Authorizes the use of closed-circuit television for vulnerable sexual assault witnesses; establishes a procedure for determining who qualifies as a vulnerable sexual assault witness.
STATE OF NEW YORK
________________________________________________________________________
4406
2025-2026 Regular Sessions
IN SENATE
February 4, 2025
___________
Introduced by Sen. MAY -- 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 authorizing
the use of closed-circuit television for vulnerable sexual assault
witnesses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding a new arti-
2 cle 67 to read as follows:
3 ARTICLE 67
4 USE OF CLOSED-CIRCUIT TELEVISION
5 FOR CERTAIN SEXUAL ASSAULT WITNESSES
6 Section 67.00 Definitions.
7 67.10 Closed-circuit television; general rule; declaration of
8 vulnerability.
9 67.20 Closed-circuit television; procedure for application and
10 grounds for determination.
11 67.30 Closed-circuit television; special testimonial procedure.
12 § 67.00 Definitions.
13 As used in this article:
14 1. "Sexual assault witness" means a person fifteen years or older who
15 is or will be called to testify in a criminal proceeding, other than a
16 grand jury proceeding, concerning an offense defined in article one
17 hundred thirty of the penal law or section 255.25, 255.26 or 255.27 of
18 such law which is the subject of such criminal proceeding.
19 2. "Vulnerable sexual assault witness" means a sexual assault witness
20 whom a court has declared to be vulnerable.
21 3. "Testimonial room" means any room, separate and apart from the
22 courtroom, which is furnished comfortably and less formally than a
23 courtroom and from which the testimony of a vulnerable sexual assault
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08618-01-5
S. 4406 2
1 witness can be transmitted to the courtroom by means of live, two-way
2 closed-circuit television.
3 4. "Live, two-way closed-circuit television" means a simultaneous
4 transmission, by closed-circuit television, or other electronic means,
5 between the courtroom and the testimonial room in accordance with the
6 provisions of section 67.30 of this article.
7 5. "Operator" means the individual authorized by the court to operate
8 the closed-circuit television equipment used in accordance with the
9 provisions of this article.
10 6. "A position of authority with respect to a witness" means when such
11 person is a parent, guardian or other person responsible for the custody
12 or care of such witness at the relevant time.
13 7. "Support person" means a parent, guardian, spouse, or family member
14 who is not the defendant in the pending criminal action. A support
15 person shall also include a sexual assault witness's therapist, attor-
16 ney, or an advocate associated with programs enrolled in the state's
17 victim advocacy program.
18 § 67.10 Closed-circuit television; general rule; declaration of vulner-
19 ability.
20 1. A sexual assault witness shall be declared vulnerable when the
21 court, in accordance with the provisions of section 67.20 of this arti-
22 cle, determines by clear and convincing evidence that it is likely that
23 such sexual assault witness will suffer serious mental or emotional harm
24 if required to testify at a criminal proceeding without the use of live,
25 two-way closed-circuit television and that the use of such live, two-way
26 closed-circuit television will diminish the likelihood or extent of such
27 harm.
28 2. When the court declares a sexual assault witness to be vulnerable,
29 it shall, except as provided in subdivision four of section 67.30 of
30 this article, authorize the taking of the testimony of the vulnerable
31 sexual assault witness from the testimonial room by means of live, two-
32 way closed-circuit television. Under no circumstances shall the
33 provisions of this article be construed to authorize a closed-circuit
34 television system by which events in the courtroom are not transmitted
35 to the testimonial room during the testimony of the vulnerable sexual
36 assault witness.
37 3. When a court declares a sexual assault witness to be vulnerable, it
38 shall allow such sexual assault witness to have a support person avail-
39 able to them in the testimonial room. If such sexual assault witness
40 does not have a support person readily available to them, the court
41 shall provide a victim advocate for the sexual assault witness.
42 4. Nothing herein shall be construed to preclude the court from exer-
43 cising its power to close the courtroom or from exercising any authority
44 it otherwise may have to protect the well-being of a witness and the
45 rights of the defendant.
46 § 67.20 Closed-circuit television; procedure for application and grounds
47 for determination.
