NY State Senate Bill 2023-S5786

Senate Bill S5786

2023-2024 Legislative Session

Enhances criminal investigations and prosecutions in relation to the integrity of statements of those accused of crimes

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Current Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to codes
Mar 16, 2023	referred to codes

co-Sponsors

2023-S5786 (ACTIVE) - Details

See Assembly Version of this Bill:: A5284
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §60.45, CP L; amd §§305.2 & 344.2, Fam Ct Act

2023-S5786 (ACTIVE) - Summary

Enhances criminal investigations and prosecutions in relation to the integrity of statements of those accused of crimes and to promote confidence in the criminal justice system.

2023-S5786 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S5786

SPONSOR: SALAZAR
 
TITLE OF BILL:

An act to amend the criminal procedure law and the family court act, in
relation to statements of those accused of crimes to enhance criminal
investigations and prosecutions and to promote confidence in the crimi-
nal justice system of this state

 
PURPOSE:

To enhance the integrity of the criminal legal system and to prevent
coerced or false confessions.

 
SUMMARY OF PROVISIONS:

Section 1. Amends subdivision 3 of section 60.45 of the criminal proce-
dure law to mandate that all interrogations by a public servant, when
such public servant is aware or has reason to suspect the person inter-
rogated committed a crime under investigation, be video-recorded in
their entirety. The failure to do so shall result in the exclusion of

any confession, admission, or other statement from use as evidence in
any trial or pretrial hearing.

Section 2. Amends subdivisions 5-a and 8 of section 305.2 of the family
court act to comply with the provisions of subdivision 3 of section
60.45 of the criminal procedure law as amended in this act.

Section 3. Amends subdivision 3 of section 344.2 of the family court act
to comply with the provisions of subdivision 3 of section 60.45 of the
criminal procedure law as amended in this act.

Section 4. Establishes an effective date of 90 days after the act
becomes law.

 
JUSTIFICATION:

New York State is third in the country in exonerations, with 319(1).
Fifty-three of the convictions in cases in which the individuals were
later exonerated were caused by coerced, false confessions(2). Coerced,
false confessions have caused 27% of the wrongful convictions in the
cases that ended in DNA exonerations. According to The Innocence
Project, videotaping interrogations from beginning to end, with the
camera recording both law enforcement and the suspect, is a reform that
can reduce wrongful convictions caused by coerced, false confessions(3).
The 2017 legislation, section 1 of part VVV of chapter 59 of the laws of
2017, mandating police videotaping of interrogations in custodial inter-
rogation was a step in the right direction. However, the 2017 legis-
lation made exceptions for homicides, sex offenses, and drug cases,
whereas these are the cases where such protection is most needed. Many
well-known wrongful convictions which turned into exonerations would not
have been prevented under the 2017 law. For example, Huwe Burton, a
sixteen-year old African American youth from the Bronx, spent 17.9 years
wrongfully imprisoned for allegedly killing his mother before he was
exonerated. His three-hour interrogation, in which the police pressured
him, scared him, and repeatedly denied his request to speak to his
father, was not recorded. Subsequent to that, Huwe documented the
confession in writing and through videotaping. He later recanted and
stated that he was coerced, but was convicted anyway(4). Frank Sterling,
a twenty-five year old white man from Monroe County, spent 18 years in
prison before he was exonerated by DNA. After eight hours of interro-
gation, Sterling confessed. Subsequent to that, he agreed to record a
videotaped confession, getting details wrong:  the crime scene, where
the BB gun was, while not knowing how many times the victim was shot.
His recantation did not matter(5). Sterling died after only nine years
of freedoms(6). Jeffrey Deskovic, a white sixteen-year old from Peeks-
kill in Westchester County, spent 16 years in prison for murder and rape
prior to being exonerated by DNA testing. His coerced, false confession,
obtained after 6 1/2 to 7 hours, was not video-taped(7). In the "Exoner-
ated Five" case, five African-American and Latinx youths were wrongfully
convicted of rape, ranging from fourteen to sixteen years old, spent
between 6.6 to 12.3 years prior to being exonerated(8). Recently, a
sixth Central Park Defendant, Steven Lopez, a fifteen year old Latinx
youth from Manhattan, who served 2 1/2 years in prison, was exonerated
(9).

