senate Bill S4484

Amended

Relates to identifications by witnesses and the recording of interrogations

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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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  • 03 / Apr / 2013
    • REFERRED TO CODES
  • 18 / Jun / 2013
    • AMEND (T) AND RECOMMIT TO CODES
  • 18 / Jun / 2013
    • PRINT NUMBER 4484A
  • 08 / Jan / 2014
    • REFERRED TO CODES

Summary

Relates to identifications by witnesses and providing for the video recording, videotaping or use of other appropriate video recording device of certain interrogations.

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Bill Details

See Assembly Version of this Bill:
A6800
Versions:
S4484
S4484A
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Criminal Procedure Law
Laws Affected:
Amd §§60.25, 60.30, 710.20, 710.30, 60.45 & 710.70, CP L; amd §§343.3, 343.4 & 344.2, Fam Ct Act

Sponsor Memo

BILL NUMBER:S4484

TITLE OF BILL: An act to amend the criminal procedure law and the
family court act, in relation to identifications by witnesses and the
video recording of interrogations

This measure is one in a series of proposals being introduced at the
request of the Chief Judge of the State, upon recommendation of the
New York State Justice Task Force, to enhance the accuracy of criminal
investigations. This measure proposes a series of important reforms
that include: (1) authorization for admission into evidence of
pretrial identifications of the defendant under certain controlled
circumstances; and (2) requirement that custodial interrogations of
suspects with respect to enumerated A-1 and class B violent felonies
be video recorded.

The Chief Judge commissioned the Justice Task Force in 2009 to
"eradicate the systemic and individual harms caused by wrongful
convictions, and to promote public safety by examining the causes of
wrongful convictions and recommending reforms to safeguard against any
such convictions in the future." Co-chaired by a Judge of the Court of
Appeals and the current President of the New York State District
Attorneys Association, with bipartisan representation from both Houses
of the Legislature, the Executive Branch, police agencies, the Bar,
appellate and trial judges, academicians and victim rights' advocates,
the Justice Task Force has worked to develop a balanced and practical
approach to identifying and redressing recurring practices that
contribute to wrongful convictions without intruding on
investigational and prosecutorial autonomy under our Constitution and
laws. Two of the Task Force's recommendations, calling for expansion
of the State's DNA Databank and providing criminal defendants with
greater access to post-conviction DNA testing, were enacted into law
last session. See L. 2012, c. 19. This measure is submitted to
implement two further Task Force recommendations.

Admission into evidence of pretrial identifications of the defendant

The Task Force found that mistaken eyewitness identification is a
leading cause of wrongful convictions. It is therefore essential to
redress the most likely triggers for mistaken identification, both to
enhance the accuracy of the criminal justice system, and to protect
public safety compatibly with the administration of justice. To that
end, the Task Force reached consensus on a number of best practices
relating to witness instruction, confidence statements, identification
procedures and live lineups.

Legislation is needed, however, to foster enhancement of the
reliability of witness identifications. Also, it is needed to permit
photo identifications - long barred from criminal trials under most
circumstances - to be admitted into evidence at trial.

Accordingly, the instant measure would effectuate the Justice Task
Force's recommendation that double-blind ("blind") administration of a
photo array (i.e. where the person administering the array does not
know who the accused is) sufficiently promotes the reliability of
identifications to admit such evidence at trial. The measure also
reflects the view, based on operational experience and academic


research, that where double-blind administration is impracticable,
single-blind ("blinded") administration of a photo array (i.e., where
the person administering the array knows who the accused is but does
not know where the accused's picture appears in the array) also can
sufficiently enhance the accuracy of identifications to justify
admissibility. Under either of these limited circumstances, strictly
defined in statute, a witness's identification of the accused in a
pictorial, photographic, electronic, filmed or video recorded
reproduction would become admissible at trial. This measure would
apply in both criminal courts and Family Court juvenile delinquency
proceedings, and where a public servant administers an array either by
hand or with the aid of computer software (e.g. Photo Manager) to
shuffle the array in a manner that is blind to the array administrator
at the time of the test.

