS ARTICLE, THE TESTIMONY OF THE  VULNERABLE  SEXUAL  ASSAULT  WITNESS
 SHALL  BE  TAKEN  IN THE TESTIMONIAL ROOM AND THE IMAGE AND VOICE OF THE
 VULNERABLE SEXUAL ASSAULT WITNESS, AS WELL AS THE  IMAGE  OF  ALL  OTHER
 PERSONS  OTHER  THAN THE OPERATOR PRESENT IN THE TESTIMONIAL ROOM, SHALL
 BE TRANSMITTED LIVE BY MEANS OF CLOSED-CIRCUIT TELEVISION TO THE  COURT-
 ROOM. THE COURTROOM SHALL BE EQUIPPED WITH MONITORS SUFFICIENT TO PERMIT
 THE  JUDGE, JURY, DEFENDANT AND ATTORNEYS TO OBSERVE THE DEMEANOR OF THE
 VULNERABLE SEXUAL ASSAULT  WITNESS  DURING  SUCH  WITNESSES'  TESTIMONY.
 UNLESS THE COURTROOM HAS BEEN CLOSED PURSUANT TO COURT ORDER, THE PUBLIC
 S. 9564                             6
 
 SHALL  ALSO BE PERMITTED TO HEAR THE TESTIMONY AND VIEW THE IMAGE OF THE
 VULNERABLE SEXUAL ASSAULT WITNESS.
   2.  IN  ALL  INSTANCES,  THE IMAGE OF THE JURY SHALL BE SIMULTANEOUSLY
 TRANSMITTED TO THE VULNERABLE SEXUAL ASSAULT WITNESS IN THE  TESTIMONIAL
 ROOM.  IF THE COURT ORDER ISSUED PURSUANT TO SECTION 67.20 OF THIS ARTI-
 CLE SPECIFIES THAT THE VULNERABLE SEXUAL ASSAULT WITNESS  SHALL  TESTIFY
 OUTSIDE THE PHYSICAL PRESENCE OF THE DEFENDANT, THE IMAGE OF THE DEFEND-
 ANT AND THE IMAGE AND VOICE OF THE PERSON EXAMINING THE VULNERABLE SEXU-
 AL  ASSAULT  WITNESS  SHALL  ALSO  BE  SIMULTANEOUSLY TRANSMITTED TO THE
 VULNERABLE SEXUAL ASSAULT WITNESS IN THE TESTIMONIAL ROOM.
   3. THE OPERATOR SHALL PLACE SUCH OPERATOR AND THE CLOSED-CIRCUIT TELE-
 VISION EQUIPMENT IN A POSITION THAT PERMITS THE ENTIRE TESTIMONY OF  THE
 VULNERABLE SEXUAL ASSAULT WITNESS TO BE TRANSMITTED TO THE COURTROOM BUT
 LIMITS  THE  ABILITY  OF THE VULNERABLE SEXUAL ASSAULT WITNESS TO SEE OR
 HEAR THE OPERATOR OR THE EQUIPMENT.
   4. NOTWITHSTANDING ANY PROVISION OF THIS ARTICLE, IF THE  COURT  IN  A
 PARTICULAR CASE INVOLVING A VULNERABLE SEXUAL ASSAULT WITNESS DETERMINES
 THAT  THERE  IS  NO  LIVE,  TWO-WAY  CLOSED-CIRCUIT TELEVISION EQUIPMENT
 AVAILABLE IN THE COURT OR ANOTHER COURT IN THE COUNTY OR  WHICH  CAN  BE
 TRANSPORTED  TO THE COURT FROM ANOTHER COUNTY OR THAT SUCH EQUIPMENT, IF
 AVAILABLE, IS TECHNOLOGICALLY INADEQUATE TO PROTECT  THE  CONSTITUTIONAL
 RIGHTS  OF THE DEFENDANT, IT SHALL NOT PERMIT THE USE OF THE CLOSED-CIR-
 CUIT TELEVISION PROCEDURES AUTHORIZED BY THIS ARTICLE.
   5. IF THE ORDER OF THE COURT ENTERED PURSUANT TO SECTION 67.20 OF THIS
 ARTICLE REQUIRES THAT THE DEFENDANT REMAIN IN THE COURTROOM, THE  ATTOR-
 NEY FOR THE DEFENDANT AND THE DISTRICT ATTORNEY SHALL ALSO REMAIN IN THE
 COURTROOM  UNLESS  THE  COURT  IS  SATISFIED  THAT THEIR PRESENCE IN THE
 TESTIMONIAL ROOM WILL NOT IMPEDE FULL AND PRIVATE COMMUNICATION  BETWEEN
 THE  DEFENDANT  AND SUCH DEFENDANT'S ATTORNEY AND WILL NOT ENCOURAGE THE
 JURY TO DRAW AN INFERENCE ADVERSE TO THE INTEREST OF THE DEFENDANT.
   6. UPON REQUEST OF THE DEFENDANT, THE COURT SHALL  INSTRUCT  THE  JURY
 THAT THEY ARE TO DRAW NO INFERENCE FROM THE USE OF LIVE, TWO-WAY CLOSED-
 CIRCUIT  TELEVISION  IN THE EXAMINATION OF THE VULNERABLE SEXUAL ASSAULT
 WITNESS.
   7. THE VULNERABLE SEXUAL ASSAULT  WITNESS  SHALL  TESTIFY  UNDER  OATH
 EXCEPT  AS  SPECIFIED IN SUBDIVISION TWO OF SECTION 60.20 OF THIS TITLE.
 THE EXAMINATION AND CROSS-EXAMINATION OF THE VULNERABLE  SEXUAL  ASSAULT
 WITNESS SHALL, IN ALL OTHER RESPECTS, BE CONDUCTED IN THE SAME MANNER AS
 IF THE VULNERABLE SEXUAL ASSAULT WITNESS HAD TESTIFIED IN THE COURTROOM.
   8.  WHEN  THE  TESTIMONY  OF  THE VULNERABLE SEXUAL ASSAULT WITNESS IS
 TRANSMITTED FROM THE TESTIMONIAL ROOM  INTO  THE  COURTROOM,  THE  COURT
 STENOGRAPHER  SHALL  RECORD  THE  TESTIMONY IN THE SAME MANNER AS IF THE
 VULNERABLE SEXUAL ASSAULT WITNESS HAD TESTIFIED IN THE COURTROOM.
   § 2. This act shall take effect immediately.

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Senate Bill S9564

Sponsored By

Current Bill Status - In Senate Committee Codes Committee

2023-S9564 (ACTIVE) - Details

2023-S9564 (ACTIVE) - Summary

2023-S9564 (ACTIVE) - Sponsor Memo

2023-S9564 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S9564

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Sponsored By

Rachel May

Current Bill Status - In Senate Committee Codes Committee

2023-S9564 (ACTIVE) - Details

2023-S9564 (ACTIVE) - Summary

2023-S9564 (ACTIVE) - Sponsor Memo

2023-S9564 (ACTIVE) - Bill Text download pdf

Comments