BILL NO A03676
SAME AS SAME AS S01706
SPONSOR Gabryszak (MS)
COSPNSR
MLTSPNSR Abbate, Brennan, Burling, Calhoun, Conte, Cusick, Duprey, Giglio,
Gottfried, Gunther, Hayes, Hooper, Hoyt, Jaffee, Kolb, Maisel,
McDonough, Millman, Molinaro, Murray, Oaks, Peoples-Stokes, Pheffer,
Raia, Reilly, Schimminger, Spano, Thiele, Titone, Tobacco,
Weisenberg, Zebrowski
Amd Art 65 SS65.00 - 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.
S T A T E O F N E W Y O R K
________________________________________________________________________
3676
2011-2012 Regular Sessions
I N A S S E M B L Y
January 26, 2011
___________
Introduced by M. of A. GABRYSZAK -- Multi-Sponsored by -- M. of A.
ABBATE, BRENNAN, BURLING, CALHOUN, CONTE, CUSICK, DUPREY, GIGLIO,
GOTTFRIED, GUNTHER, HAYES, HOOPER, HOYT, JAFFEE, KOLB, MAISEL, McDO-
NOUGH, MILLMAN, MOLINARO, MURRAY, OAKS, PEOPLES-STOKES, PHEFFER, RAIA,
REILLY, SCHIMMINGER, SPANO, THIELE, TITONE, TOBACCO, WEISENBERG,
ZEBROWSKI -- 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05118-01-1
A. 3676 2
1 65.30 Closed-circuit television; special testimonial [proce-
2 dure] PROCEDURES.
3 S 65.00 Definitions.
4 As used in this article:
5 1. "Child witness" means a person fourteen years old or less who is or
6 will be called to testify in a criminal proceeding, other than a grand
7 jury proceeding, concerning an offense defined in article one hundred
8 thirty of the penal law or section 255.25, 255.26 or 255.27 of such law
9 which is the subject of such criminal proceeding.
10 2. "DOMESTIC VIOLENCE VICTIM WITNESS" MEANS AN INDIVIDUAL WHO IS A
11 VICTIM OF A FAMILY OFFENSE, AS DEFINED IN SUBDIVISION ONE OF SECTION
12 530.11 OF THIS CHAPTER, OR AN OFFENSE COMMITTED BY A MEMBER OF SUCH
13 INDIVIDUAL'S IMMEDIATE FAMILY AS DEFINED IN SUBDIVISION FOUR OF SECTION
14 120.40 OF THE PENAL LAW.
15 3. "Vulnerable [child] witness" means a child witness OR A DOMESTIC
16 VIOLENCE VICTIM WITNESS whom a court has declared to be vulnerable.
17 [3.] 4. "Testimonial room" means any room, separate and apart from the
18 courtroom, which is furnished comfortably and less formally than a
19 courtroom and from which the testimony of a vulnerable child witness can
20 be transmitted to the courtroom by means of live, two-way closed-circuit
21 television.
22 [4.] 5. "Live, two-way closed-circuit television" means a simultaneous
23 transmission, by closed-circuit television, or other electronic means,
24 between the courtroom and the testimonial room in accordance with the
25 provisions of section 65.30 OF THIS ARTICLE.
26 [5.] 6. "Operator" means the individual authorized by the court to
27 operate the closed-circuit television equipment used in accordance with
28 the provisions of this article.
29 [6.] 7. A person occupies "a position of authority with respect to a
30 child" when he or she is a parent, guardian or other person responsible
31 for the custody or care of [the] A child at the relevant time or is any
32 other person who maintains an ongoing personal relationship with such
33 parent, guardian or other person responsible for custody or care, which
34 relationship involves his or her living, or his or her frequent and
35 repeated presence, in the same household or premises as the child.
36 S 65.10 Closed-circuit television; general rule; declaration of vulner-
37 ability.
