senate Bill S7375A

Relates to disqualification of employment for criminal history and the definition of ability to consent; provides hearsay exception for developmentally disabled

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 02 / May / 2012
    • REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES
  • 15 / May / 2012
    • AMEND (T) AND RECOMMIT TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES
  • 15 / May / 2012
    • PRINT NUMBER 7375A
  • 30 / May / 2012
    • 1ST REPORT CAL.962
  • 31 / May / 2012
    • 2ND REPORT CAL.
  • 04 / Jun / 2012
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2012
    • COMMITTED TO RULES

Summary

Provides an exception to the hearsay rule to allow testimony from persons with developmental disabilities.

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Bill Details

See Assembly Version of this Bill:
A10285
Versions:
S7375
S7375A
Legislative Cycle:
2011-2012
Current Committee:
Senate Rules
Law Section:
Criminal Procedure Law
Laws Affected:
Add ยง60.77, CP L

Votes

8
1
8
Aye
1
Nay
1
aye with reservations
0
absent
0
excused
0
abstained
show Mental Health and Developmental Disabilities committee vote details

Sponsor Memo

BILL NUMBER:S7375A

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to providing an
exception to the hearsay rule to allow testimony from persons with
developmental disabilities

PURPOSE:
Establishes the exception to hearsay rule for persons with
Developmental Disabilities.

SUMMARY OF PROVISIONS:
This Bill creates a statutory exception to the "hearsay rule" to allow
an otherwise inadmissible statement made by a victim with
developmental disabilities to be used in court if deemed reliable
by a judge.

JUSTIFICATION:
Research shows that 80 percent of developmentally disabled women and
32 percent of developmentally disabled men have been the victims of
sexual assault, however, less than one percent of prosecuted sexual
assault cases involve developmentally disabled victims. These cases
are often not prosecuted because individuals with developmental
disabilities have a perceived lack of credibility and can have
severely limited mean of communications. By allowing the
developmentally disabled to provide statements to those close to them
or in the communicative means most comfortable to them they are able
to provide effective testimony.

This legislation also provides protections for the accused by
mandating detailed jury instructions and corroborating evidence at
trial. Seven other states have enacted similar legislation.

This legislation is critical to strengthen protections for our
vulnerable populations and hold the guilty accountable.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
To be determined.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7375--A

                            I N  S E N A T E

                               May 2, 2012
                               ___________

Introduced  by Sen. McDONALD -- read twice and ordered printed, and when
  printed to be committed to the Committee on Mental Health and Develop-
  mental Disabilities -- committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT to amend the criminal procedure law, in relation to providing an
  exception to the hearsay rule to allow  testimony  from  persons  with
  developmental disabilities

  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 60.77 to read as follows:
S  60.77  STATEMENTS OF PERSONS WITH DEVELOPMENTAL DISABILITIES; HEARSAY
          EXCEPTION.
  1. AN OUT-OF-COURT STATEMENT MADE BY A  PERSON  WITH  A  DEVELOPMENTAL
DISABILITY,  AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE
MENTAL HYGIENE LAW, NOT OTHERWISE ADMISSIBLE BY A STATUTE OR COURT  RULE
THAT  PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY IS ADMISSIBLE IN
ANY CRIMINAL OR DELINQUENCY PROCEEDING IN WHICH THE PERSON IS ALLEGED TO
HAVE BEEN A VICTIM IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION
ARE SATISFIED.
  2. (A) AN OUT-OF-COURT STATEMENT MADE BY A PERSON WITH A DEVELOPMENTAL
DISABILITY, AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF  THE
MENTAL  HYGIENE  LAW, THAT DESCRIBES ALL OR PART OF AN OFFENSE DESCRIBED
IN PARAGRAPH (B) OF THIS SUBDIVISION PERFORMED WITH, BY, ON, OR  IN  THE
PRESENCE  OF  THE  DECLARANT,  AND THAT IS NOT OTHERWISE ADMISSIBLE BY A
STATUTE OR COURT RULE THAT PROVIDES AN EXCEPTION  TO  THE  OBJECTION  OF
HEARSAY, IS ADMISSIBLE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING
IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE SATISFIED.
  (B)  THE  EXCEPTION  DESCRIBED  IN  PARAGRAPH  (A) OF THIS SUBDIVISION
APPLIES TO AN OUT-OF-COURT STATEMENT MADE BY A PERSON  WITH  A  DEVELOP-
MENTAL  DISABILITY,  WHICH STATEMENT DESCRIBES ALL OR PART OF ANY OF THE
FOLLOWING OFFENSES:
  (I) ANY OFFENSE DESCRIBED IN ARTICLE ONE HUNDRED THIRTY OF  THE  PENAL
LAW;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15718-03-2