Mandating that custodial interrogations be recorded without exception
does not merely protect the accused. It also protects honest law
enforcement from false allegations of coercion. It makes for better
evidence. It could also result in less pre-trial litigation over volun-
tariness while facilitating the disposition of more cases through plea-
bargains. But, beyond that, it protects society: aside from the devas-
tating impact wrongful conviction has on the accused person and his or
her family, each time the wrong person is convicted, the person who
actually committed the offense is better able to strike again. The actu-
al perpetrator in the Deskovic case, Steven Cunningham, killed a second
victim 3 1/2 years after his first murder.(10). Mark Christie, the actu-
al perpetrator in the Sterling case, killed four year old Kali Ann Poul-
ton approximately 6 years later(11). Serial killer Matias Reyes commit-
ted a slew of rapes and a murder after raping the victim in the Central
Park Five case.(12)

There is also a fiscal impact. Burton was paid $11 million through a
Section 1983 civil tights lawsuit; Sterling received an aggregate of
more than $10 million; Deskovic was paid $24 million; the "Exonerated
Five" were paid $41 million dollars from civil rights lawsuits, and an
additional $3.9 million dollars from New York State. So far, in total
compensation to exonerees in New York State in recent years, in cases
where false confessions had resulted in wrongful convictions, at least
$258,907,000 has been paid out by local governments and the State. While
the exonerees unquestionably deserve that compensation - as there is no
amount of money that could make being wrongfully imprisoned worth it- it
would be far better to not wrongfully convict individuals and for
governmental entities to not have to pay compensation.

Further, if just one wrongful conviction caused by a coerced, false
confession is prevented, that would cover the cost of the recording
equipment. Video-taping all custodial interrogations will make it possi-
ble to review interrogations to ensure that all statements were made
voluntarily; that a suspect truly has guilty knowledge rather than is
being given details by law enforcement whether accidentally or inten-
tionally; will both prevent and detect threats and false promises; will
provide an objective account of an interrogation not subject to the
limits of memory, while preventing law enforcement from leaving unfavor-
able facts out of their testimony.

This bill seeks to prevent wrongful convictions caused by coerced, false
confessions. Therefore, having exceptions for certain types of felonies
and misdemeanors makes no sense. The bright line exclusionary rule is
necessary because otherwise the door is open to subterfuge; to unscrupu-
lous law enforcement officers trying to squeeze into exceptions rather
than to rigorously follow the law that a bright-line rule requires. In
sum, it will breathe more life into the 5th Amendment.

 
LEGISLATIVE HISTORY:

New bill.

 
STATE AND LOCAL FISCAL IMPLICATIONS:

To be determined, but it is clear this bill will save municipalities and
the state significant sums of money.

 
EFFECTIVE DATE:
This act shall take effect 90 days after it becomes law.
1 National Registry of Exonerations  
HTTPS://BIT.LY/3UB2MLL
2 National Registry of Exonerations  
HTTPS://BIT.LY/3NQOGWQ
3 The Innocence Project  
HTTPS://INNOCENCEPROJECT.ORG/ FALSE-CONFES-
SIONS-RECORDING-INTERROGATIONS
4 National Registry of Exonerations
 
HTTPS://WWW.LAW.UMICH.EDU/SPECIAL/EXONERATION/
PAGES/CASEDETAIL.ASPX?CASEID=5485
5 National Registry of Exonerations  
HTTPS://BIT.LY/3FWO7GB
6 Democrat and Chronicle
 
HTTPS://WWW.DEMOCRATANDCHRONICLE.COM/STORY/NEWS/
LOCAL/BLOGS/LAW-AND-DISORDER/2017/07/02/
SENECA-SOUTH-CAROLINA/446593001/
7 National Registry of Exonerations
 
