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A02129 Summary:

BILL NOA02129
 
SAME ASSAME AS S00339
 
SPONSORPeoples-Stokes
 
COSPNSR
 
MLTSPNSR
 
Amd Art 65 65.00 - 65.30, CP L
 
Authorizes use of closed-circuit television for the testimony of domestic violence victim witnesses in a criminal proceeding subject to the same restrictions as are applicable to child witnesses.
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A02129 Actions:

BILL NOA02129
 
01/17/2017referred to codes
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A02129 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A2129
 
SPONSOR: Peoples-Stokes
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to authorizing the use of closed-circuit television for vulner- able domestic violence victim witnesses   PURPOSE OR GENERAL IDEA OF BILL: Article 65 of the criminal procedure law is amended to permit the use of closed circuit television for the testimony of victims of alleged domes- tic violence.   SUMMARY OF SPECIFIC PROVISIONS: Amends article 65 of the criminal procedure law to include a domestic violence victim witness as a vulnerable person who may testify in a criminal proceeding, concerning an offense defined in subdivision 1 of section 530.11 of the criminal procedure law or an offense committed by a member of such individual's immediate family as defined in subdivision 4 of section 120.40 of the penal law.   JUSTIFICATION: Over two-thirds of violent victimizations against women were committed by someone known to them. Approximately 28% were intimates such as husbands or boyfriends, 35% were acquaintances, and the remaining 5% were other relatives. Females accounted for 38% of the hospital emergency department visits for violence-related injuries in 1994 while 84% of these persons were treated for injuries inflicted by intimates. 31,260 women were murdered by an intimate from 1976-1996. Very often, vulnerable witnesses are reluctant to testify about crimes that have been committed against them out of fear; allowing these witnesses to testify in the physical absence of their abuser may help facilitate their willingness to come forward and testify.   PRIOR LEGISLATIVE HISTORY: A.3676 of 2012. A.4338 of 2010. A.7381 of 2013. A.8911 of 2014   FISCAL IMPLICATIONS: Nominal.   EFFECTIVE DATE: This act shall take effect immediately.
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A02129 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2129
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 17, 2017
                                       ___________
 
        Introduced  by  M. of A. PEOPLES-STOKES -- read once and referred 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 domestic violence
          victim witnesses
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Article 65 of the criminal procedure law, as added by chap-
     2  ter  505 of the laws of 1985, subdivision 1 of section 65.00, and subdi-
     3  vision 7 and paragraph (k) of subdivision 10 of section 65.20 as amended
     4  by chapter 320 of the laws of 2006, subdivisions 11 and  12  of  section
     5  65.20  as  amended  by chapter 455 of the laws of 1991, subdivision 1 of
     6  section 65.10 as amended, subdivision 2 of section 65.20 as  added,  the
     7  opening  paragraph  of  subdivision  10 of section 65.20 as amended, and
     8  subdivisions 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of section 65.20  as
     9  renumbered  by  chapter  548  of the laws of 2007, is amended to read as
    10  follows:
    11                                  ARTICLE 65
    12                    USE OF CLOSED-CIRCUIT TELEVISION FOR
    13                          CERTAIN [CHILD] WITNESSES

    14  Section 65.00  Definitions.
    15          65.10  Closed-circuit television; general rule;  declaration  of
    16                   vulnerability.
    17          65.20  Closed-circuit  television; procedure for application and
    18                   grounds for determination.
    19          65.30  Closed-circuit television;  special  testimonial  [proce-
    20                   dure] procedures.
    21  § 65.00 Definitions.
    22    As used in this article:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00103-01-7