The measure also builds on the Justice Task Force's recommendations by
requiring that, where a line-up identification is conducted, the
person administering the line-up (and communicating with a witness as
he or she makes an identification) be unaware of the identity of the
accused. An exception is provided for those instances where there is
no public servant available to administer the line-up who is unaware
of the accused's identity.

To achieve the foregoing, sections one and two of this measure would
make appropriate revisions in CPL 60.25 and CPL 60.30.

Section three would amend CPL 710.20(6) to authorize a motion to
suppress evidence of a lineup identification or an eyewitness
identification based on a pictorial, photographic, electronic, filmed
or video recorded reproduction of the defendant not made consistent
with the procedures outlined in this measure.

Section four would amend CPL 710.30(1) to require that where the
People intend to use evidence of an eyewitness identification based on
a pictorial, photographic, electronic, filmed or video recorded
reproduction of the defendant, the People must serve on the defendant
a notice of such intention (the provision already imposes this
requirement where the People intend to use evidence of a line-up
identification).

Sections five and six would amend Family Court Act sections 343.3 and
343.4, respectively, to authorize admission of image-assisted
identifications consistent with the corresponding amendments to CP
60.25 and 60.30 in sections one and two of the bill.

Recording of custodial interrogations

The Justice Task Force concluded that video recording of custodial
interrogations, which some prosecutors and police agencies now
undertake voluntarily, can substantially diminish the incidence of
wrongful convictions. The recording of a confession and its physical
circumstances helps vitiate reasonable questions as to the
voluntariness of the confession, strongly discouraging tactics that
could be perceived as unduly coercive.

In drawing this conclusion, the Task Force was well aware of the need
for operational practicality in enforcing any video-recording


requirement. The Task Force recognizes that implementing this change
for all interrogations could raise substantial questions about costs
and may have unintended consequences that impair the effective
operation of the criminal justice system. The Task Force also
recognizes that some custodial confessions occur under circumstances
in which it may be impractical to ensure a video recording, and that
disallowing admission of a freely-given confession under those
circumstances also would impair the effective administration of the
criminal justice system. Given the primary goal of promoting the
accuracy of convictions, an over-broad reform might do more harm than
good.

Reflecting these various considerations, the Justice Task Force
recommends a balanced approach by which the video-recording
requirement would apply only for confessions, admissions or other
statements relating to crimes constituting A-1. non-drug felonies, and
violent B felonies codified by Penal Law article 125 (homicide) or
article 130 (sex offenses), and only where the confessions, admissions
or other statements occur in a detention facility pursuant to a
custodial interrogation.

Also reflecting the overriding need for practicality given the
fast-paced and fluid environments in which confessions occur, the
Justice Task Force recommends a broad range of good-faith explanations
by which the People may justify not video recording a covered
confession. Where the People offer such a good-faith justification,
the failure to record would be excused and the confession would be
admissible notwithstanding the lack of a video recording. Such
good-faith justifications would include, but not be limited to:

*Malfunction or other inadvertent equipment error that prevents or
interrupts recording;

*Unavailability of the equipment because it was otherwise being used
at the time of the confession;

*Defendant's refusal to make a confession if recorded, or the
defendant's request that it not be recorded, if such refusal or
request is in writing signed by the defendant or otherwise
memorialized by him or her (unless he or she declines to sign such a
statement);

* The People's reasonable belief that such video recording would
jeopardize the safety of any person or reveal the identity of a
confidential informant; and

* The public servant having custody of the defendant reasonably
believe, at the time of the defendant's confession, that it would not
relate to the defendant's participation or lack of participation in an
offense to which the recording requirement would apply.

If the People fail to video record a covered confession without a
good-faith justification, the court still could admit the confession
into evidence, but the court would need to instruct the jury, at the
defendant's request, to weigh this failure as a factor in determining
the voluntariness of the confession.