48 1. Prior to the commencement of a criminal proceeding, other than a
49 grand jury proceeding, either party may apply to the court for an order
50 declaring that a sexual assault witness is vulnerable.
51 2. A sexual assault witness should be declared vulnerable when the
52 court, in accordance with the provisions of this section, determines by
53 clear and convincing evidence that the sexual assault witness would
54 suffer serious mental or emotional harm that would substantially impair
55 the sexual assault witness' ability to communicate with the finder of
56 fact without the use of live, two-way closed-circuit television.
S. 4406 3
1 3. A motion pursuant to subdivision one of this section must be made
2 in writing at least eight days before the commencement of trial or other
3 criminal proceeding upon reasonable notice to the other party and with
4 an opportunity to be heard.
5 4. The motion papers must state the basis for the motion and must
6 contain sworn allegations of fact which, if true, would support a deter-
7 mination by the court that the sexual assault witness is vulnerable.
8 Such allegations may be based upon the personal knowledge of the depo-
9 nent or upon information and belief, provided that, in the latter event,
10 the sources of such information and the grounds for such belief are
11 stated.
12 5. The answering papers may admit or deny any of the alleged facts and
13 may, in addition, contain sworn allegations of fact relevant to the
14 motion, including the rights of the defendant, the need to protect the
15 sexual assault witness and the integrity of the truth-finding function
16 of the trier of fact.
17 6. Unless all material facts alleged in support of the motion made
18 pursuant to subdivision one of this section are conceded, the court
19 shall, in addition to examining the papers and hearing oral argument,
20 conduct an appropriate hearing for the purpose of making findings of
21 fact essential to the determination of the motion. Except as provided in
22 this subdivision, it may subpoena or call and examine witnesses, who
23 must either testify under oath or be permitted to give unsworn testimony
24 pursuant to subdivision two of this section and must authorize the
25 attorneys for the parties to do the same.
26 7. Notwithstanding any other provision of law, the sexual assault
27 witness who is alleged to be vulnerable may not be compelled to testify
28 at such hearing or to submit to any psychological or psychiatric exam-
29 ination. The failure of the sexual assault witness to testify at such
30 hearing shall not be a ground for denying a motion made pursuant to
31 subdivision one of this section. Prior statements made by the sexual
32 assault witness relating to any allegations of conduct constituting an
33 offense defined in article one hundred thirty of the penal law or incest
34 as defined in section 255.25, 255.26 or 255.27 of such law or to any
35 allegation of words or conduct constituting an attempt to prevent,
36 impede or deter the sexual assault witness from cooperating in the
37 investigation or prosecution of the offense shall be admissible at such
38 hearing, provided, however, that a declaration that a sexual assault
39 witness is vulnerable may not be based solely upon such prior state-
40 ments.
41 8. (a) Notwithstanding any of the provisions of article forty-five of
42 the civil practice law and rules, any physician, psychologist, nurse or
43 social worker who has treated a sexual assault witness may testify at a
44 hearing conducted pursuant to subdivision six of this section concerning
45 the treatment of such sexual assault witness as such treatment relates
46 to the issue presented at the hearing, provided that any otherwise
47 applicable statutory privileges concerning communications between the
48 sexual assault witness and such physician, psychologist, nurse or social
49 worker in connection with such treatment shall not be deemed waived by
50 such testimony alone, except to the limited extent of permitting the
51 court alone to examine in camera reports, records or documents, if any,
52 prepared by such physician, psychologist, nurse or social worker. If
53 upon such examination the court determines that such reports, records or
54 documents, or any one or portion thereof, contain information material
55 and relevant to the issue of whether the sexual assault witness is a
S. 4406 4
1 sexual assault witness, the court shall disclose such information to
2 both the attorney for the defendant and the district attorney.
3 (b) At any time after a motion has been made pursuant to subdivision
4 one of this section, upon the demand of the other party the moving party
5 must furnish the demanding party with a copy of any and all of such
6 records, reports or other documents in the possession of such other
7 party and must, in addition, supply the court with a copy of all such
8 reports, records or other documents which are the subject of the demand.
9 At any time after a demand has been made pursuant to this paragraph, the
10 moving party may demand that property of the same kind or character in
11 possession of the party that originally made such demand be furnished to
12 the moving party and, if so furnished, be supplied, in addition, to the
13 court.
