S T A T E O F N E W Y O R K
________________________________________________________________________
3087
2015-2016 Regular Sessions
I N S E N A T E
February 2, 2015
___________
Introduced by Sen. YOUNG -- 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 authorizing
the use of closed-circuit television for vulnerable domestic violence
victim witnesses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Article 65 of the criminal procedure law, as added by chap-
ter 505 of the laws of 1985, subdivision 1 of section 65.00, subdivision
7 and paragraph (k) of subdivision 10 of section 65.20 as amended by
chapter 320 of the laws of 2006, subdivision 1 of section 65.10 and the
opening paragraph of subdivision 10 of section 65.20 as amended, subdi-
vision 2 of section 65.20 as added, and subdivisions 3, 4, 5, 6, 7, 8,
9, 10, 11, 12 and 13 of section 65.20 as renumbered by chapter 548 of
the laws of 2007, and subdivisions 11 and 12 of section 65.20 as
amended by chapter 455 of the laws of 1991, is amended to read as
follows:
ARTICLE 65
USE OF CLOSED-CIRCUIT TELEVISION FOR
CERTAIN [CHILD] WITNESSES
Section 65.00 Definitions.
65.10 Closed-circuit television; general rule; declaration of
vulnerability.
65.20 Closed-circuit television; procedure for application and
grounds for determination.
65.30 Closed-circuit television; special testimonial [proce-
dure] PROCEDURES.
S 65.00 Definitions.
As used in this article:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05952-01-5
S. 3087 2
1. "Child witness" means a person fourteen years old or less who is or
will be called to testify in a criminal proceeding, other than a grand
jury proceeding, concerning an offense defined in article one hundred
thirty of the penal law or section 255.25, 255.26 or 255.27 of such law
which is the subject of such criminal proceeding.
2. "DOMESTIC VIOLENCE VICTIM WITNESS" MEANS AN INDIVIDUAL WHO IS A
VICTIM OF A FAMILY OFFENSE, AS DEFINED IN SUBDIVISION ONE OF SECTION
530.11 OF THIS CHAPTER, OR AN OFFENSE COMMITTED BY A MEMBER OF SUCH
INDIVIDUAL'S IMMEDIATE FAMILY AS DEFINED IN SUBDIVISION FOUR OF SECTION
120.40 OF THE PENAL LAW.
3. "Vulnerable [child] witness" means a child witness OR A DOMESTIC
VIOLENCE VICTIM WITNESS whom a court has declared to be vulnerable.
[3.] 4. "Testimonial room" means any room, separate and apart from the
courtroom, which is furnished comfortably and less formally than a
courtroom and from which the testimony of a vulnerable child witness can
be transmitted to the courtroom by means of live, two-way closed-circuit
television.
[4.] 5. "Live, two-way closed-circuit television" means a simultaneous
transmission, by closed-circuit television, or other electronic means,
between the courtroom and the testimonial room in accordance with the
provisions of section 65.30 OF THIS ARTICLE.
[5.] 6. "Operator" means the individual authorized by the court to
operate the closed-circuit television equipment used in accordance with
the provisions of this article.
[6.] 7. A person occupies "a position of authority with respect to a
child" when he or she is a parent, guardian or other person responsible
for the custody or care of [the] A child at the relevant time or is any
other person who maintains an ongoing personal relationship with such
parent, guardian or other person responsible for custody or care, which
relationship involves his or her living, or his or her frequent and
repeated presence, in the same household or premises as the child.
S 65.10 Closed-circuit television; general rule; declaration of vulner-
ability.
1. A child witness OR DOMESTIC VIOLENCE VICTIM WITNESS shall be
declared vulnerable when the court, in accordance with the provisions of
section 65.20 OF THIS ARTICLE, determines by clear and convincing
evidence that it is likely that such child witness OR SUCH DOMESTIC
VIOLENCE VICTIM WITNESS will suffer serious mental or emotional harm if
required to testify at a criminal proceeding without the use of live,
two-way closed-circuit television and that the use of such live, two-way
closed-circuit television will diminish the likelihood or extent of,
such harm.
2. When the court declares a child witness OR A DOMESTIC VIOLENCE
VICTIM WITNESS to be vulnerable, it shall, except as provided in subdi-
vision four of section 65.30 OF THIS ARTICLE, authorize the taking of
the testimony of the vulnerable [child] witness from the testimonial
room by means of live, two-way closed-circuit television. Under no
circumstances shall the provisions of this article be construed to
authorize a closed-circuit television system by which events in the
courtroom are not transmitted to the testimonial room during the testi-
mony of the vulnerable [child] witness.
