Senate Bill S2240

                                 BILL NUMBER:  S2240

 TITLE OF BILL :
An act to enact the "criminal procedure law reform act of 2005"; to
amend the criminal procedure law, in relation to identification by
means of previous identification in absence of present identification,
stays of orders dismissing a count or counts of an indictment,
defendant's presence at trial, preclusion of evidence and remedies for
violation of discovery and preclusion of evidence

 PURPOSE :
To improve the Criminal Procedure Law by closing certain legal
loopholes and remedying numerous defects in existing law that
unjustifiably hinder or preclude prosecutions or result in unnecessary
and costly retrials of fairly convicted criminals.

 SUMMARY OF PROVISIONS :
Section 1 of the bill would entitle the act the "Criminal Procedure
Law Reform Act."

Section 2 would amend section 60.25 of the Criminal Procedure Law to
permit the admission at trial of certain reliable identification
testimony.

Sections 3 and 4 would amend, respectively, subdivision 6 of section
210.20 and subdivision 2 of section 460.40 of the Criminal Procedure
              

Law, to ensure that the prosecution has an opportunity to exercise its
right to appeal pre-trial orders dismissing a count or counts of an
indictment.

Section 5 would amend section 260.20 of the Criminal Procedure Law, to
make clear both that defendants must object at trial before claiming
on appeal that their statutory right to be present at trial was
violated, and that harmless error analysis must be applied to alleged
violations of this right.

Sections 6 and 7 would amend subdivision 8 of section 450.20 and
section 450.50 of the Criminal Procedure Law, respectively, to grant
prosecutors the right to appeal pre-trial orders precluding evidence.

Section 8 would create a new section 240.46 of the Criminal Procedure
Law that would limit a party's entitlement to corrective remedies
under the Criminal Procedure Law for discovery violations only upon a
showing that the party's substantial rights were affected, and then
only to the extent required to cure the prejudice to those rights.

Section 9 would amend subdivision 2 of section 710.30 of the Criminal
Procedure Law.

Subdivision 2 requires the prosecution to provide notice to the
defendant within 15 days after arraignment of its intention to offer
at trial statements made by the defendant or identification testimony
which might conceivably have been acquired in violation of the
defendant's constitutional rights. As amended by the bill, subdivision
2 of section 710.30 continues the requirement that such notice be
served within 15 days of arraignment and prior to trial.  However,
under subdivision 2 as amended by the bill, courts will be barred from
precluding such statements or testimony at trial when notice is not
served within the 15 day period.

Section 10 provides that the act shall take effect immediately and
shall apply to all cases and proceedings on or after the date on which
it shall have become a law.

 EXISTING LAW :

The relevant provisions of existing law are discussed below in
"Statement in Support."

 JUSTIFICATION :
This bill will remedy serious deficiencies in the Criminal Procedure
Law.

1.  RIGHT TO BE PRESENT AT TRIAL .ct.  In a number of cases -- for
example,  PEOPLE  v.  DOKES , 79 N.Y.2d 656 (1992) -- the Court of
Appeals has misconstrued section 260.20 of the Criminal Procedure Law,
which confers a statutory right to be present at trial that is broader
than the federal Constitutional Right. Specifically, the Court has
ruled that a defendant, who never objects at trial that he should have
been present at a particular proceeding, can nonetheless raise the
objection on appeal for the first time. This holding is at odds with
subdivision 2 of section 470.05 of the Criminal Procedure Law, which
requires that alleged errors be protested at trial when they can be
readily corrected. Moreover, the Court has also ruled that a violation
of this statutory right always requires the reversal of the
defendant's conviction even when the evidence of guilt is
overwhelming. This holding is at odds with subdivision 1 of section
470.05 of the Criminal Procedure Law, which directs appellate courts
to decide appeals "without regard to ... defects which do not affect
the substantial rights of the parties."

The Court has extended its "right to be present" jurisprudence to the
jury selection process. See, e.g., People v. Antommarchi, 80 N.Y.2d
247 (1992), and People v. Sloan, 79 N.Y.2d 386 (1992). Thus, the Court
has ruled that this right is violated when prospective jurors discuss
outside the hearing of the defendant various issues bearing on their
ability to be fair and impartial, even though the defendant's attorney
is present during the discussions. Although the overwhelming majority
of defense attorneys and defendants believe that the absence of the
defendant is beneficial to the defense because it promotes candor from
prospective jurors, our courts now reverse convictions even though the
prospective jurors were never seated as jurors, and despite the
complete absence of any basis for believing that the jurors who did
convict the defendant were other than completely fair and impartial.
Moreover, these reversals occur even though the defendant never
objected to his or her absence and despite overwhelming evidence of
guilt. These reversals are all the more indefensible, given that the
Court has repeatedly ruled that "the jury selection process is an
ancillary proceeding -- not a 'core' proceeding critical to the
outcome of a criminal trial." People v.  Roman, 88 N.Y.2d 18,25
(1996).

