NY State Senate Bill 2009-S835

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to codes
Jan 18, 2009	referred to codes

2009-S835 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§50.10, 170.30, 190.40, 210.20 & 710.20, CP L
Versions Introduced in 2011-2012 Legislative Session:: S1959

2009-S835 (ACTIVE) - Summary

Redefines an immunity recipient as a person who has been a witness in a legal proceeding and who has given evidence therein, and whose evidence (or any information directly or indirectly derived therefrom) may not be used against him in any criminal case; provides that a prosecutor may use evidence from a source independent of the defendant's immunized testimony against such immunity recipient; provides that, upon a motion by such immunity recipient to suppress such independent evidence, it shall be the burden of the prosecution to prove, beyond a reasonable doubt, that such evidence was derived from an independent source.

2009-S835 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S835

 TITLE OF BILL :
An act to amend the criminal procedure law, in relation to
substituting use immunity for transactional immunity


 SUMMARY OF BILL :
This bill redefines an immunity recipient as a person who has been a
witness in a legal proceeding and who has given evidence therein, and
whose evidence (or any information directly or indirectly derived
therefrom) may not be used against him in any criminal case.

A prosecutor may use evidence from a source independent of the
defendant's immunized testimony. But, upon a motion by the defendant
to suppress the evidence, it is the burden of the prosecutor to prove,
beyond a reasonable doubt, that such evidence was derived from an
independent source.

Finally, the bill precludes, with few exceptions, a grand jury for
indicting a witness upon whom it has conferred immunity. The same
grand jury that conferred immunity can only subsequently indict the
witness for perjury or contempt or where the immunity was conferred
solely because the witness produced documents or other physical
evidence for which he possessed a privilege against self-incrimination
with respect to the act of producing the evidence.  A different grand

jury panel can, however, subsequently indict the witness for any
offense based on evidence for which he does not have immunity.

 JUSTIFICATION :
The current New York Law governing immunity from prosecution is
illogical, capricious, inflexible and contrary to public interest.
The existing law confers total immunity and benefits no one except the
criminal. Furthermore, the criminal can take advantage of the
prosecutor's mistake or manipulation at testimony to achieve total
immunity for himself or herself. The current law also hinders
investigations by discouraging prosecutors from calling witnesses who
may themselves obtain a total immunity from any prosecution. There are
no constitutional, legal or practical reasons for allowing the blanket
immunity conferred by New York's law. Its results are self-defeating,
unjust, and not a reflection of the intentions of the CPL drafters.

The transactional immunity provision is unrealistically restrictive.
It prevents the legitimate prosecution of many offenses, especially
those involving sophisticated or close-knit criminal groups.
Additionally, it has been construed by the courts to grant complete
transactional immunity in situations that the law cannot have
reasonably intended, and which are contrary to the public interest.
For example, in one case it was held that a witness who testified
before a grand jury investigating a homicide received immunity from
unrelated pending charges of specific drug sales simply because she
testified, as a general matter, that she sold drugs for a living.
 PEOPLE V. MCFARLAN , 42 NY 2d 896 (1977).

This bill changes the law from "transactional" immunity to "use"
immunity. It is derived from a federal statute, Title 18, U.S.C.
sections 6002 and 6003, which was approved by the united States
supreme Court in  KASTIGAR V. UNITED STATES , 405 U.S. 441 (1972).
The Court in  KASTIGAR  held that a witness compelled to testify under
a statutory scheme like the one in this bill would receive all the
benefits to which he is entitled under the Fifth Amendment to the
United States constitution.  Under  KASTIGAR , the purpose, except if
his testimony were perjurious or contumacious. This means, as is
stated explicitly in the bill, that even information derived directly
or indirectly from the witness' testimony cannot be used against him
or her.
This last provision places a heavy burden upon a prosecutor who
decides to proceed against a witness who has received immunity. Under

 KASTIGAR , in such a case, the prosecution would have the
"affirmative duty to prove that the evidence it proposes to use is
derived from a legitimate source wholly independent of the compelled
testimony".   406 U.S. AT 460 .ct.  The Second Circuit Court of
Appeals has suggested that the prosecution would be unlikely to meet
such a burden unless it somehow certified the evidence in its
possession before it moved to compel testimony.   GOLDBERG V. UNITED
STATES , 472 F.2d 573, 516 n.5 (1973).  Under this bill, if the people
wish to prosecute a person whose testimony they also wish to compel,
they must be prepared to prove beyond a reasonable doubt that the
evidence used against him was not derived from his testimony.

To ensure that witnesses who are granted immunity are properly
protected against prejudice, the bill prohibits, with narrow
exceptions, a grand jury from indicting a witness upon whom it has
conferred immunity.  witnesses may be indicted by the grand jury that
conferred immunity only for the offenses of perjury or contempt or
only where the immunity was conferred for the act of producing books,
papers, records or other physical evidence. A different grand jury
may, however, indict the immunized witness for an offense based on
other evidence for which he does not have immunity.

