A08911 Summary:

BILL NOA08911
 
SAME ASSAME AS S00033
 
SPONSORPeoples-Stokes
 
COSPNSR
 
MLTSPNSR
 
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.
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A08911 Actions:

BILL NOA08911
 
02/28/2014referred to codes
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A08911 Floor Votes:

There are no votes for this bill in this legislative session.
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A08911 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8911
 
                   IN ASSEMBLY
 
                                    February 28, 2014
                                       ___________
 
        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:
    23    1. "Child witness" means a person fourteen years old or less who is or
    24  will  be  called to testify in a criminal proceeding, other than a grand
    25  jury proceeding, concerning an offense defined in  article  one  hundred
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00338-01-3

        A. 8911                             2
 
     1  thirty  of the penal law or section 255.25, 255.26 or 255.27 of such law
     2  which is the subject of such criminal proceeding.
     3    2.  "Domestic  violence  victim  witness" means an individual who is a
     4  victim of a family offense, as defined in  subdivision  one  of  section
     5  530.11  of  this  chapter,  or  an offense committed by a member of such
     6  individual's immediate family as defined in subdivision four of  section
     7  120.40 of the penal law.
     8    3.  "Vulnerable  [child]  witness" means a child witness or a domestic
     9  violence victim witness whom a court has declared to be vulnerable.
    10    [3.] 4. "Testimonial room" means any room, separate and apart from the

    11  courtroom, which is furnished  comfortably  and  less  formally  than  a
    12  courtroom and from which the testimony of a vulnerable child witness can
    13  be transmitted to the courtroom by means of live, two-way closed-circuit
    14  television.
    15    [4.] 5. "Live, two-way closed-circuit television" means a simultaneous
    16  transmission,  by  closed-circuit television, or other electronic means,
    17  between the courtroom and the testimonial room in  accordance  with  the
    18  provisions of section 65.30 of this article.
    19    [5.]  6.  "Operator"  means  the individual authorized by the court to
    20  operate the closed-circuit television equipment used in accordance  with
    21  the provisions of this article.
    22    [6.]  7.  A person occupies "a position of authority with respect to a

    23  child" when he or she is a parent, guardian or other person  responsible
    24  for  the custody or care of [the] a child at the relevant time or is any
    25  other person who maintains an ongoing personal  relationship  with  such
    26  parent,  guardian or other person responsible for custody or care, which
    27  relationship involves his or her living, or  his  or  her  frequent  and
    28  repeated presence, in the same household or premises as the child.
    29  § 65.10 Closed-circuit  television; general rule; declaration of vulner-
    30            ability.
    31    1. A child witness or a domestic  violence  victim  witness  shall  be
    32  declared vulnerable when the court, in accordance with the provisions of
    33  section  65.20  of  this  article,  determines  by  clear and convincing
    34  evidence that it is likely that such  child  witness  or  such  domestic

    35  violence  victim witness will suffer serious mental or emotional harm if
    36  required to testify at a criminal proceeding without the  use  of  live,
    37  two-way closed-circuit television and that the use of such live, two-way
    38  closed-circuit  television  will  diminish  the likelihood or extent of,
    39  such harm.
    40    2. When the court declares a child  witness  or  a  domestic  violence
    41  victim  witness to be vulnerable, it shall, except as provided in subdi-
    42  vision four of section 65.30 of this article, authorize  the  taking  of
    43  the  testimony  of  the  vulnerable [child] witness from the testimonial
    44  room by means of live, two-way  closed-circuit  television.    Under  no
    45  circumstances  shall  the  provisions  of  this  article be construed to
    46  authorize a closed-circuit television system  by  which  events  in  the

    47  courtroom  are not transmitted to the testimonial room during the testi-
    48  mony of the vulnerable [child] witness.
    49    3. Nothing [herein] in this article shall be [contrued]  construed  to
    50  preclude  the  court from exercising its power to close the courtroom or
    51  from exercising any authority it otherwise may have to protect the well-
    52  being of a witness and the rights of the defendant.
    53  § 65.20 Closed-circuit television; procedure for application and grounds
    54            for determination.
    55    1. Prior to the commencement of a criminal proceeding[;], other than a
    56  grand jury proceeding, either party may apply to the court for an  order