HTTPS://WWW.LAW.UMICH.EDU/SPECIAL/EXONERATION/
PAGES/CASEDETAIL.ASPX?CASEID=3171
8 National Registry of Exonerations
 
HTTPS://WWW.LAW.UMICH.EDU/SPECIAL/EXONERATION/
PAGES/CASEDETAIL.ASPX?CASEID=3610;
 
HTTPS://WWW.LAW.UMICH.EDU/SPECIAL/EXONERATION/
PAGES/CASEDETAIL.ASPX?CASEID=3578;
 
HTTPS://WWW.LAW.UMICH.EDU/SPECIAL/EXONERATION/
PAGES/CASEDETAIL.ASPX?CASEID=3423;
 
HTTPS://WWW.LAW.UMICH.EDU/SPECIAL/EXONERATION/
PAGES/CASEDETAIL.ASPX?CASEID=3761;
 
HTTPS://WWW.LAW.UMICH.EDU/SPECIAL/EXONERATION/
PAGES/CASEDETAIL.ASPX?CASEID=3604
99 National Registry of Exonerations
 
HTTPS://WWW.LAW.UMICH.EDU/SPECIAL/EXONERATION/
PAGES/CASEDETAIL.ASPX?CASEID=6357
1010 WFMYNEWS2  
HTTPS://WWW.WFMYNEWS2.COM/ARTICLE/NEWS/
KILLER-CONFESSES-TO-REPORTER/83-403183790
11 Oregon Advocates.com
 
HTTPS://WWW.OREGONADVOCATES.ORG/GEO/SEARCH/ITEM.311583
12 The Cut  
HTTPS://WWW.THECUT.COM/2019/06/THE-
ATTACKERS-OTHER-VICTIMS-IN-THE-CENTRAL-PARK-FIVE-CASE.HTML

2023-S5786 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5786
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              March 16, 2023
                                ___________
 
 Introduced  by  Sen. SALAZAR -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law and the family court act,  in
   relation  to statements of those accused of crimes to enhance criminal
   investigations and prosecutions and to promote confidence in the crim-
   inal justice system of this state
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision  3 of section 60.45 of the criminal procedure
 law, as added by section 1 of part VVV of chapter  59  of  the  laws  of
 2017, is amended to read as follows:
   3.  (a)  [Where] WHEN a person is subject to [custodial] interrogation
 by a public servant [at a detention facility], AND THE PUBLIC SERVANT IS
 AWARE OR HAS REASON TO SUSPECT THAT THE PERSON INTERROGATED COMMITTED  A
 CRIME  UNDER  INVESTIGATION  BY SUCH PUBLIC SERVANT OR A LAW ENFORCEMENT
 ENTITY ASSOCIATED WITH  SUCH  PUBLIC  SERVANT,  the  entire  [custodial]
 interrogation, including the giving of any required advice of the rights
 of  the individual being questioned, and the waiver of any rights by the
 individual, shall be recorded by an appropriate video  recording  device
 [if the interrogation involves a class A-1 felony, except one defined in
 article  two hundred twenty of the penal law; felony offenses defined in
 section 130.95 and 130.96 of the penal law; or a felony offense  defined
 in  article  one  hundred  twenty-five or one hundred thirty of such law
 that is defined as a class B violent felony offense in section 70.02  of
 the  penal  law.  For  purposes  of  this paragraph, the term "detention
 facility" shall mean a police station,  correctional  facility,  holding
 facility  for  prisoners,  prosecutor's  office  or other facility where
 persons are held in detention in connection with criminal  charges  that
 have  been  or  may  be  filed against them]. THE INTERROGATION SHALL BE
 RECORDED  IN A MANNER SUCH THAT THE PERSONS IN THE RECORDING  ARE  SHOWN
 AND THE SPEECH IS  INTELLIGIBLE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02247-01-3