To accomplish the foregoing balanced approach compatibly with
administering New York's large and diverse criminal justice system,
section seven of this measure would add a new subdivision 3 of CPL
60.45 to require the video recording of a defendant's confession,
admission or other statement, where the crime to which the defendant
confesses constitutes an A-1 non-drug felony, or a violent B felony
codified by Penal Law article 125 (homicide) or article 130 (sex
offenses). This requirement would apply only where, pursuant to
custodial interrogation, the defendant makes a confession, admission
or other statement in a proper detention facility (as defined in the
measure). This new subdivision would set forth a non-exclusive list of
good-faith justifications for the failure to video record a covered
confession.

Section eight of this measure would amend CPL 710.70 to provide that a
court could admit a covered confession despite the failure to video
record it without good-faith justification provided that, upon
defendant's request, the court would need to issue an appropriate
instruction that the jury could weigh the failure to record as a
factor in determining the voluntariness of the confession.

Section nine of this measure would renumber subdivision 3 of Family
Court Act section 344.2 to subdivision 4 and add a new subdivision 3
that parallels the video recording provision of CPL 60.45(3), as added
by section seven of this measure. This subdivision would apply where
any presentment agency seeks to admit evidence of a covered confession
made pursuant to custodial interrogation.

Section ten would make this act effective immediately except that the
provisions of sections seven through nine, relating to the recording
of a defendant's statements while in custody, shall take effect on the
first day of November in the year succeeding the year in which this
act shall have become a law.

Legislative history:

None. New proposal.

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

                                  4484

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              April 3, 2013
                               ___________

Introduced by Sen. NOZZOLIO -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee on Codes

AN ACT to amend the criminal procedure law and the family court act,  in
  relation  to  identifications  by witnesses and the video recording of
  interrogations

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section 60.25 of the criminal procedure law, subparagraph
(ii) of paragraph (a) of subdivision 1 as amended by chapter 479 of  the
laws of 1977, is amended to read as follows:
S 60.25 Rules  of evidence; identification by means of previous recogni-
          tion, in absence of present identification.
  1. In any criminal proceeding in which the defendant's  commission  of
an offense is in issue, testimony as provided in subdivision two OF THIS
SECTION may be given by a witness when:
  (a) Such witness testifies that:
  (i)  He  OR  SHE  observed  the person claimed by the people to be the
defendant either at the time and place of the commission of the  offense
or upon some other occasion relevant to the case; and
  (ii)  On a subsequent occasion he OR SHE observed, under circumstances
consistent with such rights as an accused person may  derive  under  the
constitution  of  this  state or of the United States AND PURSUANT TO AN
IDENTIFICATION PROCEDURE SET FORTH IN PARAGRAPH (C) OF THIS SUBDIVISION,
a person OR A  PICTORIAL,  PHOTOGRAPHIC,  ELECTRONIC,  FILMED  OR  VIDEO
RECORDED  REPRODUCTION OF A PERSON whom he OR SHE recognized as the same
person whom he OR SHE had observed on the first or  incriminating  occa-
sion; and
  (iii)  He OR SHE is unable at the proceeding to state, on the basis of
present recollection, whether or not the  defendant  is  the  person  in
question; and