        A. 8911                             3
 
     1  declaring  that a child witness or a domestic violence victim witness is

     2  vulnerable.
     3    2.  A  child  witness  or a domestic violence victim witness should be
     4  declared vulnerable when the court, in accordance with the provisions of
     5  this section, determines by clear and convincing evidence that the child
     6  witness or the domestic violence victim  witness  would  suffer  serious
     7  mental  or  emotional  harm  that  would  substantially impair the child
     8  witness' or the domestic violence victim witness' ability to communicate
     9  with the finder of fact without the use of live, two-way  closed-circuit
    10  television.
    11    3.  A  motion pursuant to subdivision one of this section must be made
    12  in writing at least eight days before the commencement of trial or other
    13  criminal proceeding upon reasonable notice to the other party  and  with
    14  an opportunity to be heard.

    15    4.  The  motion  papers  must  state the basis for the motion and must
    16  contain sworn allegations of fact which, if true, would support a deter-
    17  mination by the court that the child witness or  the  domestic  violence
    18  victim  witness  is  vulnerable.  Such allegations may be based upon the
    19  personal knowledge of the  deponent  or  upon  information  and  belief,
    20  provided  that, in the latter event, the sources of such information and
    21  the grounds for such belief are stated.
    22    5. The answering papers may admit or deny any of the alleged facts and
    23  may, in addition, contain sworn allegations  of  fact  relevant  to  the
    24  motion,  including  the rights of the defendant, the need to protect the
    25  child witness or the domestic violence victim witness and the  integrity
    26  of the truth-finding function of the trier of fact.

    27    6.  Unless  all  material  facts alleged in support of the motion made
    28  pursuant to subdivision one of this  section  are  conceded,  the  court
    29  shall,  in  addition  to examining the papers and hearing oral argument,
    30  conduct an appropriate hearing for the purpose  of  making  findings  of
    31  fact essential to the determination of the motion. Except as provided in
    32  subdivision  [six]  seven  of  this section, it may subpoena or call and
    33  examine witnesses, who must either testify under oath or be permitted to
    34  give unsworn testimony pursuant to subdivision two of section  60.20  of
    35  this  article and must authorize the attorneys for the parties to do the
    36  same.
    37    7. Notwithstanding any other provision of law, the  child  witness  or
    38  the domestic violence victim witness who is alleged to be vulnerable may

    39  not  be compelled to testify at such hearing or to submit to any psycho-
    40  logical or psychiatric examination. The failure of the child witness  or
    41  the  domestic  violence  victim witness to testify at such hearing shall
    42  not be a ground for denying a motion made pursuant to subdivision one of
    43  this section. Prior statements made by the child witness relating to any
    44  allegations of conduct constituting an offense defined  in  article  one
    45  hundred  thirty of the penal law or incest as defined in section 255.25,
    46  255.26 or 255.27 of such law, or prior  statements  made  by  the  child
    47  witness  or the domestic violence victim witness relating to any allega-
    48  tion of words or conduct constituting an attempt to prevent,  impede  or
    49  deter  [the child] such witness from cooperating in the investigation or

    50  prosecution  of  the  offense  shall  be  admissible  at  such  hearing,
    51  provided, however, that a declaration that a child witness or a domestic
    52  violence  victim witness is vulnerable may not be based solely upon such
    53  prior statements.
    54    8. (a) Notwithstanding any of the provisions of article forty-five  of
    55  the  civil practice law and rules, any physician, psychologist, nurse or
    56  social worker who has treated a child witness  or  a  domestic  violence

        A. 8911                             4
 
     1  victim  witness  may testify at a hearing conducted pursuant to subdivi-
     2  sion [five] six of this section concerning the treatment of  such  child
     3  witness  or  such  domestic  violence  victim  witness as such treatment