The tragic consequences of this line of cases are dramatically
illustrated by the Court's decision in People v. Ricks and Mack,
decided with People v. Maher, 89 N.Y.2d 318 (1996). In this case, the
two defendants were convicted of an especially brutal and shocking
murder: the shotgun killing during the robbery of a young man,
31-year-old Berhane Woldemariam, who was returning home on Christmas
Eve with Christmas presents for needy neighborhood children.  During
the jury selection process some prospective jurors discussed at the
bench, in the presence of the attorneys but not the defendants, the
issue of exposure to pretrial publicity about the murder. These
prospective jurors were excused from service. The defendants never
objected either to their absence from the discussions or to these
prospective jurors being excused. Solely because the defendants were
not present during these discussions, the Court of Appeals upheld the
decision of a lower court reversing the defendants' convictions for
the senseless murder of Mr. Woldemariam. Thus, defendants fairly tried
and convicted before an impartial jury received the windfall of a new
trial, and the family of Mr. Woldemariam must undergo the ordeal and
painful uncertainties of another trial.

Regrettably, moreover, the decision in Ricks and Mack is not at all
unusual. Indeed, on the same day those cases were decided, the violent
felony convictions of two other criminals were reversed on the same
ground. People v. Davidson, 89 N.Y.2d 881 (1996). In recent years the
convictions of other defendants fairly convicted of serious crimes
have been reversed on the basis of the Court's unfortunate "right to
be present" jurisprudence. See, e.g., People v. Cherry, 237 A.D.2d 296
(2nd Dept. 1997) (drug sale); People v. Ballard, 224 A.D.2d 914 (4th
Dept. 1996) (drug sale); People v. Favor, 82 N.Y.2d 254 (1993)
(forcible rape, kidnapping, attempted robbery); People v.  Davis, 221
A.D.2d 557 (2nd Dept. 1995) (first degree manslaughter, criminal
possession of weapon); People v. Foster, 217 A.D.2d 558 (2nd Dept.
1995) (murder); People v. Pinero, 220 A.D.2d 540 (2nd Dept.  1995)
(drug sale); People v. Balkum, 199 A.D.2d 975 (4th Dept. 1993)
(attempted sodomy).

More recently, this disturbing line of jurisprudence has been further
broadened by the Court of Appeals in People v. Janvier, 92 N.Y.2d 993
(1998). In that case, the defendant, a second violent felony offender,
was convicted of robbery and criminal possession of a weapon. On
appeal, he contended that he was denied the right to a fair trial
because the trial court, following Antommarchi, did not allow him to
waive his right to be present in the robing room during the voir dire
of prospective jurors. The Appellate Division unanimously affirmed
defendant's conviction, holding that his contention was without merit
or, in any event, "harmless in view of the overwhelming evidence of
guilt." See, 244 A.D.2d 272 (1997). The Court of Appeals reversed the
Appellate Division's order and granted a new trial, holding that the
trial court's failure to allow the defendant to be present in the
robing room constituted an abuse of discretion since the defendant may
have wished to be absent from the proceedings for "strategic reasons."
Thus, this represents another rule embraced by the Court of Appeals
that enhances the rights of criminals by affording them the right to a
new trial even in the absence of evidence indicating actual prejudice.

The criminal justice system can ill-afford a rule that relieves
defendants of their obligation to object to alleged errors at trial,
because this obligation promotes the prompt and final resolution of
criminal cases. Nor can the criminal justice system afford a rule that
requires new trials on account of errors that do not affect either the
overall fairness of a trial or the verdict. Still less can the
criminal justice system countenance a rule that so badly damages
public confidence in the criminal justice system. Accordingly, the
bill amends section 260.20 of the Criminal Procedure Law to make clear
that defendants must object at trial to alleged violations of the
statutory right to be present and that a conviction may not be
reversed because of a violation that does not prejudice the outcome of
the trial.

2.  O'DOHERTY REFORM .ct . The bill also modifies the inflexible rule
of People v. O'Doherty, 70 N.Y.2d 479 (1987). Under section 710.30 of
the Criminal Procedure Law, the prosecution must notify the defense
within 15 days of arraignment of its intent to offer the defendant's
statement or identification evidence against him at trial. In
O'Doherty, the Court of Appeals held that even where the prosecutor
had no knowledge of the existence of a statement or identification
testimony within the 15-day period, the failure to give notice
required suppression of the evidence. This draconian sanction deprives
a trial jury of critical evidence and confers a benefit on a defendant
that is wholly disproportionate to the error. The bill provides a more
narrowly tailored remedy: it requires a court to grant an adjournment
to permit the defendant time for preparation whenever notice has been
given after the narrow 15-day period.

