Senate Bill S1488

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1488
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 9, 2017
                                ___________
 
 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.
   §  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.
              

                                                            LBD01218-01-7

 S. 1488                             2
 
   §  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.
   § 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.
   § 5. Paragraph (g) of subdivision 3 and paragraph (a) of subdivision 8
 of section 190.30 of the criminal procedure law, paragraph (g) of subdi-
 vision  3  as added by chapter 690 of the laws of 2005 and paragraph (a)
 of subdivision 8 as added by chapter  279  of  the  laws  of  2008,  are
 amended,  subdivision  3  is amended by adding a new paragraph (h) and a
 new subdivision 4-a is added to read as follows:
   (g) that person's ownership of, or possessory right in, a credit  card
 account number or debit card account number, and the defendant's lack of
 superior or equal right to use or possession thereof[.];
   (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;

 S. 1488                             3
 
   (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
 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.
   § 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
   §  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-

 S. 1488                             4
 
 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  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.
   § 8. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.