     4  relates  to the issue presented at the hearing, provided that any other-
     5  wise applicable statutory privileges concerning  communications  between
     6  the  child  witness  or  the  domestic  violence victim witness and such
     7  physician, psychologist, nurse or social worker in connection with  such
     8  treatment  shall not be deemed waived by such testimony alone, except to
     9  the limited extent of permitting the court alone to  examine  in  camera
    10  reports,  records  or  documents,  if  any,  prepared by such physician,
    11  psychologist, nurse or social worker. If upon such examination the court
    12  determines that such reports,  records  or  documents,  or  any  one  or
    13  portion  thereof, contain information material and relevant to the issue
    14  of whether the child witness or the domestic violence victim witness  is

    15  a  vulnerable [child] witness, the court shall disclose such information
    16  to both the attorney for the defendant and the district attorney.
    17    (b) At any time after a motion has been made pursuant  to  subdivision
    18  one of this section, upon the demand of the other party the moving party
    19  must  furnish  the  demanding  party  with a copy of any and all of such
    20  records, reports or other documents in  the  possession  of  such  other
    21  party  and  must,  in addition, supply the court with a copy of all such
    22  reports, records or other documents which are the subject of the demand.
    23  At any time after a demand has been made pursuant to this paragraph, the
    24  moving party may demand that property of the same kind or  character  in
    25  possession of the party that originally made such demand be furnished to
    26  the  moving party and, if so furnished, be supplied, in addition, to the
    27  court.

    28    9. (a) Prior to the commencement of the hearing conducted pursuant  to
    29  subdivision  five  of this section, the district attorney shall, subject
    30  to a protective order, comply with the provisions of subdivision one  of
    31  section  240.45  of  this  chapter  as they concern any witness whom the
    32  district attorney intends to call at the hearing and the  child  witness
    33  or the domestic violence victim witness.
    34    (b)  Before  a  defendant  calls  a witness at such hearing, he or she
    35  must, subject to a protective  order,  comply  with  the  provisions  of
    36  subdivision  two  of  section 240.45 of this chapter as they concern all
    37  the witnesses the defendant intends to call at such hearing.
    38    10. The court may consider, in determining whether there  are  factors
    39  which  would  cause  the  child  witness or the domestic violence victim

    40  witness to suffer serious mental or emotional harm, a finding  that  any
    41  one  or  more  of  the  following circumstances have been established by
    42  clear and convincing evidence:
    43    (a) The manner of the commission of the offense of which the defendant
    44  is accused was particularly heinous or was characterized by  aggravating
    45  circumstances.
    46    (b)  The  child  witness  or  the  domestic violence victim witness is
    47  particularly young or otherwise particularly  subject  to  psychological
    48  harm  on  account of a physical or mental condition which existed before
    49  the alleged commission of the offense.
    50    (c) At the time of the alleged offense, the defendant occupied a posi-
    51  tion of authority with respect to the child witness.
    52    (d) The offense or offenses charged were part of an ongoing course  of

    53  conduct  committed  by  the  defendant  against the child witness or the
    54  domestic violence victim witness over an extended period of time.
    55    (e) A deadly weapon or dangerous instrument was allegedly used  during
    56  the commission of the crime.

        A. 8911                             5
 
     1    (f) The defendant has inflicted serious physical injury upon the child
     2  witness or the domestic violence victim witness.
     3    (g)  A  threat,  express or implied, of physical violence to the child
     4  witness or the domestic violence victim witness, or a  third  person  if
     5  [the  child]  such  witness were to report the incident to any person or
     6  communicate information to or cooperate with a court, grand jury, prose-
     7  cutor, police officer or peace officer concerning the incident has  been

