S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4791
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               March 1, 2017
                                ___________
 
 Introduced  by Sen. SQUADRON -- 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 the electron-
   ic recording of interrogations
 
   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 60.49 to read as follows:
 § 60.49 RULES OF EVIDENCE; ELECTRONIC RECORDING OF STATEMENTS OF DEFEND-
            ANTS.
   1. DEFINITIONS. AS USED IN THIS SECTION:
   (A) "ELECTRONIC RECORDING" MEANS A  CONTEMPORANEOUS  VIDEO  AND  AUDIO
 RECORDING,  OR WHERE VIDEO RECORDING IS IMPRACTICABLE, A CONTEMPORANEOUS
 AUDIO RECORDING.
   (B) "CUSTODIAL INTERROGATION" MEANS ANY QUESTIONING WHICH IS CONDUCTED
 IN A PLACE OF DETENTION OR DURING  WHICH  A  REASONABLE  PERSON  IN  THE
 SUBJECT'S POSITION WOULD CONSIDER HIMSELF OR HERSELF TO BE IN CUSTODY.
   (C)  "PLACE OF DETENTION" MEANS A POLICE STATION, CORRECTIONAL FACILI-
 TY, HOLDING  FACILITY  FOR  PRISONERS,  PROSECUTOR'S  OFFICE,  OR  OTHER
 GOVERNMENT  FACILITY  WHERE  PERSONS ARE HELD IN DETENTION IN CONNECTION
 WITH CRIMINAL CHARGES WHICH HAVE BEEN OR MAY BE FILED AGAINST THEM.
   2. DURING THE PROSECUTION OF A  FELONY,  AN  ORAL,  WRITTEN,  OR  SIGN
 LANGUAGE  STATEMENT OF A DEFENDANT MADE DURING A CUSTODIAL INTERROGATION
 SHALL BE PRESUMED INADMISSIBLE AS EVIDENCE  AGAINST  A  DEFENDANT  IN  A
 CRIMINAL PROCEEDING UNLESS AN ELECTRONIC RECORDING IS MADE OF THE CUSTO-
 DIAL  INTERROGATION  IN  ITS  ENTIRETY, INCLUDING ANY ADMINISTRATION AND
 WAIVER, OR INVOCATION OF RIGHTS, THE RECORDING IS SUBSTANTIALLY ACCURATE
 AND NOT INTENTIONALLY ALTERED, AND ALL INDIVIDUALS WHO SPEAK DURING  THE
 INTERROGATION ARE IDENTIFIED BY NAME ON THE RECORDING.
   3. IF THE COURT FINDS THAT THE DEFENDANT WAS SUBJECTED  TO A CUSTODIAL
 INTERROGATION  IN VIOLATION OF SUBDIVISION TWO OF THIS SECTION, THEN ANY
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03870-01-7