38 1. A child witness OR A DOMESTIC VIOLENCE VICTIM WITNESS shall be
39 declared vulnerable when the court, in accordance with the provisions of
40 section 65.20 OF THIS ARTICLE, determines by clear and convincing
41 evidence that it is likely that such child witness OR SUCH DOMESTIC
42 VIOLENCE VICTIM WITNESS will suffer serious mental or emotional harm if
43 required to testify at a criminal proceeding without the use of live,
44 two-way closed-circuit television and that the use of such live, two-way
45 closed-circuit television will diminish the likelihood or extent of,
46 such harm.
47 2. When the court declares a child witness OR A DOMESTIC VIOLENCE
48 VICTIM WITNESS to be vulnerable, it shall, except as provided in subdi-
49 vision four of section 65.30 OF THIS ARTICLE, authorize the taking of
50 the testimony of the vulnerable [child] witness from the testimonial
51 room by means of live, two-way closed-circuit television. Under no
52 circumstances shall the provisions of this article be construed to
53 authorize a closed-circuit television system by which events in the
54 courtroom are not transmitted to the testimonial room during the testi-
55 mony of the vulnerable [child] witness.
A. 3676 3
1 3. Nothing [herein] IN THIS ARTICLE shall be [contrued] CONSTRUED to
2 preclude the court from exercising its power to close the courtroom or
3 from exercising any authority it otherwise may have to protect the well-
4 being of a witness and the rights of the defendant.
5 S 65.20 Closed-circuit television; procedure for application and grounds
6 for determination.
7 1. Prior to the commencement of a criminal proceeding[;], other than a
8 grand jury proceeding, either party may apply to the court for an order
9 declaring that a child witness OR A DOMESTIC VIOLENCE VICTIM WITNESS is
10 vulnerable.
11 2. A child witness OR A DOMESTIC VIOLENCE VICTIM WITNESS should be
12 declared vulnerable when the court, in accordance with the provisions of
13 this section, determines by clear and convincing evidence that the child
14 witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS would suffer serious
15 mental or emotional harm that would substantially impair the child
16 witness' OR THE DOMESTIC VIOLENCE VICTIM WITNESS' ability to communicate
17 with the finder of fact without the use of live, two-way closed-circuit
18 television.
19 3. A motion pursuant to subdivision one of this section must be made
20 in writing at least eight days before the commencement of trial or other
21 criminal proceeding upon reasonable notice to the other party and with
22 an opportunity to be heard.
23 4. The motion papers must state the basis for the motion and must
24 contain sworn allegations of fact which, if true, would support a deter-
25 mination by the court that the child witness OR THE DOMESTIC VIOLENCE
26 VICTIM WITNESS is vulnerable. Such allegations may be based upon the
27 personal knowledge of the deponent or upon information and belief,
28 provided that, in the latter event, the sources of such information and
29 the grounds for such belief are stated.
30 5. The answering papers may admit or deny any of the alleged facts and
31 may, in addition, contain sworn allegations of fact relevant to the
32 motion, including the rights of the defendant, the need to protect the
33 child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS and the integrity
34 of the truth-finding function of the trier of fact.
35 6. Unless all material facts alleged in support of the motion made
36 pursuant to subdivision one of this section are conceded, the court
37 shall, in addition to examining the papers and hearing oral argument,
38 conduct an appropriate hearing for the purpose of making findings of
39 fact essential to the determination of the motion. Except as provided in
40 subdivision [six] SEVEN of this section, it may subpoena or call and
41 examine witnesses, who must either testify under oath or be permitted to
42 give unsworn testimony pursuant to subdivision two of section 60.20 OF
43 THIS ARTICLE and must authorize the attorneys for the parties to do the
44 same.
