BILL NUMBER: S8298

SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to business
records in grand jury proceedings

 
PURPOSE OR GENERAL IDEA OF BILL:

To clarify the definition of business records in grand jury proceedings

 
SUMMARY OF PROVISIONS:

Section one: Allows for the legal admissibility of business records as
defined in Rule 4518 of the CPLR

Section two: Clarifies the admissibility of certain business records

Section three: Provides for the effective date

 
              

JUSTIFICATION:

New York State is one of 22 states in America that requires indictment
by grand jury, but it is the only remaining state in the country where a
live witness must appear in the grand jury to authenticate business
records. Currently, the Criminal Procedure Law allows for some records
from certain financial institutions, telephone companies, and internet
service providers to be admitted in the grand jury through a sworn affi-
davit. The law describes how these specific records qualify as "business
records" under the law, meaning that they are routinely created in the
regular operation of a business.  However, this exception applies only
to that small subset of business records, excluding the vast majority of
regularly generated records needed as evidence in a grand jury proceed-
ing in our increasingly technologically-focused world. For example, the
current rule applies to bank statements, but excludes records related to
the purchase of transportation tickets, transactions at major online
retailers, or trips obtained on ride hailing apps. In these cases under
current law, a custodian is brought into the grand jury proceeding sole-
ly to confirm that the record itself is something that is generated and
kept in the regular course of business at their company. This evidenti-
ary requirement is costly and inefficient for both the criminal justice
system, and the private companies that must send a representative to a
New York courtroom to testify in a Grand Jury.

When this law was first instituted, business records were generated by
actual individuals, whereas they are now almost exclusively computer-
generated. Given the ubiquity of digital sources in everyday life, such
as social media, emails, and communication apps, these types of records
that were almost exclusively used in white-collar cases are now critical
evidence is most cases including hate crimes, murder, and human traf-
ficking.  Under this legislation, instead of having a records custodian
from XYZ company fly from California to New York to confirm that a
record a prosecutor seeks to enter into evidence is in fact an XYZ
record taken from XYZ servers the record can be admitted into evidence
in a sworn affidavit that conta▒neElle'same information.

Under the current law, New York's 62 district attorneys' offices are
required to use portions of their budget to accommodate the travel of-
records custodians from various businesses, especially tech companies,
that are headquartered outside of New York. Thousands of taxpayer
dollars are spent by every office to cover the travel expenses necessary
to have a records custodian authenticate business records. Even the
offices that can afford these expenses must be judicious in determining
which cases will be allocated such resources, while other offices simply
do not have the budget to pursue any cases that can only meet the stand-
ard of proof for an indictment through the use of business records. This
leaves fairness and public safety in those communities at the mercy of a
budget line.  This legislation would modernize New York State's prac-
tice, and be more in line with the practices in all other states.

 
LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect immediately.