S T A T E   O F   N E W   Y O R K
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                                  4686

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 5, 2009
                               ___________

Introduced by M. of A. V. LOPEZ -- read once and referred to the Commit-
  tee on Codes

AN ACT to amend the criminal procedure law, in relation to admissibility
  of  certain  out-of-court statements by a child less than twelve years
  old

  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
section 60.47 to read as follows:
S 60.47 RULES OF EVIDENCE; ADMISSIBILITY OF CERTAIN OUT-OF-COURT  STATE-
          MENTS OF CHILDREN LESS THAN TWELVE YEARS OLD.
  THE COURT MAY DETERMINE THAT A STATEMENT OF THE COMPLAINING WITNESS IS
NOT  MADE INADMISSIBLE BY THE HEARSAY RULE IF THE COURT FINDS ALL OF THE
FOLLOWING:
  1. THE STATEMENT WAS MADE BY A CHILD LESS THAN TWELVE YEARS  OLD,  AND
THE  CONTENTS  OF  THE  STATEMENT WERE INCLUDED IN A WRITTEN REPORT OF A
LOCAL OR STATE LAW ENFORCEMENT OFFICIAL OR OF AN  EMPLOYEE  OF  A  LOCAL
DEPARTMENT  OF  SOCIAL  SERVICES OR OF THE OFFICE OF CHILDREN AND FAMILY
SERVICES.
  2. THE STATEMENT DESCRIBES THE MINOR  CHILD  AS  A  VICTIM  OF  A  SEX
OFFENSE INCLUDED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW.
  3. THE STATEMENT SHOWED SPONTANEITY AND A CONSISTENT REPETITION OF THE
FACTS,  WAS  STATED  IN  THE  TERMINOLOGY CONSISTENT WITH THE AGE OF THE
CHILD, AND WAS REFLECTIVE OF THE MENTAL STATE OF THE CHILD.
  4. THE STATEMENT WAS MADE BY A CHILD WHO HAD NO  MOTIVE  TO  FABRICATE
SUCH  STATEMENT.  THE  COURT  SHALL VIEW WITH CAUTION THE TESTIMONY OF A
PERSON RECOUNTING HEARSAY WHERE THERE IS EVIDENCE OF  PERSONAL  BIAS  OR
PREJUDICE.
  5. THE CHILD IS FOUND TO BE UNAVAILABLE OR REFUSES TO TESTIFY.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04442-01-9