45 7. Notwithstanding any other provision of law, the child witness OR
46 THE DOMESTIC VIOLENCE VICTIM WITNESS who is alleged to be vulnerable may
47 not be compelled to testify at such hearing or to submit to any psycho-
48 logical or psychiatric examination. The failure of the child witness OR
49 THE DOMESTIC VIOLENCE VICTIM WITNESS to testify at such hearing shall
50 not be a ground for denying a motion made pursuant to subdivision one of
51 this section. Prior statements made by the child witness relating to any
52 allegations of conduct constituting an offense defined in article one
53 hundred thirty of the penal law or incest as defined in section 255.25,
54 255.26 or 255.27 of such law, or PRIOR STATEMENTS MADE BY THE CHILD
55 WITNESS OR THE DOMESTIC VIOLENCE VICTIM WITNESS RELATING to any allega-
56 tion of words or conduct constituting an attempt to prevent, impede or
A. 3676 4
1 deter [the child] SUCH witness from cooperating in the investigation or
2 prosecution of the offense shall be admissible at such hearing,
3 provided, however, that a declaration that a child witness OR A DOMESTIC
4 VIOLENCE VICTIM WITNESS is vulnerable may not be based solely upon such
5 prior statements.
6 8. (a) Notwithstanding any of the provisions of article forty-five of
7 the civil practice law and rules, any physician, psychologist, nurse or
8 social worker who has treated a child witness OR A DOMESTIC VIOLENCE
9 VICTIM WITNESS may testify at a hearing conducted pursuant to subdivi-
10 sion [five] SIX of this section concerning the treatment of such child
11 witness OR SUCH DOMESTIC VIOLENCE VICTIM WITNESS as such treatment
12 relates to the issue presented at the hearing, provided that any other-
13 wise applicable statutory privileges concerning communications between
14 the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS and such
15 physician, psychologist, nurse or social worker in connection with such
16 treatment shall not be deemed waived by such testimony alone, except to
17 the limited extent of permitting the court alone to examine in camera
18 reports, records or documents, if any, prepared by such physician,
19 psychologist, nurse or social worker. If upon such examination the court
20 determines that such reports, records or documents, or any one or
21 portion thereof, contain information material and relevant to the issue
22 of whether the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS is
23 a vulnerable [child] witness, the court shall disclose such information
24 to both the attorney for the defendant and the district attorney.
25 (b) At any time after a motion has been made pursuant to subdivision
26 one of this section, upon the demand of the other party the moving party
27 must furnish the demanding party with a copy of any and all of such
28 records, reports or other documents in the possession of such other
29 party and must, in addition, supply the court with a copy of all such
30 reports, records or other documents which are the subject of the demand.
31 At any time after a demand has been made pursuant to this paragraph, the
32 moving party may demand that property of the same kind or character in
33 possession of the party that originally made such demand be furnished to
34 the moving party and, if so furnished, be supplied, in addition, to the
35 court.
36 9. (a) Prior to the commencement of the hearing conducted pursuant to
37 subdivision five of this section, the district attorney shall, subject
38 to a protective order, comply with the provisions of subdivision one of
39 section 240.45 of this chapter as they concern any witness whom the
40 district attorney intends to call at the hearing and the child witness
41 OR THE DOMESTIC VIOLENCE VICTIM WITNESS.
42 (b) Before a defendant calls a witness at such hearing, he or she
43 must, subject to a protective order, comply with the provisions of
44 subdivision two of section 240.45 of this chapter as they concern all
45 the witnesses the defendant intends to call at such hearing.
46 10. The court may consider, in determining whether there are factors
47 which would cause the child witness OR THE DOMESTIC VIOLENCE VICTIM
48 WITNESS to suffer serious mental or emotional harm, a finding that any
49 one or more of the following circumstances have been established by
50 clear and convincing evidence:
51 (a) The manner of the commission of the offense of which the defendant
52 is accused was particularly heinous or was characterized by aggravating
53 circumstances.
54 (b) The child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS is
55 particularly young or otherwise particularly subject to psychological
A. 3676 5
1 harm on account of a physical or mental condition which existed before
2 the alleged commission of the offense.
3 (c) At the time of the alleged offense, the defendant occupied a posi-
4 tion of authority with respect to the child witness.
5 (d) The offense or offenses charged were part of an ongoing course of
6 conduct committed by the defendant against the child witness OR THE
7 DOMESTIC VIOLENCE VICTIM WITNESS over an extended period of time.
8 (e) A deadly weapon or dangerous instrument was allegedly used during
9 the commission of the crime.
10 (f) The defendant has inflicted serious physical injury upon the child
11 witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS.
