S T A T E O F N E W Y O R K
________________________________________________________________________
1999
2011-2012 Regular Sessions
I N S E N A T E
January 14, 2011
___________
Introduced by Sen. SKELOS -- 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 evidence of identification
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 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 A PICTO-
RIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF A
PERSON whom he OR SHE recognized as the same person whom he OR SHE had
observed on the first or incriminating occasion; 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
(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 VIDEOTAPED REPRODUCTION THE WITNESS OBSERVED AND
RECOGNIZED on the second occasion. Such fact may be established by
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06171-01-1
S. 1999 2
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 VIDEOTAPED REPRODUCTION.
2. Under circumstances prescribed in subdivision one, 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 VIDEOTAPED 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 VIDEOTAPED 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 VIDEOTAPED REPRODUCTION OF THE DEFENDANT, under circumstances
consistent with such rights as an accused person may derive under the
constitution of this state or of the United States, and then also recog-
nized him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR
VIDEOTAPED 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
VIDEOTAPED REPRODUCTION HE OR SHE OBSERVED on such second occasion is
the same person whom he OR SHE had observed on the first or incriminat-
ing occasion. Such testimony AND SUCH PICTORIAL, PHOTOGRAPHIC, ELEC-
TRONIC, FILMED OR VIDEOTAPED 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 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 VIDEOTAPED REPRODUCTION
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, or (b) testimony
S. 1999 3
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, to be given by a witness who has previously identified him OR
HER OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED
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. Sections 343.3 and 343.4 of the family court act, as added by
chapter 920 of the laws of 1982, are 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, a person OR A PICTO-
RIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED 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 VIDEOTAPED 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 VIDEOTAPED 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 VIDE-
OTAPED 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 VIDE-
OTAPED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on the second
occasion, constitutes evidence in chief.
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 VIDEOTAPED 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
S. 1999 4
then also recognized him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELEC-
TRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF HIM OR HER as the same
person whom he OR SHE had observed on the first or incriminating occa-
sion, may, in addition to making an identification of the respondent at
the delinquency 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,
PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED 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
PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION
constitutes evidence in chief.
S 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.