Bill Text: NY A08157 | 2015-2016 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to enhancing criminal investigations and prosecutions in relation to the integrity of statements of those accused of crimes and the integrity of eyewitness identifications.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2016-05-13 - print number 8157b [A08157 Detail]
Download: New_York-2015-A08157-Introduced.html
Bill Title: Relates to enhancing criminal investigations and prosecutions in relation to the integrity of statements of those accused of crimes and the integrity of eyewitness identifications.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced - Dead) 2016-05-13 - print number 8157b [A08157 Detail]
Download: New_York-2015-A08157-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8157
2015-2016 Regular Sessions
I N A S S E M B L Y
June 10, 2015
___________
Introduced by M. of A. LENTOL -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law, the family court act and the
executive law, in relation to improve the integrity of statements of
those accused of crimes and the integrity of eyewitness identifica-
tions, to enhance criminal investigations and prosecutions and to
promote confidence in the criminal 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. Section 60.45 of the criminal procedure law is amended by
2 adding a new subdivision 3 to read as follows:
3 3. (A) WHERE A PERSON IS SUBJECT TO CUSTODIAL INTERROGATION BY A
4 PUBLIC SERVANT AT A DETENTION FACILITY, THE ENTIRE CUSTODIAL INTERRO-
5 GATION, INCLUDING THE GIVING OF ANY REQUIRED ADVICE OF THE RIGHTS OF THE
6 INDIVIDUAL BEING QUESTIONED, AND THE WAIVER OF ANY RIGHTS BY THE INDI-
7 VIDUAL, SHALL BE RECORDED BY AN APPROPRIATE VIDEO RECORDING DEVICE IF
8 THE INTERROGATION INVOLVES A CLASS A-1 FELONY, EXCEPT ONE DEFINED IN
9 ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW; FELONY OFFENSES DEFINED IN
10 SECTION 130.95 AND 130.96 OF THE PENAL LAW; OR A FELONY OFFENSE DEFINED
11 IN ARTICLE ONE HUNDRED TWENTY-FIVE OR ONE HUNDRED THIRTY OF SUCH LAW
12 THAT IS DEFINED AS A CLASS B VIOLENT FELONY OFFENSE IN SECTION 70.02 OF
13 THE PENAL LAW. FOR PURPOSES OF THIS PARAGRAPH, THE TERM "DETENTION
14 FACILITY" SHALL MEAN A POLICE STATION, CORRECTIONAL FACILITY, HOLDING
15 FACILITY FOR PRISONERS, PROSECUTOR'S OFFICE OR OTHER FACILITY WHERE
16 PERSONS ARE HELD IN DETENTION IN CONNECTION WITH CRIMINAL CHARGES THAT
17 HAVE BEEN OR MAY BE FILED AGAINST THEM.
18 (B) NO CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE SUBJECT TO A
19 MOTION TO SUPPRESS PURSUANT TO SUBDIVISION THREE OF SECTION 710.20 OF
20 THIS CHAPTER BASED SOLELY UPON THE FAILURE TO VIDEO RECORD SUCH INTERRO-
21 GATION IN A DETENTION FACILITY AS DEFINED IN PARAGRAPH (A) OF THIS
22 SUBDIVISION. HOWEVER, WHERE THE PEOPLE OFFER INTO EVIDENCE A CONFESSION,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11558-01-5
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1 ADMISSION OR OTHER STATEMENT MADE BY A PERSON IN CUSTODY WITH RESPECT TO
2 HIS OR HER PARTICIPATION OR LACK OF PARTICIPATION IN AN OFFENSE SPECI-
3 FIED IN PARAGRAPH (A) OF THIS SUBDIVISION, THAT HAS NOT BEEN VIDEO
4 RECORDED, THE COURT SHALL CONSIDER THE FAILURE TO RECORD AS A FACTOR,
5 BUT NOT AS THE SOLE FACTOR, IN ACCORDANCE WITH PARAGRAPH (C) OF THIS
6 SUBDIVISION IN DETERMINING WHETHER SUCH CONFESSION, ADMISSION OR OTHER
7 STATEMENT SHALL BE ADMISSIBLE.
8 (C) NOTWITHSTANDING THE REQUIREMENT OF PARAGRAPH (A) OF THIS SUBDIVI-
9 SION, UPON A SHOWING OF GOOD CAUSE BY THE PROSECUTOR, THE CUSTODIAL
10 INTERROGATION NEED NOT BE RECORDED. GOOD CAUSE SHALL INCLUDE, BUT NOT BE
11 LIMITED TO:
12 (I) IF ELECTRONIC RECORDING EQUIPMENT MALFUNCTIONS.