3. Nothing [herein] IN THIS ARTICLE shall be [contrued] CONSTRUED to
preclude the court from exercising its power to close the courtroom or
from exercising any authority it otherwise may have to protect the well-
being of a witness and the rights of the defendant.
S. 3087 3
S 65.20 Closed-circuit television; procedure for application and grounds
for determination.
1. Prior to the commencement of a criminal proceeding; other than a
grand jury proceeding, either party may apply to the court for an order
declaring that a child witness OR A DOMESTIC VIOLENCE VICTIM WITNESS is
vulnerable.
2. A child witness OR A DOMESTIC VIOLENCE VICTIM WITNESS should be
declared vulnerable when the court, in accordance with the provisions of
this section, determines by clear and convincing evidence that [the
child] SUCH witness would suffer serious mental or emotional harm that
would substantially impair the [child] witness' ability to communicate
with the finder of fact without the use of live, two-way closed-circuit
television.
3. A motion pursuant to subdivision one of this section must be made
in writing at least eight days before the commencement of trial or other
criminal proceeding upon reasonable notice to the other party and with
an opportunity to be heard.
4. The motion papers must state the basis for the motion and must
contain sworn allegations of fact which, if true, would support a deter-
mination by the court that the child witness OR THE DOMESTIC VIOLENCE
VICTIM WITNESS is vulnerable. Such allegations may be based upon the
personal knowledge of the deponent or upon information and belief,
provided that, in the latter event, the sources of such information and
the grounds for such belief are stated.
5. The answering papers may admit or deny any of the alleged facts and
may, in addition, contain sworn allegations of fact relevant to the
motion, including the rights of the defendant, the need to protect the
child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS and the integrity
of the truth-finding function of the trier of fact.
6. Unless all material facts alleged in support of the motion made
pursuant to subdivision one of this section are conceded, the court
shall, in addition to examining the papers and hearing oral argument,
conduct an appropriate hearing for the purpose of making findings of
fact essential to the determination of the motion. Except as provided in
subdivision [six] SEVEN of this section, it may subpoena or call and
examine witnesses, who must either testify under oath or be permitted to
give unsworn testimony pursuant to subdivision two of section 60.20 OF
THIS TITLE and must authorize the attorneys for the parties to do the
same.
7. Notwithstanding any other provision of law, the child witness OR
THE DOMESTIC VIOLENCE VICTIM WITNESS who is alleged to be vulnerable may
not be compelled to testify at such hearing or to submit to any psycho-
logical or psychiatric examination. The failure of the child witness OR
THE DOMESTIC VIOLENCE VICTIM WITNESS to testify at such hearing shall
not be a ground for denying a motion made pursuant to subdivision one of
this section. Prior statements made by the child witness relating to any
allegations of conduct constituting an offense defined in article one
hundred thirty of the penal law or incest as defined in section 255.25,
255.26 or 255.27 of such law, or PRIOR STATEMENTS MADE BY THE CHILD
WITNESS OR THE DOMESTIC VIOLENCE VICTIM WITNESS RELATING to any allega-
tion of words or conduct constituting an attempt to prevent, impede or
deter [the child] SUCH witness from cooperating in the investigation or
prosecution of the offense shall be admissible at such hearing,
provided, however, that a declaration that a child witness OR A DOMESTIC
VIOLENCE VICTIM WITNESS is vulnerable may not be based solely upon such
prior statements.
S. 3087 4
8. (a) Notwithstanding any of the provisions of article forty-five of
the civil practice law and rules, any physician, psychologist, nurse or
social worker who has treated a child witness OR A DOMESTIC VIOLENCE
VICTIM WITNESS may testify at a hearing conducted pursuant to subdivi-
sion [five] SIX of this section concerning the treatment of such child
witness OR SUCH DOMESTIC VIOLENCE VICTIM WITNESS as such treatment
relates to the issue presented at the hearing, provided that any other-
wise applicable statutory privileges concerning communications between
the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS and such
physician, psychologist, nurse or social worker in connection with such
treatment shall not be deemed waived by such testimony alone, except to
the limited extent of permitting the court alone to examine in camera
reports, records or documents, if any, prepared by such physician,
psychologist, nurse or social worker. If upon such examination the court
determines that such reports, records or documents, or any one or
portion thereof, contain information material and relevant to the issue
of whether the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS is
a vulnerable [child] witness, the court shall disclose such information
to both the attorney for the defendant and the district attorney.
(b) At any time after a motion has been made pursuant to subdivision
one of this section, upon the demand of the other party the moving party
must furnish the demanding party with a copy of any and all of such
records, reports or other documents in the possession of such other
party and must, in addition, supply the court with a copy of all such
reports, records or other documents which are the subject of the demand.