This bill implements a recommendation contained in prior Annual
Messages to the Legislature by the Governor.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
The first day of November after it has become a law.

2009-S835 (ACTIVE) - Bill Text download pdf

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

                                   835

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            January 18, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the criminal procedure law, in relation to  substituting
  use immunity for transactional immunity

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

  Section 1.  Subdivision 1 of section 50.10 of the  criminal  procedure
law is amended to read as follows:
  1.   ["Immunity."  A person who has been a witness in a legal proceed-
ing, and who cannot, except as otherwise provided in  this  subdivision,
be  convicted  of  any offense or subjected to any penalty or forfeiture
for or on account of any transaction, matter or thing  concerning  which
he   gave   evidence   therein,   possesses  "immunity"  from  any  such
conviction,] "IMMUNITY", WHEN CONFERRED ON A WITNESS  IN  A  PROCEEDING,
MEANS  THAT  NEITHER THE EVIDENCE GIVEN BY THAT WITNESS NOR ANY EVIDENCE
DERIVED DIRECTLY OR INDIRECTLY FROM IT MAY BE USED AGAINST  HIM  IN  THE
SAME OR ANY OTHER CRIMINAL PROCEEDING OR IN THE IMPOSITION OF ANY penal-
ty or forfeiture.  A person who possesses such immunity may nevertheless
be  convicted  of perjury as a result of having given false testimony in
such legal proceeding, and may be convicted of or adjudged  in  contempt
as a result of having contumaciously refused to give evidence therein.
  S  2.  Subdivision  1 of section 170.30 of the criminal procedure law,
the opening paragraph as amended by chapter 661 of the laws of 1972,  is
amended to read as follows:
  1.  After arraignment upon an information, a simplified information, a
prosecutor's  information or a misdemeanor complaint, the local criminal
court may, upon motion of the defendant, dismiss such instrument or  any
count thereof upon the ground that:
  (a)  It is defective, within the meaning of section 170.35; or
  (b)    [The  defendant  has received immunity from prosecution for the
offense charged, pursuant to sections 50.20 or 190.40; or

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06302-01-9

S. 835                              2

  (c)]  The prosecution is barred by reason of a  previous  prosecution,
pursuant to section 40.20; or
  [(d)] (C) The prosecution is untimely, pursuant to section 30.10; or
  [(e)]  (D)  The defendant has been denied the right to a speedy trial;
or
  [(f)] (E)  There exists some other jurisdictional or legal  impediment
to conviction of the defendant for the offense charged; or
  [(g)] (F)  Dismissal is required in furtherance of justice, within the
meaning of section 170.40.
  S 3. Section 190.40 of the criminal procedure law is amended by adding
a new subdivision 3 to read as follows:
  3.  A  WITNESS  WHO  GIVES  EVIDENCE  IN A GRAND JURY, AND WHO THEREBY
RECEIVES IMMUNITY PURSUANT TO SUBDIVISION TWO OF THIS SECTION,  MAY  NOT
THEREAFTER  BE  INDICTED BY THAT SAME GRAND JURY FOR ANY OFFENSE, EXCEPT
(A) WHERE THAT OFFENSE IS PERJURY OR CONTEMPT, AS TO  WHICH  PROSECUTION
IS PERMITTED BY SECTION 50.10 OF THIS CHAPTER; OR (B) WHERE THE EVIDENCE
GIVEN  BY  THE  WITNESS CONSISTS ONLY OF BOOKS, PAPERS, RECORDS OR OTHER
PHYSICAL EVIDENCE OF AN ENTERPRISE, AS DEFINED  IN  SUBDIVISION  ONE  OF
SECTION  175.00  OF THE PENAL LAW, AND ANY IMMUNITY THE WITNESS RECEIVES
RESULTS SOLELY FROM HIS POSSESSION OF A PRIVILEGE AGAINST  SELF-INCRIMI-
NATION  WITH  RESPECT  TO THE ACT OF PRODUCING SUCH EVIDENCE. NOTHING IN
THIS SUBDIVISION SHALL PRECLUDE ANOTHER GRAND JURY PANEL IN THE SAME  OR
ANY  OTHER  COUNTY FROM CHARGING THE WITNESS WITH ANY OFFENSE BASED UPON
OTHER EVIDENCE WHOSE USE AGAINST THE WITNESS IS NOT BARRED BY THE  IMMU-
NITY HE HAS RECEIVED BY GIVING EVIDENCE BEFORE THE FIRST GRAND JURY.
  S  4. Subdivision 1 of section 210.20 of the criminal procedure law is
amended to read as follows:
  1.  After arraignment upon an indictment, the superior court may, upon
motion of the defendant, dismiss such indictment or  any  count  thereof
upon the ground that:
  (a)    Such  indictment  or  count is defective, within the meaning of
section 210.25; or
  (b)  The evidence before the grand jury was not legally sufficient  to
establish the offense charged or any lesser included offense; or
  (c)    The  grand jury proceeding was defective, within the meaning of
section 210.35; or
  (d)  [The defendant has immunity with respect to the offense  charged,
pursuant to section 50.20 or 190.40; or
  (e)]    The prosecution is barred by reason of a previous prosecution,
pursuant to section 40.20; or
  [(f)] (E)  The prosecution is untimely, pursuant to section 30.10; or
  [(g)] (F) The defendant has been denied the right to a  speedy  trial;
or
  [(h)]  (G)  There exists some other jurisdictional or legal impediment
to conviction of the defendant for the offense charged; or
  [(i)] (H)  Dismissal is required in the interest of justice,  pursuant
to section 210.40.
  S 5. Section 710.20 of the criminal procedure law, as amended by chap-
ter 8 of the laws of 1976, subdivision 2 as amended and subdivision 7 as
added  by  chapter  744 of the laws of 1988, subdivision 3 as amended by
chapter 214 of the laws of 1982, subdivision 5 as amended by chapter 629
of the laws of 1998, subdivision 6 as renumbered by chapter 481  of  the
laws of 1983, is amended to read as follows:
S 710.20  Motion to suppress evidence; in general; grounds for.
  Upon motion of a defendant who (a) is aggrieved by unlawful or improp-
er acquisition of evidence and has reasonable cause to believe that such