 S. 5786                             2
 
   (b) [No confession, admission or other statement shall be subject to a
 motion  to  suppress  pursuant to subdivision three of section 710.20 of
 this chapter based solely upon the failure to video record such interro-
 gation in a detention facility as  defined  in  paragraph  (a)  of  this
 subdivision. However, where] WHEN the people offer into evidence AGAINST
 A  DEFENDANT a confession, admission or other statement made by a person
 [in custody] with respect to  [his  or  her  participation  or  lack  of
 participation in] an ALLEGED offense [specified in paragraph (a) of this
 subdivision,] that has not been video recorded, the court shall [consid-
 er  the  failure  to  record as a factor, but not as the sole factor, in
 accordance with paragraph (c) of this subdivision in determining whether
 such confession, admission or other statement shall be admissible.
   (c) Notwithstanding the requirement of paragraph (a) of this  subdivi-
 sion,  upon  a  showing  of  good cause by the prosecutor, the custodial
 interrogation need not be recorded. Good cause shall include, but not be
 limited to:
   (i) If electronic recording equipment malfunctions.
   (ii) If electronic recording equipment is not available because it was
 otherwise being used.
   (iii) If statements  are  made  in  response  to  questions  that  are
 routinely asked during arrest processing.
   (iv)  If the statement is spontaneously made by the suspect and not in
 response to police questioning.
   (v) If the statement is made during an interrogation that is conducted
 when the interviewer is unaware that a qualifying offense has occurred.
   (vi) If the statement is made at a location other than the  "interview
 room"  because  the  suspect  cannot  be brought to such room, e.g., the
 suspect is in a hospital or the suspect is out of state and  that  state
 is not governed by a law requiring the recordation of an interrogation.
   (vii)  If the statement is made after a suspect has refused to partic-
 ipate in the interrogation if it is recorded, and appropriate effort  to
 document such refusal is made.
   (viii) If such statement is not recorded as a result of an inadvertent
 error  or  oversight,  not  the result of any intentional conduct by law
 enforcement personnel.
   (ix) If it is law enforcement's reasonable belief that such  recording
 would  jeopardize  the  safety of any person or reveal the identity of a
 confidential informant.
   (x) If such statement is made at a location not equipped with a  video
 recording  device  and  the  reason  for  using  that location is not to
 subvert the intent of the law. For purposes of this  section,  the  term
 "location"  shall  include those locations specified in paragraph (b) of
 subdivision four of section 305.2 of the family court act.
   (d) In the event the court finds that the people have not  shown  good
 cause  for  the  non-recording  of  the  confession, admission, or other
 statement, but determines that a non-recorded confession,  admission  or
 other  statement  is  nevertheless admissible because it was voluntarily
 made then, upon request of the defendant, the court  must  instruct  the
 jury  that  the  people's  failure to record the defendant's confession,
 admission or other statement as required by this section may be  weighed
 as  a  factor,  but  not as the sole factor, in determining whether such
 confession, admission or other statement was voluntarily  made,  or  was
 made at all.
   (e)  Video recording as required by this section shall be conducted in
 accordance with standards established by rule of the division of  crimi-
 S. 5786                             3