At any time after a demand has been made pursuant to this paragraph, the
moving party may demand that property of the same kind or character in
possession of the party that originally made such demand be furnished to
the moving party and, if so furnished, be supplied, in addition, to the
court.
9. (a) Prior to the commencement of the hearing conducted pursuant to
subdivision [five] SIX of this section, the district attorney shall,
subject to a protective order, comply with the provisions of subdivision
one of section 240.45 of this chapter as they concern any witness whom
the district attorney intends to call at the hearing and the child
witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS.
(b) Before a defendant calls a witness at such hearing, he or she
must, subject to a protective order, comply with the provisions of
subdivision two of section 240.45 of this chapter as they concern all
the witnesses the defendant intends to call at such hearing.
10. The court may consider, in determining whether there are factors
which would cause the child witness OR THE DOMESTIC VIOLENCE VICTIM
WITNESS to suffer serious mental or emotional harm, a finding that any
one or more of the following circumstances have been established by
clear and convincing evidence:
(a) The manner of the commission of the offense of which the defendant
is accused was particularly heinous or was characterized by aggravating
circumstances.
(b) The child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS is
particularly young or otherwise particularly subject to psychological
harm on account of a physical or mental condition which existed before
the alleged commission of the offense.
(c) At the time of the alleged offense, the defendant occupied a posi-
tion of authority with respect to the child witness.
S. 3087 5
(d) The offense or offenses charged were part of an ongoing course of
conduct committed by the defendant against the child witness OR THE
DOMESTIC VIOLENCE VICTIM WITNESS over an extended period of time.
(e) A deadly weapon or dangerous instrument was allegedly used during
the commission of the crime.
(f) The defendant has inflicted serious physical injury upon the child
witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS.
(g) A threat, express or implied, of physical violence to the child
witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS or a third person if
[the child] SUCH witness were to report the incident to any person or
communicate information to or cooperate with a court, grand jury, prose-
cutor, police officer or peace officer concerning the incident has been
made by or on behalf of the defendant.
(h) A threat, express or implied, of the incarceration of a parent or
guardian of the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS,
the removal of the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS
from the family or the dissolution of the family of the child witness OR
THE DOMESTIC VIOLENCE VICTIM WITNESS if [the child] SUCH witness were
to report the incident to any person or communicate information to or
cooperate with a court, grand jury, prosecutor, police officer or peace
officer concerning the incident has been made by or on behalf of the
defendant.
(i) A witness other than the child witness OR THE DOMESTIC VIOLENCE
VICTIM WITNESS has received a threat of physical violence directed at
such witness or to a third person by or on behalf of the defendant.
(j) The defendant, at the time of the inquiry, (i) is living in the
same household with the child witness OR THE DOMESTIC VIOLENCE VICTIM
WITNESS, (ii) has ready access to the child witness OR THE DOMESTIC
VIOLENCE VICTIM WITNESS or (iii) is providing substantial financial
support for the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS.
(k) The child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS has
previously been the victim of an offense defined in article one hundred
thirty of the penal law or incest as defined in section 255.25, 255.26
or 255.27 of such law.
(l) According to expert testimony, the child witness OR THE DOMESTIC
VIOLENCE VICTIM WITNESS would be particularly [suceptible] SUSCEPTIBLE
to psychological harm if required to testify in open court or in the
physical presence of the defendant.
11. Irrespective of whether a motion was made pursuant to subdivision
one of this section, the court, at the request of either party or on its
own motion, may decide that a child witness OR A DOMESTIC VIOLENCE
VICTIM WITNESS may be vulnerable based on its own observations that a
child witness OR A DOMESTIC VIOLENCE VICTIM WITNESS who has been called
to testify at a criminal proceeding is suffering severe mental or
emotional harm and therefore is physically or mentally unable to testify
or to continue to testify in open court or in the physical presence of
the defendant and that the use of live, two-way closed-circuit tele-
vision is necessary to enable [the child] SUCH witness to testify. If
the court so decides, it must conduct the same hearing that subdivision
[five] SIX of this section requires when a motion is made pursuant to
subdivision one of this section, and it must make findings of fact
pursuant to subdivisions [nine] TEN and [eleven] TWELVE of this section,
before determining that the child witness OR THE DOMESTIC VIOLENCE
VICTIM WITNESS is vulnerable.