S. 835                              3

may  be  offered  against  him  in a criminal action, or (b) claims that
improper identification testimony may be offered against him in a crimi-
nal action, OR (C) CLAIMS THAT EVIDENCE  AS  TO  THE  USE  OF  WHICH  HE
POSSESSES  IMMUNITY  MAY  BE OFFERED AGAINST HIM IN A CRIMINAL ACTION, a
court may, under circumstances prescribed in this  article,  order  that
such evidence be suppressed or excluded upon the ground that it:
  1.    Consists  of  tangible property obtained by means of an unlawful
search and seizure under circumstances precluding admissibility  thereof
in a criminal action against such defendant; or
  2.  Consists of a record or potential testimony reciting or describing
declarations,  conversations,  or other communications overheard, inter-
cepted, accessed, or recorded by means of eavesdropping, or observations
made by  means  of  video  surveillance,  obtained  under  circumstances
precluding  admissibility  thereof  in  a  criminal  action against such
defendant; or
  3.  Consists of a record or potential testimony reciting or describing
a statement of such defendant involuntarily made, within the meaning  of
section 60.45; or
  4.    Was  obtained as a result of other evidence obtained in a manner
described in subdivisions one, two and three; or
  5. Consists of a chemical test of the defendant's  blood  administered
in  violation  of  the provisions of subdivision three of section eleven
hundred ninety-four of the vehicle and traffic law, subdivision eight of
section forty-nine-a of the navigation law, subdivision seven of section
25.24 of the parks, recreation and historic  preservation  law,  or  any
other applicable law; or
  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  by
the prospective witness[.]; OR
  7. Consists of information obtained by means of a pen register or trap
and  trace  device  installed  or used in violation of the provisions of
article seven hundred five of this chapter; OR
  8. CONSISTS OF POTENTIAL EVIDENCE AS TO THE USE OF WHICH THE DEFENDANT
POSSESSES IMMUNITY. WHERE THE DEFENDANT ESTABLISHES  THAT  IMMUNITY  HAD
BEEN  CONFERRED  UPON  HIM,  THE  PEOPLE  MUST  THEN ESTABLISH, BEYOND A
REASONABLE DOUBT, THAT NONE OF THE EVIDENCE WHICH THEY PROPOSE TO USE IN
THE INSTANT ACTION CONSISTS OF OR WAS  DERIVED  DIRECTLY  OR  INDIRECTLY
FROM THE EVIDENCE AS TO WHICH SUCH IMMUNITY HAD BEEN CONFERRED.
  S  6.    This  act  shall  take  effect  on the first of November next
succeeding the date on which it shall have become a law.

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Senate Bill S835

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Archive: Last Bill Status - In Senate Committee Codes Committee

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2009-S835 (ACTIVE) - Details

2009-S835 (ACTIVE) - Summary

2009-S835 (ACTIVE) - Sponsor Memo

2009-S835 (ACTIVE) - Bill Text download pdf

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Sponsored By

Carl Kruger

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

2009-S835 (ACTIVE) - Details

2009-S835 (ACTIVE) - Summary

2009-S835 (ACTIVE) - Sponsor Memo

2009-S835 (ACTIVE) - Bill Text download pdf

Comments