 nal justice services] EXCLUDE SUCH CONFESSION, ADMISSION OR OTHER STATE-
 MENT FROM USE AS EVIDENCE AT TRIAL OR AT ANY PRETRIAL HEARING.
   §  2. Subdivisions 5-a and 8 of section 305.2 of the family court act,
 subdivision 5-a as added and subdivision 8 as amended by chapter 299  of
 the laws of 2020, are amended to read as follows:
   5-a.  [Where] WHEN AT ANY TIME a child is subject to interrogation [at
 a facility designated by the chief administrator  of  the  courts  as  a
 suitable  place for the questioning of juveniles pursuant to subdivision
 four of this section,] BY A PUBLIC SERVANT AND  THE  PUBLIC  SERVANT  IS
 AWARE  OR HAS REASON TO SUSPECT THAT THE CHILD INTERROGATED COMMITTED AN
 ACT THAT WOULD BE A CRIME IF COMMITTED BY AN ADULT AND  WHICH  IS  UNDER
 INVESTIGATION BY SUCH PUBLIC SERVANT OR A LAW ENFORCEMENT ENTITY ASSOCI-
 ATED  WITH  SUCH PUBLIC SERVANT, the entire interrogation, including the
 giving of any required notice to the child as to his or her  rights  and
 the  child's  waiver of any rights, shall be video recorded [in a manner
 consistent with standards established by rule of the division of  crimi-
 nal  justice services pursuant to paragraph (e)] AND GOVERNED IN ACCORD-
 ANCE WITH THE PROVISIONS of subdivision three of section  60.45  of  the
 criminal  procedure law. The interrogation shall be recorded in a manner
 such that the persons in the recording are [identifiable] SHOWN and  the
 speech  is  intelligible.  A  copy  of the recording shall be subject to
 discovery pursuant to section 331.2 of this  article.  THIS  SUBDIVISION
 SHALL NOT APPLY TO A STATEMENT MADE TO THE PROBATION SERVICE, IN ACCORD-
 ANCE  WITH  SUBDIVISION SEVEN OF SECTION 308.1 OF THIS PART, EXCEPT WHEN
 SUCH STATEMENT MAY BE ADMISSIBLE UNDER SUCH SUBDIVISION SEVEN OF SECTION
 308.1.
   8. In determining the suitability of questioning and  determining  the
 reasonable period of time for questioning such a child, the child's age,
 the  presence  or absence of his or her parents or other persons legally
 responsible for his or her care, notification  pursuant  to  subdivision
 three  OF  THIS  SECTION and, where the child has been interrogated at a
 facility designated by the chief administrator of the courts as a  suit-
 able  place  for the questioning of juveniles, whether the interrogation
 was in compliance with the video-recording and  disclosure  requirements
 of  subdivision  five-a of this section shall be included among relevant
 considerations.
   § 3. Subdivision 3 of section  344.2  of  the  family  court  act,  as
 amended  by  chapter  299  of  the  laws  of 2020, is amended to read as
 follows:
   3. [Where a respondent] WHEN AT ANY TIME A CHILD is subject to  inter-
 rogation  by  a  public  servant [at a facility specified in subdivision
 four of section 305.2 of this article,] AND THE PUBLIC SERVANT IS  AWARE
 OR  HAS  REASON  TO SUSPECT THAT THE CHILD INTERROGATED COMMITTED AN ACT
 THAT WOULD CONSTITUTE A CRIME IF COMMITTED BY  AN  ADULT  AND  WHICH  IS
 UNDER  INVESTIGATION  BY SUCH PUBLIC SERVANT OR A LAW ENFORCEMENT ENTITY
 ASSOCIATED WITH SUCH PUBLIC SERVANT,  the  entire  [custodial]  interro-
 gation,  including  the giving of any required [advice of the] NOTICE TO
 THIS CHILD AS TO HIS OR HER rights [of the individual being questioned,]
 and [the] HIS OR HER waiver of any rights [by the individual], shall  be
 VIDEO  recorded  and  governed  in  [a  manner consistent with standards
 established by rule of the division of criminal justice services  pursu-
 ant  to  paragraph  (e)]  ACCORDANCE  WITH THE PROVISIONS of subdivision
 three of section 60.45 of the criminal procedure law. The  interrogation
 shall be recorded in a manner such that the persons in the recording are
 [identifiable]  SHOWN  and  the  speech  is  intelligible. A copy of the
 recording shall be subject to discovery pursuant  to  section  331.2  of
 S. 5786                             4
 
 this  article.  THIS  SUBDIVISION SHALL NOT APPLY TO A STATEMENT MADE TO
 THE PROBATION SERVICE, IN ACCORDANCE WITH SUBDIVISION SEVEN  OF  SECTION
 308.1  OF  THIS  ARTICLE,  EXCEPT  WHEN SUCH STATEMENT MAY BE ADMISSIBLE
 UNDER SUCH SUBDIVISION SEVEN OF SECTION 308.1.
   §  4.  This  act shall take effect on the ninetieth day after it shall
 have become a law.

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Senate Bill S5786

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Sponsored By

Julia Salazar