     8  made by or on behalf of the defendant.
     9    (h)  A threat, express or implied, of the incarceration of a parent or
    10  guardian of the child witness or the domestic violence  victim  witness,
    11  the removal of the child witness or the domestic violence victim witness
    12  from the family or the dissolution of the family of the child witness or
    13  the domestic violence victim witness if [the child] such witness were to
    14  report the incident to any person or communicate information to or coop-
    15  erate  with  a  court,  grand  jury, prosecutor, police officer or peace
    16  officer concerning the incident has been made by or  on  behalf  of  the
    17  defendant.
    18    (i)  A  witness  other than the child witness or the domestic violence
    19  victim witness has received a threat of physical  violence  directed  at

    20  such witness or to a third person by or on behalf of the defendant.
    21    (j)  The  defendant,  at the time of the inquiry, (i) is living in the
    22  same household with the child witness or the  domestic  violence  victim
    23  witness,  (ii)  has  ready  access  to the child witness or the domestic
    24  violence victim witness or  (iii)  is  providing  substantial  financial
    25  support for the child witness or the domestic violence victim witness.
    26    (k)  The  child  witness  or  the domestic violence victim witness has
    27  previously been the victim of an offense defined in article one  hundred
    28  thirty  of  the penal law or incest as defined in section 255.25, 255.26
    29  or 255.27 of such law.
    30    (l) According to expert testimony, the child witness or  the  domestic

    31  violence  victim  witness would be particularly [suceptible] susceptible
    32  to psychological harm if required to testify in open  court  or  in  the
    33  physical presence of the defendant.
    34    11.  Irrespective of whether a motion was made pursuant to subdivision
    35  one of this section, the court, at the request of either party or on its
    36  own motion, may decide that a  child  witness  or  a  domestic  violence
    37  victim  witness  may  be vulnerable based on its own observations that a
    38  child witness or a domestic violence victim witness who has been  called
    39  to  testify  at  a  criminal  proceeding  is  suffering severe mental or
    40  emotional harm and therefore is physically or mentally unable to testify
    41  or to continue to testify in open court or in the physical  presence  of

    42  the  defendant  and  that  the use of live, two-way closed-circuit tele-
    43  vision is necessary to enable [the child] such witness  to  testify.  If
    44  the  court so decides, it must conduct the same hearing that subdivision
    45  [five] six of this section requires when a motion is  made  pursuant  to
    46  subdivision  one  of  this  section,  and  it must make findings of fact
    47  pursuant to subdivisions [nine  and  eleven]  ten  and  twelve  of  this
    48  section,  before  determining  that  the  child  witness or the domestic
    49  violence victim witness is vulnerable.
    50    12. In deciding whether a child witness or a domestic violence  victim
    51  witness  is  vulnerable,  the  court  shall  make findings of fact which
    52  reflect the causal relationship between the existence of any one or more

    53  of the factors set forth in subdivision [nine] ten of  this  section  or
    54  other  relevant  factors  which  the court finds are established and the
    55  determination that the child witness or  the  domestic  violence  victim
    56  witness is vulnerable.  If the court is satisfied that the child witness

        A. 8911                             6
 
     1  or  the  domestic  violence victim witness is vulnerable and that, under
     2  the facts and circumstances of  the  particular  case,  the  defendant's
     3  constitutional  rights to an impartial jury or of confrontation will not
     4  be  impaired, it may enter an order granting the application for the use
     5  of live, two-way closed-circuit television.
     6    13. When the court has determined that a child witness or  a  domestic

     7  violence victim witness is a vulnerable [child] witness, it shall make a
     8  specific  finding  as  to  whether  placing  the defendant and the child
     9  witness or the domestic violence victim witness in the same room  during
    10  the  testimony  of  the  child  witness  or the domestic violence victim
    11  witness will contribute to the likelihood that [the child] such  witness
    12  will  suffer  severe  mental  or emotional harm. If the court finds that
    13  placing the defendant and the child witness  or  the  domestic  violence
    14  victim  witness  in  the  same  room  during  the testimony of the child
    15  witness or the domestic violence victim witness will contribute  to  the
    16  likelihood  that  [the  child] such witness will suffer severe mental or

