S T A T E   O F   N E W   Y O R K
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                                  5580

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 14, 2015
                               ___________

Introduced  by  Sen.  AVELLA -- 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  grand  jury
  rules of evidence

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

  Section 1. Subdivision 1 of section 20.60 of  the  criminal  procedure
law is amended to read as follows:
  1.   An oral or written statement made by a person in one jurisdiction
to a person in another jurisdiction by means of telecommunication,  mail
or  any  other method of communication is deemed to be made in each such
jurisdiction.  FOR PURPOSES OF THIS SUBDIVISION,  SUCH  STATEMENT  SHALL
INCLUDE TESTIMONY GIVEN PURSUANT TO SUBDIVISION FOUR-A OF SECTION 190.30
OF THIS CHAPTER.
  S  2.  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,
penalty or forfeiture], NEITHER THE EVIDENCE GIVEN BY SUCH  WITNESS  NOR
ANY  EVIDENCE  DERIVED  DIRECTLY  OR  INDIRECTLY  THEREFROM  MAY BE USED
AGAINST THE WITNESS IN  THE  SAME  OR  ANY  OTHER  CRIMINAL  PROCEEDING,
POSSESSES  "IMMUNITY".   A person who possesses such immunity may never-
theless be convicted of perjury as a result of having given false testi-
mony 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 PROSECUTION FOR PERJURY OR JUDGMENT FOR CONTEMPT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11100-02-5
              

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  S  3. Section 60.22 of the criminal procedure law is amended by adding
a new subdivision 4 to read as follows:
  4.  FOR  PURPOSES  OF  THIS SECTION, "CORROBORATIVE EVIDENCE" INCLUDES
EVIDENCE FROM ONE OR MORE OTHER ACCOMPLICES.
  S 4. Paragraph (b) of subdivision 1 of section 170.30 of the  criminal
procedure  law  is  amended  and a new subdivision 5 is added to read as
follows:
  (b) [The defendant has received  immunity  from  prosecution  for  the
offense  charged,  pursuant  to sections 50.20 or 190.40] ALLEGATIONS IN
THE INFORMATION, SIMPLIFIED  INFORMATION,  PROSECUTOR'S  INFORMATION  OR
MISDEMEANOR  COMPLAINT  ARE  BASED  ON EVIDENCE PROTECTED BY IMMUNITY AS
DEFINED IN SUBDIVISION ONE OF SECTION 50.10 OF THIS CHAPTER; or
  5. WHERE THE DEFENDANT ESTABLISHES IN HIS OR HER MOTION THAT  IMMUNITY
HAS  BEEN  CONFERRED ON 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. A MOTION SEEKING RELIEF ON THIS GROUND SHALL  NOT  BE  ENTER-
TAINED  BEFORE  A  MOTION  MADE PURSUANT TO SUBDIVISION EIGHT OF SECTION
710.20 OF THIS CHAPTER, SEEKING SUPPRESSION OF POTENTIAL EVIDENCE AS  TO
THE  USE  OF  WHICH THE DEFENDANT POSSESSES IMMUNITY, HAS BEEN RESOLVED.
UPON GRANT OF SUCH A MOTION, THE  COURT  MUST  DISMISS  THE  INSTRUMENT;
OTHERWISE, THE COURT MUST DENY THE MOTION TO DISMISS.
  S  5. Paragraph (a) of subdivision 8 of section 190.30 of the criminal
procedure law, as added by chapter 279 of the laws of 2008, is  amended,
subdivision  3 is amended by adding a new paragraph (h) and a new subdi-
vision 4-a is added to read as follows:
  (H) THAT A PERSON'S OWNERSHIP OF, OR  POSSESSORY  RIGHT  IN,  PERSONAL
IDENTIFYING INFORMATION, AS DEFINED IN SUBDIVISION ONE OF SECTION 190.77
OF  THE  PENAL  LAW,  OR A PERSONAL IDENTIFICATION NUMBER, AS DEFINED IN
PARAGRAPH B OF SUBDIVISION TWO OF SECTION 190.77 OF THE PENAL LAW AS ANY
NUMBER OR CODE WHICH MAY BE USED ALONE OR IN CONJUNCTION WITH ANY  OTHER
INFORMATION TO ASSUME THE IDENTITY OF ANOTHER PERSON OR ACCESS FINANCIAL
RESOURCES OR CREDIT OF ANOTHER PERSON, AND THE DEFENDANT'S LACK OF SUPE-
RIOR OR EQUAL RIGHT TO USE OR POSSESSION THEREOF.
  4-A.  WHENEVER  THE  DISTRICT  ATTORNEY  HAS  REASON TO BELIEVE THAT A
WITNESS, OTHER THAN A WITNESS WHO WAIVES IMMUNITY  PURSUANT  TO  SECTION
190.40  OF  THIS ARTICLE, INCLUDING A DEFENDANT TESTIFYING ON HIS OR HER
OWN BEHALF PURSUANT TO SUBDIVISION FIVE OF SECTION 190.50 OF THIS  ARTI-
CLE,  IS LOCATED EITHER OUT-OF-STATE OR MORE THAN ONE HUNDRED MILES FROM
THE GRAND JURY PROCEEDING, THE PERSON  MAY  PROVIDE  LIVE  TESTIMONY  BY
CLOSED  CIRCUIT  VIDEO OR VIDEOCONFERENCING IN THE SAME MANNER AS IF THE
WITNESS HAD TESTIFIED IN PERSON. THE AUDIOVISUAL TECHNOLOGY USED  PURSU-
ANT  TO  THIS  SECTION  SHALL  SEEK  TO ENSURE THAT THE COMMUNICATION BE
REASONABLY SECURE FROM INTERCEPTION OR  EAVESDROPPING  BY  ANYONE  OTHER
THAN  THE PERSONS COMMUNICATING, AND MUST ENSURE THAT THE WITNESS MAY BE
CLEARLY HEARD, SEEN AND EXAMINED.
  (A) THE TESTIMONY OF THE WITNESS SHALL BE:
  (I) TAKEN BY A CERTIFIED VIDEOGRAPHER WHO IS IN THE PHYSICAL  PRESENCE
OF THE WITNESS. THE CERTIFIED VIDEOGRAPHER SHALL SIGN A WRITTEN DECLARA-
TION  WHICH  STATES THAT THE WITNESS DOES NOT POSSESS ANY NOTES OR OTHER
MATERIALS TO ASSIST IN THE WITNESS'S TESTIMONY;
  (II) RECORDED AND PRESERVED THROUGH THE USE OF  AUDIOVISUAL  RECORDING
TECHNOLOGY; AND
  (III) TRANSCRIBED BY A CERTIFIED COURT REPORTER.
  (B)  BEFORE  GIVING  TESTIMONY,  THE WITNESS SHALL BE SWORN AND SIGN A
WRITTEN DECLARATION, WHICH ACKNOWLEDGES THAT THE WITNESS IS ALONE IN THE