        A. 2129                             2
 
     1    1. "Child witness" means a person fourteen years old or less who is or
     2  will  be  called to testify in a criminal proceeding, other than a grand
     3  jury proceeding, concerning an offense defined in  article  one  hundred
     4  thirty  of the penal law or section 255.25, 255.26 or 255.27 of such law
     5  which is the subject of such criminal proceeding.
     6    2.  "Domestic  violence  victim  witness" means an individual who is a
     7  victim of a family offense, as defined in  subdivision  one  of  section
     8  530.11  of  this  chapter,  or  an offense committed by a member of such
     9  individual's immediate family as defined in subdivision four of  section
    10  120.40 of the penal law.
    11    3.  "Vulnerable  [child]  witness" means a child witness or a domestic
    12  violence victim witness whom a court has declared to be vulnerable.
    13    [3.] 4. "Testimonial room" means any room, separate and apart from the
    14  courtroom, which is furnished  comfortably  and  less  formally  than  a
    15  courtroom and from which the testimony of a vulnerable child witness can
    16  be transmitted to the courtroom by means of live, two-way closed-circuit
    17  television.
    18    [4.] 5. "Live, two-way closed-circuit television" means a simultaneous
    19  transmission,  by  closed-circuit television, or other electronic means,
    20  between the courtroom and the testimonial room in  accordance  with  the
    21  provisions of section 65.30 of this article.
    22    [5.]  6.  "Operator"  means  the individual authorized by the court to
    23  operate the closed-circuit television equipment used in accordance  with
    24  the provisions of this article.
    25    [6.]  7.  A person occupies "a position of authority with respect to a
    26  child" when he or she is a parent, guardian or other person  responsible
    27  for  the custody or care of [the] a child at the relevant time or is any
    28  other person who maintains an ongoing personal  relationship  with  such
    29  parent,  guardian or other person responsible for custody or care, which
    30  relationship involves his or her living, or  his  or  her  frequent  and
    31  repeated presence, in the same household or premises as the child.
    32  § 65.10 Closed-circuit  television; general rule; declaration of vulner-
    33            ability.
    34    1. A child witness or a domestic  violence  victim  witness  shall  be
    35  declared vulnerable when the court, in accordance with the provisions of
    36  section  65.20  of  this  article,  determines  by  clear and convincing
    37  evidence that it is likely that such  child  witness  or  such  domestic
    38  violence  victim witness will suffer serious mental or emotional harm if
    39  required to testify at a criminal proceeding without the  use  of  live,
    40  two-way closed-circuit television and that the use of such live, two-way
    41  closed-circuit  television  will  diminish  the likelihood or extent of,
    42  such harm.
    43    2. When the court declares a child  witness  or  a  domestic  violence
    44  victim  witness to be vulnerable, it shall, except as provided in subdi-
    45  vision four of section 65.30 of this article, authorize  the  taking  of
    46  the  testimony  of  the  vulnerable [child] witness from the testimonial
    47  room by means of live, two-way  closed-circuit  television.    Under  no
    48  circumstances  shall  the  provisions  of  this  article be construed to
    49  authorize a closed-circuit television system  by  which  events  in  the
    50  courtroom  are not transmitted to the testimonial room during the testi-
    51  mony of the vulnerable [child] witness.
    52    3. Nothing [herein] in this article shall be [contrued]  construed  to
    53  preclude  the  court from exercising its power to close the courtroom or
    54  from exercising any authority it otherwise may have to protect the well-
    55  being of a witness and the rights of the defendant.

        A. 2129                             3
 
     1  § 65.20 Closed-circuit television; procedure for application and grounds
     2            for determination.
     3    1. Prior to the commencement of a criminal proceeding[;], other than a
     4  grand  jury proceeding, either party may apply to the court for an order
     5  declaring that a child witness or a domestic violence victim witness  is
     6  vulnerable.
     7    2.  A  child  witness  or a domestic violence victim witness should be
     8  declared vulnerable when the court, in accordance with the provisions of
     9  this section, determines by clear and convincing evidence that the child
    10  witness or the domestic violence victim  witness  would  suffer  serious
    11  mental  or  emotional  harm  that  would  substantially impair the child
    12  witness' or the domestic violence victim witness' ability to communicate
    13  with the finder of fact without the use of live, two-way  closed-circuit
    14  television.
    15    3.  A  motion pursuant to subdivision one of this section must be made
    16  in writing at least eight days before the commencement of trial or other
    17  criminal proceeding upon reasonable notice to the other party  and  with
    18  an opportunity to be heard.
    19    4.  The  motion  papers  must  state the basis for the motion and must
    20  contain sworn allegations of fact which, if true, would support a deter-
    21  mination by the court that the child witness or  the  domestic  violence
    22  victim  witness  is  vulnerable.  Such allegations may be based upon the
    23  personal knowledge of the  deponent  or  upon  information  and  belief,
    24  provided  that, in the latter event, the sources of such information and
    25  the grounds for such belief are stated.
    26    5. The answering papers may admit or deny any of the alleged facts and
    27  may, in addition, contain sworn allegations  of  fact  relevant  to  the
    28  motion,  including  the rights of the defendant, the need to protect the
    29  child witness or the domestic violence victim witness and the  integrity
    30  of the truth-finding function of the trier of fact.
    31    6.  Unless  all  material  facts alleged in support of the motion made
    32  pursuant to subdivision one of this  section  are  conceded,  the  court
    33  shall,  in  addition  to examining the papers and hearing oral argument,
    34  conduct an appropriate hearing for the purpose  of  making  findings  of
    35  fact essential to the determination of the motion. Except as provided in
    36  subdivision  [six]  seven  of  this section, it may subpoena or call and
    37  examine witnesses, who must either testify under oath or be permitted to
    38  give unsworn testimony pursuant to subdivision two of section  60.20  of
    39  this  article and must authorize the attorneys for the parties to do the
    40  same.
    41    7. Notwithstanding any other provision of law, the  child  witness  or
    42  the domestic violence victim witness who is alleged to be vulnerable may
    43  not  be compelled to testify at such hearing or to submit to any psycho-
    44  logical or psychiatric examination. The failure of the child witness  or
    45  the  domestic  violence  victim witness to testify at such hearing shall
    46  not be a ground for denying a motion made pursuant to subdivision one of
    47  this section. Prior statements made by the child witness relating to any
    48  allegations of conduct constituting an offense defined  in  article  one
    49  hundred  thirty of the penal law or incest as defined in section 255.25,
    50  255.26 or 255.27 of such law, or prior  statements  made  by  the  child
    51  witness  or the domestic violence victim witness relating to any allega-
    52  tion of words or conduct constituting an attempt to prevent,  impede  or
    53  deter  [the child] such witness from cooperating in the investigation or
    54  prosecution  of  the  offense  shall  be  admissible  at  such  hearing,
    55  provided, however, that a declaration that a child witness or a domestic

