NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7568
SPONSOR: Kaminsky TITLE OF BILL: An act to amend the criminal procedure law, in
relation to rules of evidence at grand jury hearings
PURPOSE OR GENERAL IDEA OF BILL:
Makes procedural changes to the criminal procedure law to allow certain
evidence to be presented to a grand jury without the need for calling a
live authenticating witness. Instead, a sworn affidavit or affirmation
from a qualified person would be sufficient to allow all business
records, the theft of personal identifying information, and electronic
records and data to be considered as evidence by a grand jury.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends subdivision 2-a and subparagraph (ii) of paragraph (a)
of subdivision 8 of section 190.30 of the criminal procedure law, subdi-
vision 2a as amended by chapter 453 of the laws of 1999, and subpara-
graph (ii) of paragraph (a) of subdivision 8 as added by chapter 279 of
the laws of 2008, to
Section 2 amends paragraph (g) of subdivision 3 of section 190.30 of the
criminal procedure law, as added by chapter 690 of the laws of 2005, and
adds two new paragraphs (h) and (i) to
Section 3 establishes that this act shall take effect on the ninetieth
day after it shall have become a law.
JUSTIFICATION:
Business Records: Current law allows certain business records of finan-
cial institutions, telephone companies, and internet service providers
to be admissible to a grand jury when accompanied by a sworn statement
attesting to the authenticity of the records. This bill would expand
existing law to include business records from other types of industries,
including law firms, manufacturing companies, and technology companies.
Identity Theft Victims: Existing law allows certain crime victims'
testimony to be admitted to a grand jury via affidavit, specifically
those whose testimony is limited to resolving the question of a legal
right or status of the witness or his or her property (e.g. the owner of
a stolen car, the owner of a burglarized home, or the owner of a credit
card). The law does not currently include victims whose "personal iden-
tifying information" or "personal identification number" have been
stolen to submit testimony by affidavit, requiring victims to testify in
person before a grand jury, even if they live in other cities, states,
or countries. This bill would allow identity theft victims to submit
testimony via affidavit.
Electronic Data: Current law allowing the admission of certain business
records via affidavit does not allow for the authentication of electron-
ic data, such as the contents of e-mails, via affidavit. A live witness
must appear before a grand jury to authenticate "recorded conversations
or images communication thereby." Increasingly, prosecutors are handl-
ing cases involving electronic data, such as e-mails, test messages, and
social media posts that are housed on servers located around the world.
For a live witness to authenticate such records, prosecutors often have
to fly in the witness, and provide them with food and lodging, merely to
authenticate that a CD-Rom or files provided to prosecutors are indeed
the records produced by the company in response to the legal process.
This bill would close that loophole and allow such electronic records to
be submitted as testimony to a grand jury via affidavit.
The procedural reforms in this bill are consistent with recommendations
made by the District Attorneys Association of the State of New York's
White Collar Crime Task Force in its 2013 report. The amendments
contained in this bill would save significant taxpayer dollars, elimi-
nate time-consuming requirements on government, businesses, grand
jurors, and identity theft victims, while preserving defendants' rights
to contest the accuracy and authenticity of the evidence. Doing so would
permit prosecutors to investigate more complex white collar and cyber-
crime cases, and comport New York State Law more closely with federal
law and the laws of at least 26 other states.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS:
Savings to taxpayers for reimbursements of witnesses' travel, lodging,
and food.
EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law.
STATE OF NEW YORK
________________________________________________________________________
7568
2015-2016 Regular Sessions
IN ASSEMBLY
May 19, 2015
___________
Introduced by M. of A. KAMINSKY -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the criminal procedure law, in relation to rules of
evidence at grand jury hearings
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 2-a and subparagraph (ii) of paragraph (a) of
2 subdivision 8 of section 190.30 of the criminal procedure law, subdivi-
3 sion 2-a as amended by chapter 453 of the laws of 1999 and subparagraph
4 (ii) of paragraph (a) of subdivision 8 as added by chapter 279 of the
5 laws of 2008, are amended to read as follows:
6 2-a. When the electronic transmission of a certified report, or certi-
7 fied copy thereof, of the kind described in subdivision two or three-a
8 of this section or a sworn statement or copy thereof, of the kind
9 described in subdivision three of this section, or a business record as
10 in rule forty-five hundred eighteen of the civil practice law and rules,
11 results in a written document, such written document may be received in
12 such grand jury proceeding provided that: (a) a transmittal memorandum
13 completed by the person sending the report contains a certification that
14 the report has not been altered and a description of the report specify-
15 ing the number of pages; and (b) the person who receives the electron-
16 ically transmitted document certifies that such document and transmittal
17 memorandum were so received; and (c) a certified report or a certified
18 copy or sworn statement or sworn copy thereof is filed with the court
19 within twenty days following arraignment upon the indictment; and (d)
20 where such written document is a sworn statement or sworn copy thereof
21 of the kind described in subdivision three of this section, such sworn
22 statement or sworn copy thereof is also provided to the defendant or his
23 counsel within twenty days following arraignment upon the indictment.
24 (ii) financial transactions, and a person's ownership or possessory
25 interest in any account, at a bank, insurance company, brokerage,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07255-02-5
A. 7568 2
1 exchange or banking organization as defined in section two of the bank-
2 ing law. All records as defined in rule forty-five hundred eighteen of
3 the civil practice law and rules may be received in such grand jury
4 proceedings as evidence of the facts stated or contained therein.
5 § 2. Paragraph (g) of subdivision 3 of section 190.30 of the criminal
6 procedure law, as added by chapter 690 of the laws of 2005, is amended
7 and two new paragraphs (h) and (i) are added to read as follows:
8 (g) that person's ownership of, or possessory right in, a credit card
9 account number or debit card account number, and the defendant's lack of
10 superior or equal right to use or possession thereof[.];
11 (h) that person's possessory right in "personal identifying informa-
12 tion" or a "personal identification number," as defined in section
13 190.77 of the penal law, and the defendant's lack of superior or equal
14 right to use or possession thereof;
15 (i) that person's qualifications as a custodian of records and data
16 stored and maintained by an electronic communications service or remote
17 computing service, and specified records and data before the grand jury
18 are true and accurate copies of the records and data maintained by the
19 custodian.
20 § 3. This act shall take effect on the ninetieth day after it shall
21 have become a law.