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08982-01-3

S. 4484                             2

  (b)  It  is  established that the defendant is in fact the person whom
the witness observed and recognized OR  WHOSE  PICTORIAL,  PHOTOGRAPHIC,
ELECTRONIC,  FILMED  OR VIDEO RECORDED REPRODUCTION THE WITNESS OBSERVED
AND RECOGNIZED on the second occasion.  Such fact may be established  by
testimony  of  another  person  or  persons to whom the witness promptly
declared his OR HER recognition on such occasion AND BY SUCH  PICTORIAL,
PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION.
  (C) FOR PURPOSES OF THIS SECTION, AN "IDENTIFICATION PROCEDURE" MEANS:
  (I)  THE  WITNESS IDENTIFIES A PERSON AND, AT THE TIME THE IDENTIFICA-
TION IS MADE, EACH PUBLIC SERVANT ADMINISTERING SUCH PROCEDURE AND  WITH
WHOM  THE  WITNESS  COMMUNICATES DOES NOT KNOW WHO THE ACCUSED PERSON IS
UNLESS, AT SUCH TIME, THERE IS NO PUBLIC SERVANT AVAILABLE TO ADMINISTER
SUCH PROCEDURE WHO DOES NOT KNOW WHO THE ACCUSED PERSON IS; OR
  (II) THE WITNESS IDENTIFIES A PERSON IN AN ARRAY OF PICTORIAL,  PHOTO-
GRAPHIC,  ELECTRONIC,  FILMED  OR  VIDEO RECORDED REPRODUCTIONS AND SUCH
IDENTIFICATION IS MADE UNDER CIRCUMSTANCES WHERE: (1) AT  THE  TIME  THE
IDENTIFICATION  IS MADE, THE PUBLIC SERVANT ADMINISTERING SUCH PROCEDURE
DOES NOT KNOW WHICH PERSON IN THE ARRAY IS THE ACCUSED  PERSON  OR,  (2)
IF, AT SUCH TIME, IT IS IMPRACTICABLE FOR THE PUBLIC SERVANT NOT TO KNOW
WHO  THE  ACCUSED  PERSON IS, THE PUBLIC SERVANT DOES NOT KNOW WHERE THE
ACCUSED PERSON IS IN THE ARRAY VIEWED BY THE WITNESS.
  2. Under circumstances prescribed in subdivision one OF THIS  SECTION,
such witness may testify at the criminal proceeding that the person whom
he  OR  SHE  observed  and  recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED AND
RECOGNIZED on the second occasion is the same  person  whom  he  OR  SHE
observed  on  the  first  or  incriminating  occasion.   Such testimony,
together with the evidence that the defendant is in fact the person whom
the witness observed and recognized OR  WHOSE  PICTORIAL,  PHOTOGRAPHIC,
ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED AND
RECOGNIZED on the second occasion, constitutes evidence in chief.
  S  2. Section 60.30 of the criminal procedure law, as amended by chap-
ter 479 of the laws of 1977, is amended to read as follows:
S 60.30  Rules of evidence; identification by means of previous recogni-
          tion, in addition to present identification.
  In any criminal proceeding in which the defendant's commission  of  an
offense is in issue, a witness who testifies that (a) he OR SHE observed
the  person claimed by the people to be the defendant either at the time
and place of the commission of the offense or upon some  other  occasion
relevant  to the case, and (b) on the basis of present recollection, the
defendant is the person in question and (c) on a subsequent occasion  he
OR SHE observed the defendant, OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC,
FILMED  OR  VIDEO  RECORDED REPRODUCTION OF THE DEFENDANT, under circum-
stances consistent with such rights as  an  accused  person  may  derive
under  the constitution of this state or of the United States AND PURSU-
ANT TO AN IDENTIFICATION PROCEDURE SET FORTH IN PARAGRAPH (C) OF  SUBDI-
VISION  ONE  OF  SECTION 60.25 OF THIS ARTICLE, and then also recognized
him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED  OR  VIDEO
RECORDED  REPRODUCTION  OF  HIM OR HER as the same person whom he OR SHE
had observed on the first or incriminating occasion, may, in addition to
making an identification of the defendant at the criminal proceeding  on
the  basis of present recollection as the person whom he OR SHE observed
on the first or incriminating occasion, also describe his OR HER  previ-
ous  recognition of the defendant and testify that the person whom he OR
SHE observed OR WHOSE PICTORIAL,  PHOTOGRAPHIC,  ELECTRONIC,  FILMED  OR
VIDEO  RECORDED  REPRODUCTION HE OR SHE OBSERVED on such second occasion

