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.
STATE OF NEW YORK
________________________________________________________________________
5786
2023-2024 Regular Sessions
IN SENATE
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:
1 Section 1. Subdivision 3 of section 60.45 of the criminal procedure
2 law, as added by section 1 of part VVV of chapter 59 of the laws of
3 2017, is amended to read as follows:
4 3. (a) [Where] When a person is subject to [custodial] interrogation
5 by a public servant [at a detention facility], and the public servant is
6 aware or has reason to suspect that the person interrogated committed a
7 crime under investigation by such public servant or a law enforcement
8 entity associated with such public servant, the entire [custodial]
9 interrogation, including the giving of any required advice of the rights
10 of the individual being questioned, and the waiver of any rights by the
11 individual, shall be recorded by an appropriate video recording device
12 [if the interrogation involves a class A-1 felony, except one defined in
13 article two hundred twenty of the penal law; felony offenses defined in
14 section 130.95 and 130.96 of the penal law; or a felony offense defined
15 in article one hundred twenty-five or one hundred thirty of such law
16 that is defined as a class B violent felony offense in section 70.02 of
17 the penal law. For purposes of this paragraph, the term "detention
18 facility" shall mean a police station, correctional facility, holding
19 facility for prisoners, prosecutor's office or other facility where
20 persons are held in detention in connection with criminal charges that
21 have been or may be filed against them]. The interrogation shall be
22 recorded in a manner such that the persons in the recording are shown
23 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
1 (b) [No confession, admission or other statement shall be subject to a
2 motion to suppress pursuant to subdivision three of section 710.20 of
3 this chapter based solely upon the failure to video record such interro-
4 gation in a detention facility as defined in paragraph (a) of this
5 subdivision. However, where] When the people offer into evidence against
6 a defendant a confession, admission or other statement made by a person
7 [in custody] with respect to [his or her participation or lack of
8 participation in] an alleged offense [specified in paragraph (a) of this
9 subdivision,] that has not been video recorded, the court shall [consid-
10 er the failure to record as a factor, but not as the sole factor, in
11 accordance with paragraph (c) of this subdivision in determining whether
12 such confession, admission or other statement shall be admissible.
13 (c) Notwithstanding the requirement of paragraph (a) of this subdivi-
14 sion, upon a showing of good cause by the prosecutor, the custodial
15 interrogation need not be recorded. Good cause shall include, but not be
16 limited to:
17 (i) If electronic recording equipment malfunctions.
18 (ii) If electronic recording equipment is not available because it was
19 otherwise being used.
20 (iii) If statements are made in response to questions that are
21 routinely asked during arrest processing.
22 (iv) If the statement is spontaneously made by the suspect and not in
23 response to police questioning.
24 (v) If the statement is made during an interrogation that is conducted
25 when the interviewer is unaware that a qualifying offense has occurred.
26 (vi) If the statement is made at a location other than the "interview
27 room" because the suspect cannot be brought to such room, e.g., the
28 suspect is in a hospital or the suspect is out of state and that state
29 is not governed by a law requiring the recordation of an interrogation.
30 (vii) If the statement is made after a suspect has refused to partic-
31 ipate in the interrogation if it is recorded, and appropriate effort to
32 document such refusal is made.
33 (viii) If such statement is not recorded as a result of an inadvertent
34 error or oversight, not the result of any intentional conduct by law
35 enforcement personnel.
36 (ix) If it is law enforcement's reasonable belief that such recording
37 would jeopardize the safety of any person or reveal the identity of a
38 confidential informant.
39 (x) If such statement is made at a location not equipped with a video
40 recording device and the reason for using that location is not to
41 subvert the intent of the law. For purposes of this section, the term
42 "location" shall include those locations specified in paragraph (b) of
43 subdivision four of section 305.2 of the family court act.