14 9. (a) Prior to the commencement of the hearing conducted pursuant to
15 subdivision six of this section, the district attorney shall, subject to
16 a protective order, comply with the provisions of subdivision one of
17 section 245.20 of this chapter as they concern any witness whom the
18 district attorney intends to call at the hearing and the sexual assault
19 witness.
20 (b) Before a defendant calls a witness at such hearing, such defendant
21 must, subject to a protective order, comply with the provisions of
22 subdivision four of section 245.20 of this chapter as they concern all
23 the witnesses the defendant intends to call at such hearing.
24 10. The court may consider, in determining whether there are factors
25 which would cause the sexual assault witness to suffer serious mental or
26 emotional harm, a finding that any one or more of the following circum-
27 stances have been established by clear and convincing evidence:
28 (a) The manner of the commission of the offense of which the defendant
29 is accused was particularly heinous or was characterized by aggravating
30 circumstances.
31 (b) The sexual assault witness is particularly young or otherwise
32 particularly subject to psychological harm on account of a physical or
33 mental condition which existed before the alleged commission of the
34 offense.
35 (c) At the time of the alleged offense, the defendant occupied a posi-
36 tion of authority with respect to the sexual assault witness.
37 (d) The offense or offenses charged were part of an ongoing course of
38 conduct committed by the defendant against the sexual assault witness
39 over an extended period of time.
40 (e) A deadly weapon or dangerous instrument was allegedly used during
41 the commission of the crime.
42 (f) The defendant has inflicted serious physical injury upon the sexu-
43 al assault witness.
44 (g) A threat, express or implied, of physical violence to the sexual
45 assault witness or a third person if the sexual assault witness were to
46 report the incident to any person or communicate information to or coop-
47 erate with a court, grand jury, prosecutor, police officer or peace
48 officer concerning the incident has been made by or on behalf of the
49 defendant.
50 (h) A threat, express or implied, of the incarceration of a parent or
51 guardian of the sexual assault witness, the removal of the sexual
52 assault witness from the family or the dissolution of the family of the
53 sexual assault witness if the sexual assault witness were to report the
54 incident to any person or communicate information to or cooperate with a
55 court, grand jury, prosecutor, police officer or peace officer concern-
56 ing the incident has been made by or on behalf of the defendant.
S. 4406 5
1 (i) A witness other than the sexual assault witness has received a
2 threat of physical violence directed at such witness or to a third
3 person by or on behalf of the defendant.
4 (j) The defendant, at the time of the inquiry, (i) is living in the
5 same household with the sexual assault witness, (ii) has ready access to
6 the sexual assault witness or (iii) is providing substantial financial
7 support for the sexual assault witness.
8 (k) The sexual assault witness has previously been the victim of an
9 offense defined in article one hundred thirty of the penal law or incest
10 as defined in section 255.25, 255.26 or 255.27 of such law.
11 (l) According to expert testimony, the sexual assault witness would be
12 particularly susceptible to psychological harm if required to testify in
13 open court or in the physical presence of the defendant.
14 11. Irrespective of whether a motion was made pursuant to subdivision
15 one of this section, the court, at the request of either party or on its
16 own motion, may decide that a sexual assault witness may be vulnerable
17 based on its own observations that a sexual assault witness who has been
18 called to testify at a criminal proceeding is suffering severe mental or
19 emotional harm and therefore is physically or mentally unable to testify
20 or to continue to testify in open court or in the physical presence of
21 the defendant and that the use of live, two-way closed-circuit tele-
22 vision is necessary to enable the sexual assault witness to testify. If
23 the court so decides, it must conduct the same hearing that subdivision
24 six of this section requires when a motion is made pursuant to subdivi-
25 sion one of this section, and it must make findings of fact pursuant to
26 subdivision ten of this section, before determining that the sexual
27 assault witness is vulnerable.
28 12. In deciding whether a sexual assault witness is vulnerable, the
29 court shall make findings of fact which reflect the causal relationship
30 between the existence of any one or more of the factors set forth in
31 subdivision ten of this section or other relevant factors which the
32 court finds are established and the determination that the sexual
33 assault witness is vulnerable. If the court is satisfied that the sexual
34 assault witness is vulnerable and that, under the facts and circum-
35 stances of the particular case, the defendant's constitutional rights to
36 an impartial jury or of confrontation will not be impaired, it may enter
37 an order granting the application for the use of live, two-way closed-
38 circuit television.