        A. 2129                             4
 
     1  violence  victim witness is vulnerable may not be based solely upon such
     2  prior statements.
     3    8.  (a) Notwithstanding any of the provisions of article forty-five of
     4  the civil practice law and rules, any physician, psychologist, nurse  or
     5  social  worker  who  has  treated a child witness or a domestic violence
     6  victim witness may testify at a hearing conducted pursuant  to  subdivi-
     7  sion  [five]  six of this section concerning the treatment of such child
     8  witness or such domestic  violence  victim  witness  as  such  treatment
     9  relates  to the issue presented at the hearing, provided that any other-
    10  wise applicable statutory privileges concerning  communications  between
    11  the  child  witness  or  the  domestic  violence victim witness and such
    12  physician, psychologist, nurse or social worker in connection with  such
    13  treatment  shall not be deemed waived by such testimony alone, except to
    14  the limited extent of permitting the court alone to  examine  in  camera
    15  reports,  records  or  documents,  if  any,  prepared by such physician,
    16  psychologist, nurse or social worker. If upon such examination the court
    17  determines that such reports,  records  or  documents,  or  any  one  or
    18  portion  thereof, contain information material and relevant to the issue
    19  of whether the child witness or the domestic violence victim witness  is
    20  a  vulnerable [child] witness, the court shall disclose such information
    21  to both the attorney for the defendant and the district attorney.
    22    (b) At any time after a motion has been made pursuant  to  subdivision
    23  one of this section, upon the demand of the other party the moving party
    24  must  furnish  the  demanding  party  with a copy of any and all of such
    25  records, reports or other documents in  the  possession  of  such  other
    26  party  and  must,  in addition, supply the court with a copy of all such
    27  reports, records or other documents which are the subject of the demand.
    28  At any time after a demand has been made pursuant to this paragraph, the
    29  moving party may demand that property of the same kind or  character  in
    30  possession of the party that originally made such demand be furnished to
    31  the  moving party and, if so furnished, be supplied, in addition, to the
    32  court.
    33    9. (a) Prior to the commencement of the hearing conducted pursuant  to
    34  subdivision  five  of this section, the district attorney shall, subject
    35  to a protective order, comply with the provisions of subdivision one  of
    36  section  240.45  of  this  chapter  as they concern any witness whom the
    37  district attorney intends to call at the hearing and the  child  witness
    38  or the domestic violence victim witness.
    39    (b)  Before  a  defendant  calls  a witness at such hearing, he or she
    40  must, subject to a protective  order,  comply  with  the  provisions  of
    41  subdivision  two  of  section 240.45 of this chapter as they concern all
    42  the witnesses the defendant intends to call at such hearing.
    43    10. The court may consider, in determining whether there  are  factors
    44  which  would  cause  the  child  witness or the domestic violence victim
    45  witness to suffer serious mental or emotional harm, a finding  that  any
    46  one  or  more  of  the  following circumstances have been established by
    47  clear and convincing evidence:
    48    (a) The manner of the commission of the offense of which the defendant
    49  is accused was particularly heinous or was characterized by  aggravating
    50  circumstances.
    51    (b)  The  child  witness  or  the  domestic violence victim witness is
    52  particularly young or otherwise particularly  subject  to  psychological
    53  harm  on  account of a physical or mental condition which existed before
    54  the alleged commission of the offense.
    55    (c) At the time of the alleged offense, the defendant occupied a posi-
    56  tion of authority with respect to the child witness.