44 (d) In the event the court finds that the people have not shown good
45 cause for the non-recording of the confession, admission, or other
46 statement, but determines that a non-recorded confession, admission or
47 other statement is nevertheless admissible because it was voluntarily
48 made then, upon request of the defendant, the court must instruct the
49 jury that the people's failure to record the defendant's confession,
50 admission or other statement as required by this section may be weighed
51 as a factor, but not as the sole factor, in determining whether such
52 confession, admission or other statement was voluntarily made, or was
53 made at all.
54 (e) Video recording as required by this section shall be conducted in
55 accordance with standards established by rule of the division of crimi-
S. 5786 3
1 nal justice services] exclude such confession, admission or other state-
2 ment from use as evidence at trial or at any pretrial hearing.
3 § 2. Subdivisions 5-a and 8 of section 305.2 of the family court act,
4 subdivision 5-a as added and subdivision 8 as amended by chapter 299 of
5 the laws of 2020, are amended to read as follows:
6 5-a. [Where] When at any time a child is subject to interrogation [at
7 a facility designated by the chief administrator of the courts as a
8 suitable place for the questioning of juveniles pursuant to subdivision
9 four of this section,] by a public servant and the public servant is
10 aware or has reason to suspect that the child interrogated committed an
11 act that would be a crime if committed by an adult and which is under
12 investigation by such public servant or a law enforcement entity associ-
13 ated with such public servant, the entire interrogation, including the
14 giving of any required notice to the child as to his or her rights and
15 the child's waiver of any rights, shall be video recorded [in a manner
16 consistent with standards established by rule of the division of crimi-
17 nal justice services pursuant to paragraph (e)] and governed in accord-
18 ance with the provisions of subdivision three of section 60.45 of the
19 criminal procedure law. The interrogation shall be recorded in a manner
20 such that the persons in the recording are [identifiable] shown and the
21 speech is intelligible. A copy of the recording shall be subject to
22 discovery pursuant to section 331.2 of this article. This subdivision
23 shall not apply to a statement made to the probation service, in accord-
24 ance with subdivision seven of section 308.1 of this part, except when
25 such statement may be admissible under such subdivision seven of section
26 308.1.
27 8. In determining the suitability of questioning and determining the
28 reasonable period of time for questioning such a child, the child's age,
29 the presence or absence of his or her parents or other persons legally
30 responsible for his or her care, notification pursuant to subdivision
31 three of this section and, where the child has been interrogated at a
32 facility designated by the chief administrator of the courts as a suit-
33 able place for the questioning of juveniles, whether the interrogation
34 was in compliance with the video-recording and disclosure requirements
35 of subdivision five-a of this section shall be included among relevant
36 considerations.
37 § 3. Subdivision 3 of section 344.2 of the family court act, as
38 amended by chapter 299 of the laws of 2020, is amended to read as
39 follows:
40 3. [Where a respondent] When at any time a child is subject to inter-
41 rogation by a public servant [at a facility specified in subdivision
42 four of section 305.2 of this article,] and the public servant is aware
43 or has reason to suspect that the child interrogated committed an act
44 that would constitute a crime if committed by an adult and which is
45 under investigation by such public servant or a law enforcement entity
46 associated with such public servant, the entire [custodial] interro-
47 gation, including the giving of any required [advice of the] notice to
48 this child as to his or her rights [of the individual being questioned,]
49 and [the] his or her waiver of any rights [by the individual], shall be
50 video recorded and governed in [a manner consistent with standards
51 established by rule of the division of criminal justice services pursu-
52 ant to paragraph (e)] accordance with the provisions of subdivision
53 three of section 60.45 of the criminal procedure law. The interrogation
54 shall be recorded in a manner such that the persons in the recording are
55 [identifiable] shown and the speech is intelligible. A copy of the
56 recording shall be subject to discovery pursuant to section 331.2 of
S. 5786 4
1 this article. This subdivision shall not apply to a statement made to
2 the probation service, in accordance with subdivision seven of section
3 308.1 of this article, except when such statement may be admissible
4 under such subdivision seven of section 308.1.
5 § 4. This act shall take effect on the ninetieth day after it shall
6 have become a law.