39 13. When the court has determined that a sexual assault witness is a
40 vulnerable sexual assault witness, it shall make a specific finding as
41 to whether placing the defendant and the sexual assault witness in the
42 same room during the testimony of the sexual assault witness will
43 contribute to the likelihood that the sexual assault witness will suffer
44 severe mental or emotional harm. If the court finds that placing the
45 defendant and the sexual assault witness in the same room during the
46 testimony of the sexual assault witness will contribute to the likeli-
47 hood that the sexual assault witness will suffer severe mental or
48 emotional harm, the order entered pursuant to subdivision twelve of this
49 section shall direct that the defendant remain in the courtroom during
50 the testimony of the vulnerable sexual assault witness.
51 § 67.30 Closed-circuit television; special testimonial procedure.
52 1. When the court has entered an order pursuant to section 67.20 of
53 this article, the testimony of the vulnerable sexual assault witness
54 shall be taken in the testimonial room and the image and voice of the
55 vulnerable sexual assault witness, as well as the image of all other
56 persons other than the operator present in the testimonial room, shall
S. 4406 6
1 be transmitted live by means of closed-circuit television to the court-
2 room. The courtroom shall be equipped with monitors sufficient to permit
3 the judge, jury, defendant and attorneys to observe the demeanor of the
4 vulnerable sexual assault witness during such witnesses' testimony.
5 Unless the courtroom has been closed pursuant to court order, the public
6 shall also be permitted to hear the testimony and view the image of the
7 vulnerable sexual assault witness.
8 2. In all instances, the image of the jury shall be simultaneously
9 transmitted to the vulnerable sexual assault witness in the testimonial
10 room. If the court order issued pursuant to section 67.20 of this arti-
11 cle specifies that the vulnerable sexual assault witness shall testify
12 outside the physical presence of the defendant, the image of the defend-
13 ant and the image and voice of the person examining the vulnerable sexu-
14 al assault witness shall also be simultaneously transmitted to the
15 vulnerable sexual assault witness in the testimonial room.
16 3. The operator shall place such operator and the closed-circuit tele-
17 vision equipment in a position that permits the entire testimony of the
18 vulnerable sexual assault witness to be transmitted to the courtroom but
19 limits the ability of the vulnerable sexual assault witness to see or
20 hear the operator or the equipment.
21 4. Notwithstanding any provision of this article, if the court in a
22 particular case involving a vulnerable sexual assault witness determines
23 that there is no live, two-way closed-circuit television equipment
24 available in the court or another court in the county or which can be
25 transported to the court from another county or that such equipment, if
26 available, is technologically inadequate to protect the constitutional
27 rights of the defendant, it shall not permit the use of the closed-cir-
28 cuit television procedures authorized by this article.
29 5. If the order of the court entered pursuant to section 67.20 of this
30 article requires that the defendant remain in the courtroom, the attor-
31 ney for the defendant and the district attorney shall also remain in the
32 courtroom unless the court is satisfied that their presence in the
33 testimonial room will not impede full and private communication between
34 the defendant and such defendant's attorney and will not encourage the
35 jury to draw an inference adverse to the interest of the defendant.
36 6. Upon request of the defendant, the court shall instruct the jury
37 that they are to draw no inference from the use of live, two-way closed-
38 circuit television in the examination of the vulnerable sexual assault
39 witness.
40 7. The vulnerable sexual assault witness shall testify under oath
41 except as specified in subdivision two of section 60.20 of this title.
42 The examination and cross-examination of the vulnerable sexual assault
43 witness shall, in all other respects, be conducted in the same manner as
44 if the vulnerable sexual assault witness had testified in the courtroom.
45 8. When the testimony of the vulnerable sexual assault witness is
46 transmitted from the testimonial room into the courtroom, the court
47 stenographer shall record the testimony in the same manner as if the
48 vulnerable sexual assault witness had testified in the courtroom.
49 § 2. This act shall take effect immediately.