The court's decision in People v. Lopez, 84 N.Y.2d 425 (1994),
illustrates further weaknesses in current law. In Lopez, the defendant
was convicted of attempted murder and other violent felonies after
stabbing a woman in her Albany home during the course of a burglary.
Fortunately, the stabbing victim was able to remove the knife from her
chest and stab the defendant, who was arrested by the police after
they learned he had been treated for a stab wound.  After he was
arrested, the defendant made oral and written statements admitting the
attack, and was identified by the victim in a lineup.  Within the
prescribed 15-day period, the prosecution served notice of its
intention to offer evidence of the statements and the identification
testimony. The notice, however, did not apprise the defendant of the
content of the admissions he had made or relate the date and time of
the lineup he had been in.

Although the prosecution subsequently provided the defendant with
these details -- and, of course, the defendant certainly knew what he
had said and when he was in the lineup -- the defense nonetheless
contended that the prosecution should be precluded from offering
evidence of the admissions and the lineup at trial. According to the
defense, the failure to give details of the evidence within the 15-day
period was tantamount to a complete failure to give any notice. The
trial court rejected the claim and the defendant was convicted.

The Court of Appeals, however, agreed with the defendant and upheld
the Appellate Division's decision reversing the conviction and
ordering a new trial -- at which the prosecution would be barred from
presenting to the jury the evidence that the defendant had confessed
and had been identified by her attacker shortly after the crime. In
its opinion, the Court ruled that it was of no moment that the defense
was given details about the statements and the lineup during
discovery.

Similarly, the Court held that it was "irrelevant that the People's
failure to satisfy the requirements of 710.30 did not prejudice
defendant." Lopez, 84 N.Y.2d at 425.

Regrettably, the flawed reasoning in Lopez has been expanded in recent
years. In People v. Scott, 222 A.D.2d 1004 (4th Dept. 1995), 1v. den.
87 N.Y.2d 1025, mot. recons. withdrawn 88 N.Y.2d 1071 (1995), the
Fourth Department overturned the defendant's felony assault
conviction, holding that failure to set forth the identity of the
witnesses and the time, place and manner in which the identification
was made in the 15-day notice warranted reversal. Similarly, in People
v. Sang, 212 A.D.2d 1024 (4th Dept. 1995), 1v. den. 86 N.Y.2d 740
(1995), the Fourth Department held that failure to inform the
defendant of the time, place and manner of a photo array
identification in the 15-day notice was sufficient grounds to reverse
the defendant's robbery conviction. All that mattered in these three
cases to the Court of Appeals and the Appellate Division Fourth
Department was that Criminal Procedure Law § 710.30 requires details
within the 15-day period.

What also matters, of course, are the rights of crime victims and the
right of all New Yorkers to accurate determinations of guilt or
innocence following trials in which reliable evidence is admitted --
not excluded because of technical violations that do not prejudice
defendants.

3.  APPEALS OF PRECLUSION ORDERS :  The bill closes a loophole in the
Criminal Procedure Law that prevents the people from obtaining on
appeal the reversal of all erroneous pre-trial orders that effectively
prevent prosecutions from going forward. Under current law, when
judges "suppress" (i.e., rule inadmissible at trial) key evidence
prior to trial on the ground that the defendant's constitutional
rights were violated, the prosecution has the right to take an
immediate appeal whenever the effect of the suppression order is to
destroy the prosecution's case. However, when judges "preclude" (i.e.,
rule inadmissible at trial) key evidence prior to trial on the ground
that a mere statutory right of the defendant was violated, the
prosecution has no right to appeal the preclusion order -- even when
its effect also destroys the prosecution's case. This confounding
conclusion, as the Court of Appeals observed in its 1992 decision in
People v. Laing, 79 N.Y.2d 166 (1992), is based solely on the wording
of subdivision 8 of section 450.20 of the Criminal Procedure Law,
which confers on the prosecution the right to appeal pre-trial orders
"suppressing" evidence but makes no mention of pre-trial orders
"precluding" evidence.

This rule is untenable because it makes the appellate rights of the
prosecution turn on a mere matter of form and prevents the prosecution
from obtaining appellate reversal of wrongly entered orders barring
the use at trial of critical evidence. To acquiesce in the current law
necessarily reflects a judgment that it is somehow proper that
criminal prosecutions be prevented entirely or compromised seriously
by erroneous preclusion orders. The bill corrects this loophole by
amending subdivision 8 of section 450.20 of the Criminal Procedure Law
to expressly authorize appeals from pre-trial orders "precluding"
evidence.

