Senate Bill S2012

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

    S. 2012                                                  A. 3012

                      S E N A T E - A S S E M B L Y

                            January 21, 2015
                               ___________

IN  SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
  cle seven of the Constitution -- read twice and ordered  printed,  and
  when printed to be committed to the Committee on Finance

IN  ASSEMBLY  --  A  BUDGET  BILL, submitted by the Governor pursuant to
  article seven of the Constitution -- read once  and  referred  to  the
  Committee on Ways and Means

AN  ACT  to  amend  the criminal procedure law, in relation to the defi-
  nition of immunity and motions to dismiss  information  or  indictment
  based upon a claim of immunity

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

  Section 1.  Section 50.10 of the criminal procedure law is amended  to
read as follows:
S  50.10  Compulsion  of  evidence  by offer of immunity; definitions of
            terms.
  The following definitions are applicable to this article:
  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,
penalty or forfeiture.] (A) A PERSON WHO HAS BEEN A WITNESS IN  A  LEGAL
PROCEEDING,  AND  NEITHER  THE  EVIDENCE  GIVEN  BY THAT WITNESS NOR ANY
EVIDENCE DERIVED DIRECTLY OR INDIRECTLY THEREFROM MAY  BE  USED  AGAINST
THE WITNESS IN THE SAME OR ANY OTHER CRIMINAL PROCEEDING OR IN THE IMPO-
SITION OF ANY PENALTY OR FORFEITURE POSSESSES "IMMUNITY".
  (B) 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, AND THE
EVIDENCE GIVEN BY THE PERSON AT  THE  PROCEEDING  AT  WHICH  THE  PERSON
POSSESSED  IMMUNITY  MAY  BE USED AGAINST SUCH PERSON IN ANY SUCH PROSE-
CUTION FOR PERJURY OR PROSECUTION OR JUDGMENT FOR CONTEMPT.

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

                                                           LBD12577-01-5

S. 2012                             2                            A. 3012

  2. "Legal proceeding" means a proceeding in or  before  any  court  or
grand  jury,  or  before any body, agency or person authorized by law to
conduct the same and to administer the oath or to cause it to be  admin-
istered.
  3. "Give evidence" means to testify or produce physical evidence.
  S 2. Section 170.30 of the criminal procedure law is amended by adding
a new subdivision 5 to read as follows:
  5.  WHERE THE DEFENDANT ESTABLISHES IN HIS OR HER MOTION THAT IMMUNITY
HAS BEEN CONFERRED UPON HIM OR HER, THE PEOPLE MUST THEN ESTABLISH, BY A
PREPONDERANCE OF THE EVIDENCE,  THAT  SUCH  EVIDENCE  WAS  NOT  DERIVED,
DIRECTLY  OR INDIRECTLY, FROM THE EVIDENCE AS TO WHICH SUCH IMMUNITY WAS
CONFERRED.
  S 3. Section 210.35 of the criminal procedure law is amended by adding
a new subdivision 4-a to read as follows:
  4-A. EVIDENCE PROTECTED BY IMMUNITY WAS USED TO OBTAIN THE INDICTMENT;
OR
  S 4. The opening paragraph and subdivisions 6 and 7 of section  710.20
of  the  criminal procedure law, the opening paragraph and subdivision 6
as amended by chapter 8 of the laws of 1976, subdivision 7 as  added  by
chapter  744  of  the  laws  of 1988, and subdivision 6 as renumbered by
chapter 481 of the laws of 1983, are amended and a new subdivision 8  is
added to read as follows:
  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
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 OR SHE
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:
  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 USE IMMUNITY
HAS BEEN CONFERRED UPON HIM OR HER, THE PEOPLE MUST THEN ESTABLISH, BY A
PREPONDERANCE OF THE EVIDENCE,  THAT  SUCH  EVIDENCE  WAS  NOT  DERIVED,
DIRECTLY  OR INDIRECTLY, FROM THE EVIDENCE AS TO WHICH SUCH IMMUNITY WAS
CONFERRED.
  S 5. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction  to
be  invalid,  such  judgment shall not affect, impair, or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph, section or part thereof directly  involved  in  the
controversy in which such judgment shall have been rendered.
  S  6.  This  act shall take effect on the thirtieth day after it shall
have become a law and shall only apply to acts  committed  on  or  after
such date.