S. 4484                             3

is the same person whom he OR SHE had observed on the first or  incrimi-
nating occasion.  Such testimony AND SUCH PICTORIAL, PHOTOGRAPHIC, ELEC-
TRONIC,  FILMED  OR  VIDEO RECORDED REPRODUCTION constitutes evidence in
chief.
  S 3. Subdivision 6 of section 710.20 of the criminal procedure law, as
amended  by  chapter  8 of the laws of 1976 and as renumbered by chapter
481 of the laws of 1983, is amended to read as follows:
  6.  Consists of potential testimony regarding an  observation  of  the
defendant  either  at the time or place of the commission of the offense
or upon some other occasion relevant to the case, which potential testi-
mony would not be admissible upon the prospective trial of  such  charge
owing  to an improperly made previous identification of the defendant OR
A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED  REPROD-
UCTION OF THE DEFENDANT by the prospective witness.
  S 4. Subdivision 1 of section 710.30 of the criminal procedure law, as
separately amended by chapters 8 and 194 of the laws of 1976, is amended
to read as follows:
  1.    Whenever the people intend to offer at a trial (a) evidence of a
statement made by a defendant to a public servant,  which  statement  if
involuntarily  made  would render the evidence thereof suppressible upon
motion pursuant to subdivision three of section 710.20 OF THIS  ARTICLE,
or (b) testimony regarding an observation of the defendant either at the
time  or place of the commission of the offense or upon some other occa-
sion relevant to the case, to be given by a witness who  has  previously
identified  him  OR HER OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED
OR VIDEO RECORDED REPRODUCTION OF HIM OR HER as such,  they  must  serve
upon  the  defendant a notice of such intention, specifying the evidence
intended to be offered.
  S 5. Section 343.3 of the family court act, as added by chapter 920 of
the laws of 1982, is amended to read as follows:
  S 343.3. Rules of evidence; identification by means of previous recog-
nition in absence of present identification. 1. In any  juvenile  delin-
quency  proceeding in which the respondent's commission of a crime is in
issue, testimony as provided in  subdivision  two  may  be  given  by  a
witness when:
  (a) such witness testifies that:
  (i) he OR SHE observed the person claimed by the presentment agency to
be  the respondent either at the time and place of the commission of the
crime or upon some other occasion relevant to the case; and
  (ii) on a subsequent occasion he OR SHE observed, under  circumstances
consistent  with  such  rights as an accused person may derive under the
constitution of this state or of the United States AND  PURSUANT  TO  AN
IDENTIFICATION  PROCEDURE  SET FORTH IN PARAGRAPH (C) OF SUBDIVISION ONE
OF SECTION 60.25 OF THE CRIMINAL PROCEDURE LAW, a person OR A PICTORIAL,
PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO  RECORDED  REPRODUCTION  OF  A
PERSON  whom  he OR SHE recognized as the same person whom he OR SHE had
observed on the first incriminating occasion; and
  (iii) he OR SHE is unable at the proceeding to state, on the basis  of
present  recollection,  whether  or  not the respondent is the person in
question; and
  (b) it is established that the respondent is in fact the  person  whom
the  witness  observed  and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION THE  WITNESS  OBSERVED
AND  RECOGNIZED  on the second occasion. Such fact may be established by
testimony of another person or persons  to  whom  the  witness  promptly