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ROOM WHERE THE TESTIMONY IS BEING TAKEN, THAT, TO HIS OR HER  KNOWLEDGE,
NO  ONE  OTHER  THAN  THE  CERTIFIED  VIDEOGRAPHER IS HEARING HIS OR HER
TESTIMONY, THAT THE WITNESS UNDERSTANDS THAT HE OR SHE IS SUBJECT TO THE
JURISDICTION  OF THE COURTS OF THIS STATE AND MAY BE SUBJECT TO CRIMINAL
PROSECUTION FOR THE COMMISSION OF ANY CRIME IN CONNECTION  WITH  HIS  OR
HER  TESTIMONY, INCLUDING, WITHOUT LIMITATION, PERJURY AND CONTEMPT, AND
THAT THE WITNESS CONSENTS TO SUCH JURISDICTION.
  (C) THE ORIGINAL RECORDED TESTIMONY OF THE WITNESS MUST  BE  DELIVERED
TO THE CERTIFIED COURT REPORTER.
  [(a)  A business record may be received in such grand jury proceedings
as evidence of the following facts and similar facts stated therein:
  (i) a person's use of, subscription to and charges  and  payments  for
communication equipment and services including but not limited to equip-
ment  or  services  provided by telephone companies and internet service
providers, but not including recorded conversations or  images  communi-
cated thereby; and
  (ii)  financial  transactions,  and a person's ownership or possessory
interest in any  account,  at  a  bank,  insurance  company,  brokerage,
exchange  or banking organization as defined in section two of the bank-
ing law.] ALL BUSINESS RECORDS AS DEFINED IN  SUBDIVISION  (A)  OF  RULE
4518  OF THE CIVIL PRACTICE LAW AND RULES AND SECTIONS THREE HUNDRED TWO
AND THREE HUNDRED SIX OF THE STATE TECHNOLOGY LAW  MAY  BE  RECEIVED  IN
SUCH GRAND JURY PROCEEDINGS AS EVIDENCE OF THE FACTS STATED THEREIN.
  S 6. 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 USE IMMUNITY WAS USED TO OBTAIN THE INDICT-
MENT.  A  MOTION  SEEKING RELIEF ON THIS GROUND SHALL NOT BE ENTERTAINED
BEFORE A MOTION MADE PURSUANT TO SUBDIVISION EIGHT OF SECTION 710.20  OF
THIS CHAPTER, SEEKING SUPPRESSION OF POTENTIAL EVIDENCE AS TO THE USE OF
WHICH  THE  DEFENDANT  POSSESSES  IMMUNITY,  HAS BEEN RESOLVED. UPON THE
GRANTING OF SUCH A MOTION, THE COURT MUST DISMISS THE INDICTMENT; OTHER-
WISE, THE COURT MUST DENY THE MOTION TO DISMISS; OR
  S 7. 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 and subdivision 6 as  renum-
bered  by  chapter  481  of  the laws of 1983, subdivision 7 as added by
chapter 744 of the laws of 1988, 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 OR HER in a criminal action, or (b) claims
that improper identification testimony may be offered against him OR HER
in a criminal action, OR (C) CLAIMS THAT EVIDENCE AS TO THE USE OF WHICH
HE OR SHE POSSESSES IMMUNITY, AS DEFINED IN SUBDIVISION ONE  OF  SECTION
50.10  OF  THIS CHAPTER, MAY BE OFFERED AGAINST HIM OR HER 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

S. 5580                             4

  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 HAS
BEEN CONFERRED ON 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  IMMUNITY  WAS
CONFERRED.
  S 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.