Senate Bill S1077

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1077
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 6, 2017
                                ___________
 
 Introduced  by Sen. CARLUCCI -- 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 providing  an
   exception  to  the  hearsay  rule to allow testimony from persons with
   developmental disabilities

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    The  criminal  procedure law is amended by adding a new
 section 60.77 to read as follows:
 § 60.77 STATEMENTS OF PERSONS WITH DEVELOPMENTAL  DISABILITIES;  HEARSAY
           EXCEPTION.
   1.  AN  OUT-OF-COURT  STATEMENT  MADE BY A PERSON WITH A DEVELOPMENTAL
 DISABILITY, AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF  THE
 MENTAL  HYGIENE LAW, NOT OTHERWISE ADMISSIBLE BY A STATUTE OR COURT RULE
 THAT PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY IS ADMISSIBLE  IN
 ANY CRIMINAL OR DELINQUENCY PROCEEDING IN WHICH THE PERSON IS ALLEGED TO
 HAVE BEEN A VICTIM IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION
 ARE SATISFIED.
   2. (A) AN OUT-OF-COURT STATEMENT MADE BY A PERSON WITH A DEVELOPMENTAL
 DISABILITY,  AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE
 MENTAL HYGIENE LAW, THAT DESCRIBES ALL OR PART OF AN  OFFENSE  DESCRIBED
 IN  PARAGRAPH  (B) OF THIS SUBDIVISION PERFORMED WITH, BY, ON, OR IN THE
 PRESENCE OF THE DECLARANT, AND THAT IS NOT  OTHERWISE  ADMISSIBLE  BY  A
 STATUTE  OR  COURT  RULE  THAT PROVIDES AN EXCEPTION TO THE OBJECTION OF
 HEARSAY, IS ADMISSIBLE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING
 IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE SATISFIED.
   (B) THE EXCEPTION DESCRIBED  IN  PARAGRAPH  (A)  OF  THIS  SUBDIVISION
 APPLIES  TO  AN  OUT-OF-COURT STATEMENT MADE BY A PERSON WITH A DEVELOP-
 MENTAL DISABILITY, WHICH STATEMENT DESCRIBES ALL OR PART OF ANY  OF  THE
 FOLLOWING OFFENSES:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01802-01-7
              

 S. 1077                             2
 
   (I)  ANY  OFFENSE DESCRIBED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL
 LAW;
   (II)  LABOR  TRAFFICKING  AS  DESCRIBED IN SECTION 135.35 OF THE PENAL
 LAW;
   (III) AN OFFENSE INVOLVING INCEST  AS  DESCRIBED  IN  SECTION  255.25,
 255.26 OR 255.27 OF THE PENAL LAW;
   (IV) SEX TRAFFICKING AS DESCRIBED IN SECTION 230.34 OF THE PENAL LAW;
   (V)  ANY  OFFENSE  DESCRIBED IN ARTICLE TWO HUNDRED THIRTY-FIVE OF THE
 PENAL LAW;
   (VI) CRIMINAL ATTEMPT TO COMMIT ANY OF  THE  ACTS  SPECIFIED  IN  THIS
 PARAGRAPH.
   3. AN OUT-OF-COURT STATEMENT BY A PERSON WITH A DEVELOPMENTAL DISABIL-
 ITY,  AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE MENTAL
 HYGIENE LAW, THAT DESCRIBES ANY ACT OF CHILD  ABUSE,  CHILD  NEGLECT  OR
 CHILD  MALTREATMENT  TO  WHICH  THE DECLARANT WAS SUBJECTED OR WHICH THE
 DECLARANT WITNESSED, AND THAT IS NOT OTHERWISE ADMISSIBLE BY  A  STATUTE
 OR COURT RULE THAT PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY, IS
 ADMISSIBLE IN EVIDENCE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING
 IN  WHICH  A  CHILD IS ALLEGED TO BE A VICTIM OF CHILD ABUSE, NEGLECT OR
 MALTREATMENT, IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION  ARE
 SATISFIED.
   4.  AN  OUT-OF-COURT  STATEMENT  MADE BY A PERSON WITH A DEVELOPMENTAL
 DISABILITY, AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF  THE
 MENTAL  HYGIENE  LAW, THAT DESCRIBES ALL OR PART OF AN OFFENSE CONTAINED
 IN ARTICLE ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, OR  THAT  DESCRIBES
 AN  ACT  OF  DOMESTIC  VIOLENCE AS DEFINED IN SUBDIVISION ONE OF SECTION
 FOUR HUNDRED EIGHTY-ONE-C OF THE  SOCIAL  SERVICES  LAW,  NOT  OTHERWISE
 ADMISSIBLE  BY  STATUTE  OR COURT RULE THAT PROVIDES AN EXCEPTION TO THE
 OBJECTION OF HEARSAY, IS ADMISSIBLE IN EVIDENCE IN ANY CRIMINAL,  DELIN-
 QUENCY,  OR  CIVIL  PROCEEDING  IF THE CONDITIONS OF SUBDIVISION FIVE OF
 THIS SECTION ARE SATISFIED.
   5. THE EXCEPTIONS TO THE OBJECTION OF HEARSAY  DESCRIBED  IN  SUBDIVI-
 SIONS  ONE,  TWO, THREE AND FOUR OF THIS SECTION SHALL APPLY ONLY IF THE
 COURT FINDS IN A HEARING CONDUCTED OUTSIDE THE PRESENCE OF THE JURY THAT
 THE TIME, CONTENT, AND CIRCUMSTANCES OF THE STATEMENT PROVIDE SUFFICIENT
 SAFEGUARDS OF RELIABILITY; AND EITHER:
   (A) THE STATEMENT IS A NON-TESTIMONIAL STATEMENT; OR
   (B) (I) THE DECLARANT TESTIFIES AT THE PROCEEDINGS; OR
   (II) IF THE DECLARANT IS UNAVAILABLE TO TESTIFY, THE DEFENDANT HAS HAD
 AN OPPORTUNITY TO CROSS-EXAMINE THE DECLARANT IN A  PREVIOUS  PROCEEDING
 AND  THERE  IS CORROBORATIVE EVIDENCE OF THE ACT WHICH IS THE SUBJECT OF
 THE STATEMENT.
   6. IF A STATEMENT IS ADMITTED PURSUANT  TO  THIS  SECTION,  THE  COURT
 SHALL  INSTRUCT  THE  JURY IN THE FINAL WRITTEN INSTRUCTIONS THAT DURING
 THE PROCEEDING THE JURY HEARD EVIDENCE REPEATING A PERSON'S OUT-OF-COURT
 STATEMENT, THAT IT IS FOR THE JURY TO DETERMINE THE WEIGHT AND CREDIT TO
 BE GIVEN THE STATEMENT, AND THAT, IN MAKING THE DETERMINATION, THE  JURY
 SHALL  CONSIDER  THE  NATURE  OF  THE STATEMENT, THE CIRCUMSTANCES UNDER
 WHICH THE STATEMENT WAS MADE, AND ANY OTHER RELEVANT FACTOR.
   7. THE PROPONENT OF THE STATEMENT SHALL GIVE THE ADVERSE PARTY REASON-
 ABLE NOTICE OF HIS OR HER INTENTION  TO  OFFER  THE  STATEMENT  AND  THE
 PARTICULARS OF THE STATEMENT.
   § 2. This act shall take effect immediately.