S. 7375--A                          2

  (II)  LABOR  TRAFFICKING  AS  DESCRIBED IN SECTION 135.35 OF THE PENAL
LAW;
  (III)  AN  OFFENSE  INVOLVING  INCEST  AS DESCRIBED IN SECTION 255.25,
255.26 OR 255.27 OF THE PENAL LAW;
  (IV) SEX TRAFFICKING AS DESCRIBED IN SECTION 230.34 OF THE PENAL LAW;
  (V) ANY OFFENSE DESCRIBED IN ARTICLE TWO HUNDRED  THIRTY-FIVE  OF  THE
PENAL LAW;
  (VI)  CRIMINAL  ATTEMPT  TO  COMMIT  ANY OF THE ACTS SPECIFIED IN THIS
PARAGRAPH.
  3. AN OUT-OF-COURT STATEMENT BY A PERSON WITH A DEVELOPMENTAL DISABIL-
ITY, AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE  MENTAL
HYGIENE  LAW,  THAT  DESCRIBES  ANY ACT OF CHILD ABUSE, CHILD NEGLECT OR
CHILD MALTREATMENT TO WHICH THE DECLARANT WAS  SUBJECTED  OR  WHICH  THE
DECLARANT  WITNESSED,  AND THAT IS NOT OTHERWISE ADMISSIBLE BY A STATUTE
OR COURT RULE THAT PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY, IS
ADMISSIBLE IN EVIDENCE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING
IN WHICH A CHILD IS ALLEGED TO BE A VICTIM OF CHILD  ABUSE,  NEGLECT  OR
MALTREATMENT,  IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE
SATISFIED.
  4. AN OUT-OF-COURT STATEMENT MADE BY A  PERSON  WITH  A  DEVELOPMENTAL
DISABILITY,  AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE
MENTAL HYGIENE LAW, THAT DESCRIBES ALL OR PART OF AN  OFFENSE  CONTAINED
IN  ARTICLE  ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, OR THAT DESCRIBES
AN ACT OF DOMESTIC VIOLENCE AS DEFINED IN  SUBDIVISION  ONE  OF  SECTION
481-C OF THE SOCIAL SERVICES LAW, NOT OTHERWISE ADMISSIBLE BY STATUTE OR
COURT  RULE  THAT  PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY, IS
ADMISSIBLE IN EVIDENCE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING
IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE SATISFIED.
  5. THE EXCEPTIONS TO THE OBJECTION OF HEARSAY  DESCRIBED  IN  SUBDIVI-
SIONS  ONE,  TWO, THREE AND FOUR OF THIS SECTION SHALL APPLY ONLY IF THE
COURT FINDS IN A HEARING CONDUCTED OUTSIDE THE PRESENCE OF THE JURY THAT
THE TIME, CONTENT, AND CIRCUMSTANCES OF THE STATEMENT PROVIDE SUFFICIENT
SAFEGUARDS OF RELIABILITY; AND EITHER:
  (A) THE STATEMENT IS A NON-TESTIMONIAL STATEMENT; OR
  (B) (I) THE DECLARANT TESTIFIES AT THE PROCEEDINGS; OR
  (II) IF THE DECLARANT IS UNAVAILABLE TO TESTIFY, THE DEFENDANT HAS HAD
AN OPPORTUNITY TO CROSS-EXAMINE THE DECLARANT IN A  PREVIOUS  PROCEEDING
AND  THERE  IS CORROBORATIVE EVIDENCE OF THE ACT WHICH IS THE SUBJECT OF
THE STATEMENT.
  6. IF A STATEMENT IS ADMITTED PURSUANT  TO  THIS  SECTION,  THE  COURT
SHALL  INSTRUCT  THE  JURY IN THE FINAL WRITTEN INSTRUCTIONS THAT DURING
THE PROCEEDING THE JURY HEARD EVIDENCE REPEATING A PERSON'S OUT-OF-COURT
STATEMENT, THAT IT IS FOR THE JURY TO DETERMINE THE WEIGHT AND CREDIT TO
BE GIVEN THE STATEMENT, AND THAT, IN MAKING THE DETERMINATION, THE  JURY
SHALL  CONSIDER  THE  NATURE  OF  THE STATEMENT, THE CIRCUMSTANCES UNDER
WHICH THE STATEMENT WAS MADE, AND ANY OTHER RELEVANT FACTOR.
  7. THE PROPONENT OF THE STATEMENT SHALL GIVE THE ADVERSE PARTY REASON-
ABLE NOTICE OF HIS OR HER INTENTION  TO  OFFER  THE  STATEMENT  AND  THE
PARTICULARS OF THE STATEMENT.
  S 2. This act shall take effect immediately.

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