S. 4484                             4

declared  his OR HER recognition on such occasion AND BY SUCH PICTORIAL,
PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION.
  2. Under circumstances prescribed in subdivision one, such witness may
testify  at  the  proceeding that the person whom he OR SHE observed and
recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO
RECORDED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED  on  the  second
occasion  is  the  same  person  whom he OR SHE observed on the first or
incriminating occasion. Such testimony, together with the evidence  that
the  respondent  is  in  fact  the  person whom the witness observed and
recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO
RECORDED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED  on  the  second
occasion, constitutes evidence in chief.
  S 6. Section 343.4 of the family court act, as added by chapter 920 of
the laws of 1982, is amended to read as follows:
  S 343.4. Rules of evidence; identification by means of previous recog-
nition,  in  addition  to present identification. In any juvenile delin-
quency proceeding in which the respondent's commission of a crime is  in
issue,  a  witness who testifies that: (a) he OR SHE observed the person
claimed by the presentment agency to be the  respondent  either  at  the
time  and  place of the commission of the crime or upon some other occa-
sion relevant to the case, and (b) on the basis of present recollection,
the respondent is the person in question, and (c) on a subsequent  occa-
sion  he  OR  SHE observed the respondent, OR A PICTORIAL, PHOTOGRAPHIC,
ELECTRONIC, FILMED OR VIDEO  RECORDED  REPRODUCTION  OF  THE  RESPONDENT
under circumstances consistent with such rights as an accused person may
derive  under the constitution of this state or of the United States AND
PURSUANT TO AN IDENTIFICATION PROCEDURE SET FORTH IN  PARAGRAPH  (C)  OF
SUBDIVISION ONE OF SECTION 60.25 OF THE CRIMINAL PROCEDURE LAW, and then
also  recognized  him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC,
FILMED OR VIDEO RECORDED REPRODUCTION OF HIM OR HER as the  same  person
whom he OR SHE had observed on the first or incriminating occasion, may,
in  addition to making an identification of the respondent at the delin-
quency proceeding on the basis of present  recollection  as  the  person
whom  he  OR  SHE  observed on the first or incriminating occasion, also
describe his OR HER previous recognition of the respondent  and  testify
that  the person whom he OR SHE observed OR WHOSE PICTORIAL, PHOTOGRAPH-
IC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED
on such second occasion is the same person whom he OR SHE  had  observed
on the first or incriminating occasion. Such testimony AND SUCH PICTORI-
AL,  PHOTOGRAPHIC,  ELECTRONIC,  FILMED  OR  VIDEO RECORDED REPRODUCTION
constitutes evidence in chief.
  S 7. Section 60.45 of the criminal procedure law is amended by  adding
a new subdivision 3 to read as follows:
  3.  (A)  WHERE  A DEFENDANT IS SUBJECT TO CUSTODIAL INTERROGATION AT A
DETENTION FACILITY, ANY CONFESSION, ADMISSION OR OTHER STATEMENT  HE  OR
SHE  MAKES  TO  A  PUBLIC  SERVANT AT SUCH FACILITY WITH RESPECT TO SUCH
DEFENDANT'S PARTICIPATION OR LACK OF PARTICIPATION IN ANY OF THE FOLLOW-
ING OFFENSES SHALL BE VIDEO RECORDED, BY VIDEOTAPE OR OTHER  APPROPRIATE
VIDEO RECORDING DEVICE: A CLASS A-1 FELONY EXCEPT ONE DEFINED IN ARTICLE
TWO  HUNDRED  TWENTY  OF  THE  PENAL LAW; OR A FELONY OFFENSE DEFINED IN
ARTICLE ONE HUNDRED TWENTY-FIVE OR ARTICLE ONE HUNDRED  THIRTY  OF  SUCH
LAW THAT IS DEFINED AS A CLASS B VIOLENT FELONY OFFENSE IN SECTION 70.02
OF SUCH LAW. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "PUBLIC SERVANT"
SHALL  HAVE THE MEANING PROVIDED IN SECTION 10.00 OF THE PENAL LAW AND A
"DETENTION FACILITY" SHALL MEAN A POLICE STATION, CORRECTIONAL FACILITY,
HOLDING FACILITY FOR PRISONERS, PROSECUTOR'S OFFICE  OR  OTHER  FACILITY