12 (g) A threat, express or implied, of physical violence to the child
13 witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS, or a third person if
14 [the child] SUCH witness were to report the incident to any person or
15 communicate information to or cooperate with a court, grand jury, prose-
16 cutor, police officer or peace officer concerning the incident has been
17 made by or on behalf of the defendant.
18 (h) A threat, express or implied, of the incarceration of a parent or
19 guardian of the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS,
20 the removal of the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS
21 from the family or the dissolution of the family of the child witness OR
22 THE DOMESTIC VIOLENCE VICTIM WITNESS if [the child] SUCH witness were to
23 report the incident to any person or communicate information to or coop-
24 erate with a court, grand jury, prosecutor, police officer or peace
25 officer concerning the incident has been made by or on behalf of the
26 defendant.
27 (i) A witness other than the child witness OR THE DOMESTIC VIOLENCE
28 VICTIM WITNESS has received a threat of physical violence directed at
29 such witness or to a third person by or on behalf of the defendant.
30 (j) The defendant, at the time of the inquiry, (i) is living in the
31 same household with the child witness OR THE DOMESTIC VIOLENCE VICTIM
32 WITNESS, (ii) has ready access to the child witness OR THE DOMESTIC
33 VIOLENCE VICTIM WITNESS or (iii) is providing substantial financial
34 support for the child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS.
35 (k) The child witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS has
36 previously been the victim of an offense defined in article one hundred
37 thirty of the penal law or incest as defined in section 255.25, 255.26
38 or 255.27 of such law.
39 (l) According to expert testimony, the child witness OR THE DOMESTIC
40 VIOLENCE VICTIM WITNESS would be particularly [suceptible] SUSCEPTIBLE
41 to psychological harm if required to testify in open court or in the
42 physical presence of the defendant.
43 11. Irrespective of whether a motion was made pursuant to subdivision
44 one of this section, the court, at the request of either party or on its
45 own motion, may decide that a child witness OR A DOMESTIC VIOLENCE
46 VICTIM WITNESS may be vulnerable based on its own observations that a
47 child witness OR A DOMESTIC VIOLENCE VICTIM WITNESS who has been called
48 to testify at a criminal proceeding is suffering severe mental or
49 emotional harm and therefore is physically or mentally unable to testify
50 or to continue to testify in open court or in the physical presence of
51 the defendant and that the use of live, two-way closed-circuit tele-
52 vision is necessary to enable [the child] SUCH witness to testify. If
53 the court so decides, it must conduct the same hearing that subdivision
54 [five] SIX of this section requires when a motion is made pursuant to
55 subdivision one of this section, and it must make findings of fact
56 pursuant to subdivisions [nine and eleven] TEN AND TWELVE of this
A. 3676 6
1 section, before determining that the child witness OR THE DOMESTIC
2 VIOLENCE VICTIM WITNESS is vulnerable.
3 12. In deciding whether a child witness OR A DOMESTIC VIOLENCE VICTIM
4 WITNESS is vulnerable, the court shall make findings of fact which
5 reflect the causal relationship between the existence of any one or more
6 of the factors set forth in subdivision [nine] TEN of this section or
7 other relevant factors which the court finds are established and the
8 determination that the child witness OR THE DOMESTIC VIOLENCE VICTIM
9 WITNESS is vulnerable. If the court is satisfied that the child witness
10 OR THE DOMESTIC VIOLENCE VICTIM WITNESS is vulnerable and that, under
11 the facts and circumstances of the particular case, the defendant's
12 constitutional rights to an impartial jury or of confrontation will not
13 be impaired, it may enter an order granting the application for the use
14 of live, two-way closed-circuit television.