4.  PROSECUTION APPEALS :  The bill remedies a glaring defect revealed
by the Court of Appeals in its 1991 decision in People v. Moquin, 77
N.Y .2d 449 (1991), a defect that defeats an important statutory
appellate right of the people and permits a defendant to gain an
unjust benefit.

 IN MOQUIN , prior to trial the trial court dismissed a second-degree
murder charge against the defendant on the ground that the evidence
before the grand jury was insufficient, but left undisturbed various
lesser charges in the indictment. The prosecution promptly exercised
its right to appeal and the Appellate Division later ruled in its
favor, concluding that the trial court had erroneously dismissed the
murder charge. In the meantime, however, the defendant had pleaded
guilty to the remaining lesser charges and had begun serving the
sentences imposed on those charges. Because the plea to the lesser
charges was valid and the defendant had begun serving her sentence,
the Court of Appeals ruled that double jeopardy principles barred
further prosecution of the murder charge. Thus, the prosecution's
right to appeal the dismissal of the murder charge was thwarted, with
the result that the defendant completely avoided prosecution for the
murder charge because of the trial court's erroneous decision to
dismiss the charge.

The bill provides a simple and effective means to prevent such a
miscarriage of justice. It amends subdivision 6 of section 210.20 of
the Criminal Procedure Law to provide for an automatic 30-day stay of
the effectiveness of any order dismissing a count or counts of an
indictment to give the prosecution an opportunity to take an appeal
from the order of dismissal. (Under current law, such a stay is
afforded only when the order dismisses a count or counts of an
indictment charging murder in the first degree.) This 30-day stay
effectively precludes a defendant from pleading guilty to just the
counts (if any) that were not affected by the dismissal order. And if
the people elect to appeal, subdivision 2 of section 460.40 of the
Criminal Procedure Law, as also amended by the bill, further stays the
effectiveness of the dismissal order.

5.  IDENTIFICATION TESTIMONY :  An infirmity in section 60.25 of the
Criminal Procedure Law prevents juries from hearing important and
reliable identification testimony. In a significant percentage of
cases, the identity of the defendant as the person who committed the
crime is a key issue at trial. After robberies, rapes, burglaries,
assaults and numerous other crimes, victims frequently see their
assailants again -- commonly in lineups or other police-arranged
identification proceedings -- and identify them to police officers.
By the time of trial, however, due to the passage of time (which may
be a year or more after the crime) or changes in the defendant's
appearance, the identifying witness may no longer recognize the
defendant and thus may not identify him in court. Wisely recognizing
this problem and the greater reliability of the identification which
occurred closer in point of time to the crime, section 60.25 of the
Criminal Procedure Law permits the witness to testify that the person
he or she identified in the lineup or other proceeding was the same
person who committed the crime, and permits the police officer to whom
the witness declared the identification to testify that the defendant
is the person that the witness previously identified.

The infirmity here is that read literally section 60.25 of the
Criminal Procedure Law conditions the admissibility of testimony by
the police officer that the defendant is the person previously
identified by the witness on the witness being "unable ... to state"
at the trial "on the basis of present recollection" whether the
defendant is the person who committed the crime. Thus, courts have
concluded that such testimony by police officers is inadmissible when
by the time of trial the recollection of an identifying witness has
faded, or the defendant's appearance has altered, to the point that
the witness identifies in court someone other than the defendant.
Thus, the testimony is excluded when it is most needed even though it
is no less reliable. In other cases, the Court of Appeals has ruled
that such testimony by police officers is inadmissible both when the
witness testifies simply that he or she does not see in court the
person who committed the crime, and when the witness refuses out of
fear to make an identification in court.

The admissibility of important evidence of guilt in the form of such
testimony by police officers should not depend on whether a witness
who has previously made a reliable identification of the defendant
recites at trial that he is "unable" to state whether or not the
defendant is the criminal. As long as the witness testifies at trial
that the person he previously identified was indeed the criminal, the
police officer to whom the witness declared his identification of the
defendant at the lineup or other identification proceeding should be
permitted to testify that the defendant is in fact the person
previously identified. To achieve this salutary result, the bill
amends section 60.25 of the Criminal Procedure Law to permit such
testimony by police officers when the witness "does not identify the
defendant, is uncertain about his identification of the defendant or
identifies a person other than the defendant" as the criminal.

 LEGISLATIVE HISTORY
2007-08: S.4140.
2005-06: S.3272, passed Senate in 2005.
2003-04: S.5563-A, passed Senate in 2004.
2001-02: S.5426-A, passed Senate both years.
1999-00: S.1912-A, passed Senate both years.

 FISCAL IMPLICATIONS :
This bill will generate substantial savings, primarily by overturning
appellate decisions that mandate unnecessary retrials.

 EFFECTIVE DATE :
Immediately.