 S. 4791                             2
 
 STATEMENTS MADE BY THE DEFENDANT FOLLOWING THAT CUSTODIAL INTERROGATION,
 EVEN IF OTHERWISE IN COMPLIANCE WITH THIS  SECTION,  ARE  ALSO  PRESUMED
 INADMISSIBLE.
   4. THE PEOPLE MAY REBUT A PRESUMPTION OF INADMISSIBILITY THROUGH CLEAR
 AND CONVINCING EVIDENCE THAT THE STATEMENT WAS BOTH VOLUNTARY AND IF THE
 STATEMENT  IS  INCULPATORY,  WAS NOT MADE UNDER CIRCUMSTANCES CREATING A
 SUBSTANTIAL RISK THAT THE DEFENDANT MIGHT FALSELY INCRIMINATE HIMSELF OR
 HERSELF, AND:
   (A) EXIGENT CIRCUMSTANCES EXISTED  NECESSITATING  INTERROGATION  AT  A
 PLACE  IN A LOCATION OTHER THAN A POLICE STATION, CORRECTIONAL FACILITY,
 HOLDING FACILITY FOR PRISONERS, PROSECUTOR'S OFFICE, OR OTHER GOVERNMENT
 FACILITY WHERE PERSONS ARE HELD IN DETENTION IN CONNECTION WITH CRIMINAL
 CHARGES WHICH HAVE BEEN OR MAY BE FILED  AGAINST  THEM,  AND  WHERE  THE
 REQUISITE RECORDING EQUIPMENT WAS NOT READILY AVAILABLE;
   (B)  THE  ACCUSED  REFUSED  TO HAVE HIS OR HER INTERROGATION ELECTRON-
 ICALLY RECORDED, AND THE REFUSAL ITSELF WAS ELECTRONICALLY RECORDED; OR
   (C) THE FAILURE TO ELECTRONICALLY RECORD AN ENTIRE  INTERROGATION  WAS
 THE  RESULT OF EQUIPMENT FAILURE AND OBTAINING REPLACEMENT EQUIPMENT WAS
 NOT FEASIBLE.
   5. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISIONS TWO, THREE AND  FOUR
 OF  THIS  SECTION, THE COURT MAY ADMIT A STATEMENT IF IT BELIEVES, BASED
 ON A SHOWING OF GOOD CAUSE BY THE PEOPLE, THAT SUPPRESSION OF THE STATE-
 MENT IS TOO HARSH A REMEDY; THE COURT MUST THEN INSTRUCT THE  JURY  THAT
 IT  SHOULD CONSIDER THE FAILURE TO MAKE A RECORDING AS A FACT ADVERSE TO
 THE PEOPLE ON ANY ISSUE OF VOLUNTARINESS, OF THE CONTENT OF  THE  STATE-
 MENT, AND OF WHETHER THE STATEMENT WAS MADE.
   6. NOTHING IN THIS SECTION PRECLUDES THE ADMISSION OF:
   (A) A STATEMENT MADE BY THE ACCUSED IN OPEN COURT AT HIS OR HER TRIAL,
 BEFORE GRAND JURY, OR AT A PRELIMINARY HEARING;
   (B)  A  SPONTANEOUS STATEMENT THAT IS NOT MADE IN RESPONSE TO INTERRO-
 GATION;
   (C) A STATEMENT MADE DURING QUESTIONING THAT IS ROUTINELY ASKED DURING
 THE PROCESSING OF THE ARREST OF THE SUSPECT;
   (D)  A  STATEMENT  MADE  DURING  A  CUSTODIAL  INTERROGATION  THAT  IS
 CONDUCTED OUT-OF-STATE;
   (E)  A  STATEMENT  OBTAINED  BY A FEDERAL LAW ENFORCEMENT OFFICER IN A
 FEDERAL PLACE OF DETENTION;
   (F) A STATEMENT GIVEN AT A TIME WHEN  THE  INTERROGATORS  ARE  UNAWARE
 THAT A FELONY HAS IN FACT OCCURRED; OR
   (G)  A  STATEMENT,  OTHERWISE INADMISSIBLE UNDER THIS SECTION, THAT IS
 USED ONLY FOR IMPEACHMENT AND NOT AS SUBSTANTIVE EVIDENCE.
   7. THE PEOPLE SHALL NOT DESTROY OR ALTER ANY ELECTRONIC RECORDING MADE
 OF A CUSTODIAL INTERROGATION FOR A PERIOD OF TEN  YEARS,  MEASURED  FROM
 THE DATE OF JUDGMENT.
   § 2. Section 710.20 of the criminal procedure law is amended by adding
 a new subdivision 8 to read as follows:
   8.  CONSISTS OF A RECORD OR POTENTIAL TESTIMONY RECITING OR DESCRIBING
 A STATEMENT OBTAINED IN VIOLATION OF SECTION 60.49 OF THIS CHAPTER.
   § 3. Subdivision 1 of section 710.30 of the criminal procedure law, as
 separately amended by chapters 8 and 194 of the laws of 1976, is amended
 to read as follows:
   1.  Whenever the people intend to offer at a trial (a) evidence  of  a
 statement  made  by  a defendant to a public servant, which statement if
 involuntarily made would render the evidence thereof  suppressible  upon
 motion  pursuant to subdivision three of section 710.20 OF THIS ARTICLE,
 or (b) testimony regarding an observation of the defendant either at the

 S. 4791                             3
 
 time or place of the commission of the offense or upon some other  occa-
 sion  relevant  to the case, to be given by a witness who has previously
 identified him as such, they must serve upon the defendant a  notice  of
 such  intention,  specifying the evidence intended to be offered AND, IN
 THE CASE OF A STATEMENT, WHETHER IT WAS ELECTRONICALLY RECORDED.
   § 4. This act shall take effect on the ninetieth day  after  it  shall
 have  become a law, and shall apply to any custodial interrogations that
 take place on and after such date.