S. 4484                             5

WHERE  PERSONS ARE HELD IN DETENTION IN CONNECTION WITH CRIMINAL CHARGES
THAT HAVE BEEN OR MAY BE FILED AGAINST THEM.
  (B)  WHERE  THE  PEOPLE OFFER INTO EVIDENCE A CONFESSION, ADMISSION OR
OTHER STATEMENT MADE BY A DEFENDANT IN CUSTODY WITH RESPECT  TO  HIS  OR
HER  PARTICIPATION  OR  LACK OF PARTICIPATION IN AN OFFENSE SPECIFIED IN
PARAGRAPH (A) OF THIS SUBDIVISION THAT HAS NOT BEEN  VIDEO  RECORDED  AS
REQUIRED  BY  SUCH  PARAGRAPH,  THE  COURT SHALL CONSIDER THE FAILURE TO
COMPLY WITH THIS REQUIREMENT AS A FACTOR  IN  DETERMINING  WHETHER  SUCH
CONFESSION,  ADMISSION OR OTHER STATEMENT SHALL BE ADMISSIBLE UNLESS THE
PEOPLE SHOW GOOD CAUSE FOR SUCH FAILURE, WHICH SHALL INCLUDE, BUT NOT BE
LIMITED TO: (I) MALFUNCTION OF THE VIDEO RECORDING  EQUIPMENT  OR  OTHER
INADVERTENT  ERROR THAT PREVENTS OR INTERRUPTS THE VIDEO RECORDING, (II)
UNAVAILABILITY OF SUCH EQUIPMENT BECAUSE IT WAS  OTHERWISE  BEING  USED,
(III)  THE  DEFENDANT'S REFUSAL TO MAKE A CONFESSION, ADMISSION OR OTHER
STATEMENT IF IT IS VIDEO RECORDED OR HIS OR HER REQUEST THAT IT  NOT  BE
VIDEO  RECORDED (AND SUCH REFUSAL OR REQUEST IS IN WRITING SIGNED BY THE
DEFENDANT, UNLESS THE DEFENDANT DECLINES TO DO SO),  (IV)  THE  PEOPLE'S
REASONABLE  BELIEF THAT SUCH VIDEO RECORDING WOULD JEOPARDIZE THE SAFETY
OF ANY PERSON OR REVEAL THE IDENTITY OF A CONFIDENTIAL INFORMANT, OR (V)
THE PUBLIC SERVANT OR SERVANTS HAVING CUSTODY OF THE  DEFENDANT  REASON-
ABLY  BELIEVED, AT THE TIME THE DEFENDANT MADE THE CONFESSION, ADMISSION
OR OTHER STATEMENT, THAT SUCH CONFESSION, ADMISSION OR  OTHER  STATEMENT
WOULD  NOT  RELATE TO DEFENDANT'S PARTICIPATION OR LACK OF PARTICIPATION
IN AN OFFENSE SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION.
  (C) VIDEO RECORDING AS REQUIRED BY THIS SUBDIVISION SHALL BE CONDUCTED
IN ACCORDANCE WITH STANDARDS ESTABLISHED BY  RULE  OF  THE  DIVISION  OF
CRIMINAL JUSTICE SERVICES.
  S 8. Section 710.70 of the criminal procedure law is amended by adding
a new subdivision 4 to read as follows:
  4. IN THE EVENT THAT THE COURT DETERMINES THAT A CONFESSION, ADMISSION
OR  OTHER  STATEMENT  SHALL  BE ADMISSIBLE, NOTWITHSTANDING THE PEOPLE'S
FAILURE TO SHOW GOOD CAUSE PURSUANT  TO  SUBDIVISION  THREE  OF  SECTION
60.45  OF THIS CHAPTER FOR FAILING TO VIDEO RECORD IT, THE COURT, IN ITS
CHARGE TO THE JURY AND UPON REQUEST OF THE DEFENDANT, MUST INSTRUCT  THE
JURY  THAT  THE  PEOPLE'S  FAILURE TO RECORD THE DEFENDANT'S CONFESSION,
ADMISSION OR OTHER STATEMENT AS REQUIRED BY SECTION 60.45 OF THIS  CHAP-
TER   SHOULD  BE  WEIGHED  AS  A  FACTOR  IN  DETERMINING  WHETHER  SUCH
CONFESSION, ADMISSION OTHER STATEMENT WAS VOLUNTARILY MADE OR  WAS  MADE
AT ALL.
  S 9.  Subdivision 3 of section 344.2 of the family court act is renum-
bered subdivision 4 and a new subdivision 3 is added to read as follows:
  3.  (A)  WHERE A RESPONDENT IS SUBJECT TO CUSTODIAL INTERROGATION AT A
FACILITY SPECIFIED IN SUBDIVISION FOUR OF SECTION 305.2 OF THIS ARTICLE,
ANY CONFESSION, ADMISSION OR OTHER STATEMENT HE OR SHE MAKES TO A PUBLIC
SERVANT AT SUCH FACILITY WITH RESPECT TO SUCH RESPONDENT'S PARTICIPATION
OR LACK OF PARTICIPATION IN ANY OF THE FOLLOWING OFFENSES SHALL BE VIDEO
RECORDED, BY VIDEOTAPE OR OTHER APPROPRIATE VIDEO  RECORDING  DEVICE:  A
CLASS A-1 FELONY EXCEPT ONE DEFINED IN ARTICLE TWO HUNDRED TWENTY OF THE
PENAL   LAW;  OR  A  FELONY  OFFENSE  DEFINED  IN  ARTICLE  ONE  HUNDRED
TWENTY-FIVE OR ARTICLE ONE HUNDRED THIRTY OF SUCH LAW THAT IS DEFINED AS
A CLASS B VIOLENT FELONY OFFENSE IN  SECTION  70.02  OF  SUCH  LAW.  FOR
PURPOSES  OF  THIS SUBDIVISION, THE TERM "PUBLIC SERVANT" SHALL HAVE THE
MEANING PROVIDED IN SECTION 10.00 OF THE PENAL LAW.
  (B) WHERE THE PRESENTMENT AGENCY OFFERS INTO  EVIDENCE  A  CONFESSION,
ADMISSION  OR  OTHER  STATEMENT  MADE  BY  A  RESPONDENT IN CUSTODY WITH
RESPECT TO HIS OR HER PARTICIPATION  OR  LACK  OF  PARTICIPATION  IN  AN