15 13. When the court has determined that a child witness OR A DOMESTIC
16 VIOLENCE VICTIM WITNESS is a vulnerable [child] witness, it shall make a
17 specific finding as to whether placing the defendant and the child
18 witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS in the same room during
19 the testimony of the child witness OR THE DOMESTIC VIOLENCE VICTIM
20 WITNESS will contribute to the likelihood that [the child] SUCH witness
21 will suffer severe mental or emotional harm. If the court finds that
22 placing the defendant and the child witness OR THE DOMESTIC VIOLENCE
23 VICTIM WITNESS in the same room during the testimony of the child
24 witness OR THE DOMESTIC VIOLENCE VICTIM WITNESS will contribute to the
25 likelihood that [the child] SUCH witness will suffer severe mental or
26 emotional harm, the order entered pursuant to subdivision [eleven]
27 TWELVE of this section shall direct that the defendant remain in the
28 courtroom during the testimony of the vulnerable [child] witness.
29 S 65.30 Closed-circuit television; special testimonial procedures.
30 1. When the court has entered an order pursuant to section 65.20 OF
31 THIS ARTICLE, the testimony of the vulnerable [child] witness shall be
32 taken in the testimonial room and the image and voice of the vulnerable
33 [child] witness, as well as the image of all other persons other than
34 the operator present in the testimonial room, shall be transmitted live
35 by means of closed-circuit television to the courtroom. The courtroom
36 shall be equipped with monitors sufficient to permit the judge, jury,
37 defendant and attorneys to observe the demeanor of the vulnerable
38 [child] witness during his or her testimony. Unless the courtroom has
39 been closed pursuant to court order, the public shall also be permitted
40 to hear the testimony and view the image of the vulnerable [child]
41 witness.
42 2. In all instances, the image of the jury shall be simultaneously
43 transmitted to the vulnerable [child] witness in the testimonial room.
44 If the court order issued pursuant to section 65.20 OF THIS ARTICLE
45 specifies that the vulnerable [child] witness shall testify outside the
46 physical presence of the defendant, the image of the defendant and the
47 image and voice of the person examining the vulnerable [child] witness
48 shall also be simultaneously transmitted to the vulnerable [child]
49 witness in the testimonial room.
50 3. The operator shall place herself or himself and the closed-circuit
51 television equipment in a position that permits the entire testimony of
52 the vulnerable [child] witness to be transmitted to the courtroom but
53 limits the ability of the vulnerable [child] witness to see or hear the
54 operator or the equipment.
55 4. Notwithstanding any provision of this article, if the court in a
56 particular case involving a vulnerable [child] witness determines that
A. 3676 7
1 there is no live, two-way closed-circuit television equipment available
2 in the court or another court in the county or which can be transported
3 to the court from another county or that such equipment, if available,
4 is technologically inadequate to protect the constitutional rights of
5 the defendant, it shall not permit the use of the closed-circuit tele-
6 vision procedures authorized by this article.
7 5. If the order of the court entered pursuant to section 65.20 OF THIS
8 ARTICLE requires that the defendant remain in the courtroom, the attor-
9 ney for the defendant and the district attorney shall also remain in the
10 courtroom unless the court is satisfied that their presence in the
11 testimonial room will not impede full and private communication between
12 the defendant and his or her attorney and will not encourage the jury to
13 draw an inference adverse to the interest of the defendant.
14 6. Upon request of the defendant, the court shall instruct the jury
15 that they are to draw no inference from the use of live, two-way closed-
16 circuit television in the examination of the vulnerable [child] witness.
17 7. The vulnerable [child] witness shall testify under oath except as
18 specified in subdivision two of section 60.20 OF THIS ARTICLE. The exam-
19 ination and cross-examination of the vulnerable [child] witness shall,
20 in all other respects, be conducted in the same manner as if the vulner-
21 able [child] witness had testified in the courtroom.
22 8. When the testimony of the vulnerable [child] witness is transmitted
23 from the testimonial room into the courtroom, the court stenographer
24 shall record the [textimony] TESTIMONY in the same manner as if the
25 vulnerable [child] witness had testified in the courtroom.
26 S 2. This act shall take effect immediately and shall apply to all
27 criminal actions and proceedings commenced prior to the effective date
28 of this act but still pending on such date as well as all criminal
29 actions and proceedings commenced on or after such effective date.
30 Provided that the amendments to article 65 of the criminal procedure
31 law, made by section one of this act, shall not affect the expiration
32 and repeal of such article and shall be deemed repealed therewith.