12. In deciding whether a child witness OR THE DOMESTIC VIOLENCE
VICTIM WITNESS is vulnerable, the court shall make findings of fact
S. 3087 6
which reflect the causal relationship between the existence of any one
or more of the factors set forth in subdivision [nine] TEN of this
section or other relevant factors which the court finds are established
and the determination that the child witness OR THE DOMESTIC VIOLENCE
VICTIM WITNESS is vulnerable. If the court is satisfied that the child
witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS is vulnerable and that,
under the facts and circumstances of the particular case, the defend-
ant's constitutional rights to an impartial jury or of confrontation
will not be impaired, it may enter an order granting the application for
the use of live, two-way closed-circuit television.
13. When the court has determined that a child witness OR A DOMESTIC
VIOLENCE VICTIM WITNESS is a vulnerable [child] witness, it shall make a
specific finding as to whether placing the defendant and the child
witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS in the same room during
the testimony of the child witness OR THE DOMESTIC VIOLENCE VICTIM
WITNESS will contribute to the likelihood that [the child] SUCH witness
will suffer severe mental or emotional harm. If the court finds that
placing the defendant and the child witness OR THE DOMESTIC VIOLENCE
VICTIM WITNESS in the same room during the testimony of the child
witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS will contribute to the
likelihood that [the child] SUCH witness will suffer severe mental or
emotional harm, the order entered pursuant to subdivision [eleven]
TWELVE of this section shall direct that the defendant remain in the
courtroom during the testimony of the vulnerable [child] witness.
S 65.30 Closed-circuit television; special testimonial procedures.
1. When the court has entered an order pursuant to section 65.20 OF
THIS ARTICLE, the testimony of the vulnerable [child] witness shall be
taken in the testimonial room and the image and voice of the vulnerable
[child] witness, as well as the image of all other persons other than
the operator present in the testimonial room, shall be transmitted live
by means of closed-circuit television to the courtroom. The courtroom
shall be equipped with monitors sufficient to permit the judge, jury,
defendant and attorneys to observe the demeanor of the vulnerable
[child] witness during his or her testimony. Unless the courtroom has
been closed pursuant to court order, the public shall also be permitted
to hear the testimony and view the image of the vulnerable [child]
witness.
2. In all instances, the image of the jury shall be simultaneously
transmitted to the vulnerable [child] witness in the testimonial room.
If the court order issued pursuant to section 65.20 OF THIS ARTICLE
specifies that the vulnerable [child] witness shall testify outside the
physical presence of the defendant, the image of the defendant and the
image and voice of the person examining the vulnerable [child] witness
shall also be simultaneously transmitted to the vulnerable [child]
witness in the testimonial room.
3. The operator shall place herself or himself and the closed-circuit
television equipment in a position that permits the entire testimony of
the vulnerable [child] witness to be transmitted to the courtroom but
limits the ability of the vulnerable [child] witness to see or hear the
operator or the equipment.
4. Notwithstanding any provision of this article, if the court in a
particular case involving a vulnerable [child] witness determines that
there is no live, two-way closed-circuit television equipment available
in the court or another court in the county or which can be transported
to the court from another county or that such equipment, if available,
is technologically inadequate to protect the constitutional rights of
S. 3087 7
the defendant, it shall not permit the use of the closed-circuit tele-
vision procedures authorized by this article.
5. If the order of the court entered pursuant to section 65.20 OF THIS
ARTICLE requires that the defendant remain in the courtroom, the attor-
ney for the defendant and the district attorney shall also remain in the
courtroom unless the court is satisfied that their presence in the
testimonial room will not impede full and private communication between
the defendant and his or her attorney and will not encourage the jury to
draw an inference adverse to the interest of the defendant.
6. Upon request of the defendant, the court shall instruct the jury
that they are to draw no inference from the use of live, two-way closed-
circuit television in the examination of the vulnerable [child] witness.
7. The vulnerable [child] witness shall testify under oath except as
specified in subdivision two of section 60.20 OF THIS TITLE. The exam-
ination and cross-examination of the vulnerable [child] witness shall,
in all other respects, be conducted in the same manner as if the vulner-
able [child] witness had testified in the courtroom.
8. When the testimony of the vulnerable [child] witness is transmitted
from the testimonial room into the courtroom, the court stenographer
shall record the [textimony] TESTIMONY in the same manner as if the
vulnerable [child] witness had testified in the courtroom.
S 2. This act shall take effect immediately and shall apply to all
criminal actions and proceedings commenced prior to the effective date
of this act but still pending on such date as well as all criminal
actions and proceedings commenced on or after such effective date.
Provided that the amendments to article 65 of the criminal procedure
law, made by section one of this act, shall not affect the expiration
and repeal of such article and shall be deemed repealed therewith.