        A. 2129                             5

     1    (d) The offense or offenses charged were part of an ongoing course  of
     2  conduct  committed  by  the  defendant  against the child witness or the
     3  domestic violence victim witness over an extended period of time.
     4    (e)  A deadly weapon or dangerous instrument was allegedly used during
     5  the commission of the crime.
     6    (f) The defendant has inflicted serious physical injury upon the child
     7  witness or the domestic violence victim witness.
     8    (g) A threat, express or implied, of physical violence  to  the  child
     9  witness  or  the  domestic violence victim witness, or a third person if
    10  [the child] such witness were to report the incident to  any  person  or
    11  communicate information to or cooperate with a court, grand jury, prose-
    12  cutor,  police officer or peace officer concerning the incident has been
    13  made by or on behalf of the defendant.
    14    (h) A threat, express or implied, of the incarceration of a parent  or
    15  guardian  of  the child witness or the domestic violence victim witness,
    16  the removal of the child witness or the domestic violence victim witness
    17  from the family or the dissolution of the family of the child witness or
    18  the domestic violence victim witness if [the child] such witness were to
    19  report the incident to any person or communicate information to or coop-
    20  erate with a court, grand jury,  prosecutor,  police  officer  or  peace
    21  officer  concerning  the  incident  has been made by or on behalf of the
    22  defendant.
    23    (i) A witness other than the child witness or  the  domestic  violence
    24  victim  witness  has  received a threat of physical violence directed at
    25  such witness or to a third person by or on behalf of the defendant.
    26    (j) The defendant, at the time of the inquiry, (i) is  living  in  the
    27  same  household  with  the child witness or the domestic violence victim
    28  witness, (ii) has ready access to the  child  witness  or  the  domestic
    29  violence  victim  witness  or  (iii)  is providing substantial financial
    30  support for the child witness or the domestic violence victim witness.
    31    (k) The child witness or the  domestic  violence  victim  witness  has
    32  previously  been the victim of an offense defined in article one hundred
    33  thirty of the penal law or incest as defined in section  255.25,  255.26
    34  or 255.27 of such law.
    35    (l)  According  to expert testimony, the child witness or the domestic
    36  violence victim witness would be particularly  [suceptible]  susceptible
    37  to  psychological  harm  if  required to testify in open court or in the
    38  physical presence of the defendant.
    39    11. Irrespective of whether a motion was made pursuant to  subdivision
    40  one of this section, the court, at the request of either party or on its
    41  own  motion,  may  decide  that  a  child witness or a domestic violence
    42  victim witness may be vulnerable based on its own  observations  that  a
    43  child  witness or a domestic violence victim witness who has been called
    44  to testify at a  criminal  proceeding  is  suffering  severe  mental  or
    45  emotional harm and therefore is physically or mentally unable to testify
    46  or  to  continue to testify in open court or in the physical presence of
    47  the defendant and that the use of  live,  two-way  closed-circuit  tele-
    48  vision  is  necessary  to enable [the child] such witness to testify. If
    49  the court so decides, it must conduct the same hearing that  subdivision
    50  [five]  six  of  this section requires when a motion is made pursuant to
    51  subdivision one of this section, and  it  must  make  findings  of  fact
    52  pursuant  to  subdivisions  [nine  and  eleven]  ten  and twelve of this
    53  section, before determining that  the  child  witness  or  the  domestic
    54  violence victim witness is vulnerable.
    55    12.  In deciding whether a child witness or a domestic violence victim
    56  witness is vulnerable, the court  shall  make  findings  of  fact  which