S. 4484                             6

OFFENSE SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION THAT HAS NOT BEEN
VIDEO  RECORDED  AS REQUIRED BY SUCH PARAGRAPH, THE COURT SHALL CONSIDER
THE FAILURE TO COMPLY WITH THIS REQUIREMENT AS A FACTOR  IN  DETERMINING
WHETHER  SUCH CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE ADMISSI-
BLE UNLESS THE PRESENTMENT AGENCY SHOWS GOOD  CAUSE  FOR  SUCH  FAILURE,
WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO: (I) MALFUNCTION OF THE VIDEO
RECORDING  EQUIPMENT  OR OTHER INADVERTENT ERROR THAT PREVENTS OR INTER-
RUPTS THE VIDEO RECORDING, (II) UNAVAILABILITY OF SUCH EQUIPMENT BECAUSE
IT WAS OTHERWISE BEING  USED,  (III)  RESPONDENT'S  REFUSAL  TO  MAKE  A
CONFESSION,  ADMISSION OR OTHER STATEMENT IF IT IS VIDEO RECORDED OR HIS
OR HER REQUEST THAT IT NOT  BE  VIDEO  RECORDED  (AND  SUCH  REFUSAL  OR
REQUEST  IS  IN  WRITING SIGNED BY THE RESPONDENT, UNLESS THE RESPONDENT
DECLINES TO DO SO), (IV) THE PRESENTMENT AGENCY'S REASONABLE BELIEF THAT
SUCH VIDEO RECORDING WOULD JEOPARDIZE THE SAFETY OF ANY PERSON OR REVEAL
THE IDENTITY OF A CONFIDENTIAL INFORMANT, OR (V) THE PUBLIC  SERVANT  OR
SERVANTS  HAVING  CUSTODY  OF THE RESPONDENT REASONABLY BELIEVED, AT THE
TIME THE RESPONDENT MADE THE CONFESSION, ADMISSION OR  OTHER  STATEMENT,
THAT  SUCH  CONFESSION, ADMISSION OR OTHER STATEMENT WOULD NOT RELATE TO
RESPONDENT'S PARTICIPATION OR LACK OF PARTICIPATION IN AN OFFENSE SPECI-
FIED IN PARAGRAPH (A) OF THIS SUBDIVISION.
  (C) VIDEO RECORDING AS REQUIRED BY THIS SUBDIVISION SHALL BE CONDUCTED
IN ACCORDANCE WITH STANDARDS ESTABLISHED BY  RULE  OF  THE  DIVISION  OF
CRIMINAL JUSTICE SERVICES.
  S  10.  This  act  shall  take  effect  immediately; provided that the
provisions of sections seven, eight and nine  of  this  act  shall  take
effect  on the first of November in the year next succeeding the year in
which this act shall have become  a  law;  provided,  further,  sections
seven,  eight  and  nine  of  this  act shall apply only to confessions,
admissions or other statements made on or after the  effective  date  of
such sections.

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