    17  emotional harm, the  order  entered  pursuant  to  subdivision  [eleven]
    18  twelve  of  this  section  shall direct that the defendant remain in the
    19  courtroom during the testimony of the vulnerable [child] witness.
    20  § 65.30 Closed-circuit television; special testimonial procedures.
    21    1. When the court has entered an order pursuant to  section  65.20  of
    22  this  article,  the testimony of the vulnerable [child] witness shall be
    23  taken in the testimonial room and the image and voice of the  vulnerable
    24  [child]  witness,  as  well as the image of all other persons other than
    25  the operator present in the testimonial room, shall be transmitted  live
    26  by  means  of  closed-circuit television to the courtroom. The courtroom
    27  shall be equipped with monitors sufficient to permit  the  judge,  jury,

    28  defendant  and  attorneys  to  observe  the  demeanor  of the vulnerable
    29  [child] witness during his or her testimony. Unless  the  courtroom  has
    30  been  closed pursuant to court order, the public shall also be permitted
    31  to hear the testimony and view  the  image  of  the  vulnerable  [child]
    32  witness.
    33    2.  In  all  instances,  the image of the jury shall be simultaneously
    34  transmitted to the vulnerable [child] witness in the  testimonial  room.
    35  If  the  court  order  issued  pursuant to section 65.20 of this article
    36  specifies that the vulnerable [child] witness shall testify outside  the
    37  physical  presence  of the defendant, the image of the defendant and the
    38  image and voice of the person examining the vulnerable  [child]  witness

    39  shall  also  be  simultaneously  transmitted  to  the vulnerable [child]
    40  witness in the testimonial room.
    41    3. The operator shall place herself or himself and the  closed-circuit
    42  television  equipment in a position that permits the entire testimony of
    43  the vulnerable [child] witness to be transmitted to  the  courtroom  but
    44  limits  the ability of the vulnerable [child] witness to see or hear the
    45  operator or the equipment.
    46    4. Notwithstanding any provision of this article, if the  court  in  a
    47  particular  case  involving a vulnerable [child] witness determines that
    48  there is no live, two-way closed-circuit television equipment  available
    49  in  the court or another court in the county or which can be transported
    50  to the court from another county or that such equipment,  if  available,

    51  is  technologically  inadequate  to protect the constitutional rights of
    52  the defendant, it shall not permit the use of the  closed-circuit  tele-
    53  vision procedures authorized by this article.
    54    5. If the order of the court entered pursuant to section 65.20 of this
    55  article  requires that the defendant remain in the courtroom, the attor-
    56  ney for the defendant and the district attorney shall also remain in the

        A. 8911                             7
 
     1  courtroom unless the court is  satisfied  that  their  presence  in  the
     2  testimonial  room will not impede full and private communication between
     3  the defendant and his or her attorney and will not encourage the jury to
     4  draw an inference adverse to the interest of the defendant.
     5    6.  Upon  request  of the defendant, the court shall instruct the jury

     6  that they are to draw no inference from the use of live, two-way closed-
     7  circuit television in the examination of the vulnerable [child] witness.
     8    7. The vulnerable [child] witness shall testify under oath  except  as
     9  specified in subdivision two of section 60.20 of this article. The exam-
    10  ination  and  cross-examination of the vulnerable [child] witness shall,
    11  in all other respects, be conducted in the same manner as if the vulner-
    12  able [child] witness had testified in the courtroom.
    13    8. When the testimony of the vulnerable [child] witness is transmitted
    14  from the testimonial room into the  courtroom,  the  court  stenographer
    15  shall  record  the  [textimony]  testimony  in the same manner as if the
    16  vulnerable [child] witness had testified in the courtroom.

    17    § 2. This act shall take effect immediately and  shall  apply  to  all
    18  criminal  actions  and proceedings commenced prior to the effective date
    19  of this act but still pending on such  date  as  well  as  all  criminal
    20  actions  and  proceedings  commenced  on  or  after such effective date.
    21  Provided that the amendments to article 65  of  the  criminal  procedure
    22  law,  made  by  section one of this act, shall not affect the expiration
    23  and repeal of such article and shall be deemed repealed therewith.
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