        A. 2129                             6
 
     1  reflect the causal relationship between the existence of any one or more
     2  of  the  factors  set forth in subdivision [nine] ten of this section or
     3  other relevant factors which the court finds  are  established  and  the
     4  determination  that  the  child  witness or the domestic violence victim
     5  witness is vulnerable.  If the court is satisfied that the child witness
     6  or the domestic violence victim witness is vulnerable  and  that,  under
     7  the  facts  and  circumstances  of  the particular case, the defendant's
     8  constitutional rights to an impartial jury or of confrontation will  not
     9  be  impaired, it may enter an order granting the application for the use
    10  of live, two-way closed-circuit television.
    11    13. When the court has determined that a child witness or  a  domestic
    12  violence victim witness is a vulnerable [child] witness, it shall make a
    13  specific  finding  as  to  whether  placing  the defendant and the child
    14  witness or the domestic violence victim witness in the same room  during
    15  the  testimony  of  the  child  witness  or the domestic violence victim
    16  witness will contribute to the likelihood that [the child] such  witness
    17  will  suffer  severe  mental  or emotional harm. If the court finds that
    18  placing the defendant and the child witness  or  the  domestic  violence
    19  victim  witness  in  the  same  room  during  the testimony of the child
    20  witness or the domestic violence victim witness will contribute  to  the
    21  likelihood  that  [the  child] such witness will suffer severe mental or
    22  emotional harm, the  order  entered  pursuant  to  subdivision  [eleven]
    23  twelve  of  this  section  shall direct that the defendant remain in the
    24  courtroom during the testimony of the vulnerable [child] witness.
    25  § 65.30 Closed-circuit television; special testimonial procedures.
    26    1. When the court has entered an order pursuant to  section  65.20  of
    27  this  article,  the testimony of the vulnerable [child] witness shall be
    28  taken in the testimonial room and the image and voice of the  vulnerable
    29  [child]  witness,  as  well as the image of all other persons other than
    30  the operator present in the testimonial room, shall be transmitted  live
    31  by  means  of  closed-circuit television to the courtroom. The courtroom
    32  shall be equipped with monitors sufficient to permit  the  judge,  jury,
    33  defendant  and  attorneys  to  observe  the  demeanor  of the vulnerable
    34  [child] witness during his or her testimony. Unless  the  courtroom  has
    35  been  closed pursuant to court order, the public shall also be permitted
    36  to hear the testimony and view  the  image  of  the  vulnerable  [child]
    37  witness.
    38    2.  In  all  instances,  the image of the jury shall be simultaneously
    39  transmitted to the vulnerable [child] witness in the  testimonial  room.
    40  If  the  court  order  issued  pursuant to section 65.20 of this article
    41  specifies that the vulnerable [child] witness shall testify outside  the
    42  physical  presence  of the defendant, the image of the defendant and the
    43  image and voice of the person examining the vulnerable  [child]  witness
    44  shall  also  be  simultaneously  transmitted  to  the vulnerable [child]
    45  witness in the testimonial room.
    46    3. The operator shall place herself or himself and the  closed-circuit
    47  television  equipment in a position that permits the entire testimony of
    48  the vulnerable [child] witness to be transmitted to  the  courtroom  but
    49  limits  the ability of the vulnerable [child] witness to see or hear the
    50  operator or the equipment.
    51    4. Notwithstanding any provision of this article, if the  court  in  a
    52  particular  case  involving a vulnerable [child] witness determines that
    53  there is no live, two-way closed-circuit television equipment  available
    54  in  the court or another court in the county or which can be transported
    55  to the court from another county or that such equipment,  if  available,
    56  is  technologically  inadequate  to protect the constitutional rights of

        A. 2129                             7
 
     1  the defendant, it shall not permit the use of the  closed-circuit  tele-
     2  vision procedures authorized by this article.
     3    5. If the order of the court entered pursuant to section 65.20 of this
     4  article  requires that the defendant remain in the courtroom, the attor-
     5  ney for the defendant and the district attorney shall also remain in the
     6  courtroom unless the court is  satisfied  that  their  presence  in  the
     7  testimonial  room will not impede full and private communication between
     8  the defendant and his or her attorney and will not encourage the jury to
     9  draw an inference adverse to the interest of the defendant.
    10    6. Upon request of the defendant, the court shall  instruct  the  jury
    11  that they are to draw no inference from the use of live, two-way closed-
    12  circuit television in the examination of the vulnerable [child] witness.
    13    7.  The  vulnerable [child] witness shall testify under oath except as
    14  specified in subdivision two of section 60.20 of this article. The exam-
    15  ination and cross-examination of the vulnerable [child]  witness  shall,
    16  in all other respects, be conducted in the same manner as if the vulner-
    17  able [child] witness had testified in the courtroom.
    18    8. When the testimony of the vulnerable [child] witness is transmitted
    19  from  the  testimonial  room  into the courtroom, the court stenographer
    20  shall record the [textimony] testimony in the  same  manner  as  if  the
    21  vulnerable [child] witness had testified in the courtroom.
    22    §  2.  This  act  shall take effect immediately and shall apply to all
    23  criminal actions and proceedings commenced prior to the  effective  date
    24  of  this  act  but  still  pending  on such date as well as all criminal
    25  actions and proceedings commenced  on  or  after  such  effective  date.
    26  Provided  that  the  amendments  to article 65 of the criminal procedure
    27  law, made by section one of this act, shall not  affect  the  expiration
    28  and repeal of such article and shall be deemed repealed therewith.
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