senate Bill S4484A

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:
A6800A
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, amd §840, Exec L

Sponsor Memo

BILL NUMBER:S4484A

TITLE OF BILL: An act to amend the criminal procedure law, the
executive 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 photo identifications so that such identifications -
long barred from criminal trials under most circumstances - could 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.

To achieve the foregoing, sections one and two of this measure would
make appropriate revisions in CPL 60.25 and CPL 60.30, respectively,
to authorize admission of photo identifications pursuant to a
double-blind process or a single-blind process where it is
impracticable for the array administrator not to know who the accused
is.

Section three would amend CPL 710.20(6) to authorize a motion to
suppress evidence of 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.

Section five would amend the Executive Law to require the Municipal
Police Training Council to adopt a model policy to help guide law
enforcement officials in conducting photographic and live lineups.

Sections six and seven 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 CPL
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 eight 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 nine 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 ten 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 eleven 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.

2013 Legislative History

Senate 4484 (Senator Nozzolio) (ref to Codes) Assembly 6800 (M. of A.
Lentol) (ref to Codes)

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

                                 4484--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              April 3, 2013
                               ___________

Introduced  by  Sens.  NOZZOLIO,  HASSELL-THOMPSON -- (at request of the
  Office of Court Administration) -- read twice and ordered printed, and
  when printed to be committed to the Committee on  Codes  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend the criminal procedure law, the executive 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, a person  OR,  WHERE
THE  OBSERVATION  IS  MADE  PURSUANT  TO  AN IDENTIFICATION PROCEDURE AS
DEFINED IN THIS SECTION, 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  incriminat-
ing occasion; and

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08982-02-3

S. 4484--A                          2

  (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
  (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" IS ONE
IN  WHICH  THE  WITNESS  IDENTIFIES  A  PERSON IN AN ARRAY OF PICTORIAL,
PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED  REPRODUCTIONS  UNDER
CIRCUMSTANCES  WHERE:  (I)  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, (II) 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
is the same person whom he OR SHE had observed on the first or  incrimi-
nating occasion.  Such testimony AND SUCH PICTORIAL, PHOTOGRAPHIC, ELEC-

S. 4484--A                          3

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 840 of the executive law is  amended  by  adding  a  new
subdivision 5 to read as follows:
  5. (A) THE COUNCIL SHALL, IN ADDITION, IN CONSULTATION WITH SCIENTIFIC
EXPERTS  IN EYEWITNESS MEMORY RESEARCH AND THE CRIMINAL JUSTICE COMMUNI-
TY, DEVELOP AND, FOLLOWING A PERIOD  OF  PUBLIC  COMMENT,  MAINTAIN  AND
DISSEMINATE  TO  ALL  POLICE  AND  PROSECUTORIAL AGENCIES IN THE STATE A
MODEL POLICY FOR THE PERSONNEL OF SUCH  AGENCIES  INVOLVED  IN  CRIMINAL
INVESTIGATIONS  THAT  EMBODIES  CURRENT  BEST  PRACTICES  FOR CONDUCTING
PHOTOGRAPHIC AND LIVE LINEUPS. THESE BEST PRACTICES MUST  BE  CONSISTENT
WITH  RECOMMENDATIONS  INCORPORATED  IN "BEST PRACTICES FOR THE ADMINIS-
TRATION OF IDENTIFICATION PROCEDURES" PUBLISHED IN TWO  THOUSAND  ELEVEN
BY THE JUSTICE TASK FORCE ESTABLISHED BY THE CHIEF JUDGE OF THE STATE IN
MAY,  TWO  THOUSAND  NINE,  AND  MUST INCLUDE BUT NEED NOT BE LIMITED TO
THOSE PRACTICES DESCRIBED THEREIN AS "I. INSTRUCTIONS TO WITNESS,"  "II.
WITNESS  CONFIDENCE  STATEMENTS,"  "III. DOCUMENTATION OF IDENTIFICATION
PROCEDURES," AND "V. LIVE LINEUPS." FOR PURPOSES  OF  THIS  SUBDIVISION,
THE  "CRIMINAL JUSTICE COMMUNITY" SHALL INCLUDE POLICE AND PROSECUTORIAL
AGENCIES OF THE STATE AND REPRESENTATIVES OF THE CRIMINAL DEFENSE BAR.
  (B) EACH POLICE AND PROSECUTORIAL AGENCY  IN  THE  STATE  SHALL  ADOPT
WRITTEN  POLICIES RELATING TO THE CONDUCT OF PHOTOGRAPHIC AND LIVE LINE-
UPS THAT CONFORM WITH THE MODEL POLICY PRESCRIBED BY  PARAGRAPH  (A)  OF
THIS SUBDIVISION.
  S  6.   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:

S. 4484--A                          4

  (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, a person OR, WHERE
THE OBSERVATION IS MADE  PURSUANT  TO  AN  IDENTIFICATION  PROCEDURE  AS
DEFINED  IN  PARAGRAPH  (C)  OF  SUBDIVISION ONE OF SECTION 60.25 OF THE
CRIMINAL PROCEDURE LAW, 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 occa-
sion; 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
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 7. 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-

S. 4484--A                          5

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 8. 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 BY A
PUBLIC SERVANT AT A DETENTION FACILITY, THE  ENTIRE  CUSTODIAL  INTERRO-
GATION,  INCLUDING THE GIVING OF ANY REQUIRED ADVICE TO THE DEFENDANT AS
TO HIS OR HER RIGHTS AND DEFENDANT'S WAIVER OF ANY RIGHTS SHALL BE VIDEO
RECORDED, BY VIDEOTAPE OR OTHER APPROPRIATE VIDEO  RECORDING  DEVICE  IF
THE  CUSTODIAL  INTERROGATION  INVOLVES:  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  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 9. 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,

S. 4484--A                          6

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  10.    Subdivision  3  of  section 344.2 of the family court act is
renumbered subdivision 4 and a new subdivision 3 is  added  to  read  as
follows:
  3.  (A)  WHERE A RESPONDENT IS SUBJECT TO CUSTODIAL INTERROGATION BY A
PUBLIC SERVANT AT A FACILITY SPECIFIED IN SUBDIVISION  FOUR  OF  SECTION
305.2 OF THIS ARTICLE, THE ENTIRE CUSTODIAL INTERROGATION, INCLUDING THE
GIVING  OF ANY REQUIRED ADVICE TO THE RESPONDENT AS TO HIS OR HER RIGHTS
AND RESPONDENT'S WAIVER OF ANY RIGHTS SHALL BE VIDEO RECORDED, BY  VIDE-
OTAPE  OR  OTHER  APPROPRIATE  VIDEO  RECORDING  DEVICE IF THE CUSTODIAL
INTERROGATION INVOLVES:  A CLASS A-1 FELONY EXCEPT ONE DEFINED IN  ARTI-
CLE  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
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 11. This act  shall  take  effect  immediately;  provided  that  the
provisions of sections eight, nine and ten 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  eight,
nine  and ten 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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