13 (II) IF ELECTRONIC RECORDING EQUIPMENT IS NOT AVAILABLE BECAUSE IT WAS
14 OTHERWISE BEING USED.
15 (III) IF STATEMENTS ARE MADE IN RESPONSE TO QUESTIONS THAT ARE
16 ROUTINELY ASKED DURING ARREST PROCESSING.
17 (IV) IF THE STATEMENT IS SPONTANEOUSLY MADE BY THE SUSPECT AND NOT IN
18 RESPONSE TO POLICE QUESTIONING.
19 (V) IF THE STATEMENT IS MADE DURING AN INTERROGATION THAT IS CONDUCTED
20 WHEN THE INTERVIEWER IS UNAWARE THAT A QUALIFYING OFFENSE HAS OCCURRED.
21 (VI) IF THE STATEMENT IS MADE AT A LOCATION OTHER THAN THE "INTERVIEW
22 ROOM" BECAUSE THE SUSPECT CANNOT BE BROUGHT TO SUCH ROOM, E.G., THE
23 SUSPECT IS IN A HOSPITAL OR THE SUSPECT IS OUT OF STATE AND THAT STATE
24 IS NOT GOVERNED BY A LAW REQUIRING THE RECORDATION OF AN INTERROGATION.
25 (VII) IF THE STATEMENT IS MADE AFTER A SUSPECT HAS REFUSED TO PARTIC-
26 IPATE IN THE INTERROGATION IF IT IS RECORDED, AND APPROPRIATE EFFORT TO
27 DOCUMENT SUCH REFUSAL IS MADE.
28 (VIII) IF SUCH STATEMENT IS NOT RECORDED AS A RESULT OF AN INADVERTENT
29 ERROR OR OVERSIGHT, NOT THE RESULT OF ANY INTENTIONAL CONDUCT BY LAW
30 ENFORCEMENT PERSONNEL.
31 (IX) IF IT IS LAW ENFORCEMENT'S REASONABLE BELIEF THAT SUCH RECORDING
32 WOULD JEOPARDIZE THE SAFETY OF ANY PERSON OR REVEAL THE IDENTITY OF A
33 CONFIDENTIAL INFORMANT.
34 (X) IF SUCH STATEMENT IS MADE AT A LOCATION NOT EQUIPPED WITH A VIDEO
35 RECORDING DEVICE AND THE REASON FOR USING THAT LOCATION IS NOT TO
36 SUBVERT THE INTENT OF THE LAW. FOR PURPOSES OF THIS SECTION, THE TERM
37 "LOCATION" SHALL INCLUDE THOSE LOCATIONS SPECIFIED IN PARAGRAPH (B) OF
38 SUBDIVISION FOUR OF SECTION 305.2 OF THE FAMILY COURT ACT.
39 (D) IN THE EVENT THE COURT FINDS THAT THE PEOPLE HAVE NOT SHOWN GOOD
40 CAUSE FOR THE NON-RECORDING OF THE CONFESSION, ADMISSION, OR OTHER
41 STATEMENT, BUT DETERMINES THAT A NON-RECORDED CONFESSION, ADMISSION OR
42 OTHER STATEMENT IS NEVERTHELESS ADMISSIBLE BECAUSE IT WAS VOLUNTARILY
43 MADE THEN, UPON REQUEST OF THE DEFENDANT, THE COURT MUST INSTRUCT THE
44 JURY THAT THE PEOPLE'S FAILURE TO RECORD THE DEFENDANT'S CONFESSION,
45 ADMISSION OR OTHER STATEMENT AS REQUIRED BY THIS SECTION MAY BE WEIGHED
46 AS A FACTOR, BUT NOT AS THE SOLE FACTOR, IN DETERMINING WHETHER SUCH
47 CONFESSION, ADMISSION OR OTHER STATEMENT WAS VOLUNTARILY MADE, OR WAS
48 MADE AT ALL.
49 (E) VIDEO RECORDING AS REQUIRED BY THIS SECTION SHALL BE CONDUCTED IN
50 ACCORDANCE WITH STANDARDS ESTABLISHED BY RULE OF THE DIVISION OF CRIMI-
51 NAL JUSTICE SERVICES.
52 S 2. Subdivision 3 of Section 344.2 of the family court act is renum-
53 bered subdivision 4 and a new subdivision 3 is added to read as follows:
54 3. WHERE A RESPONDENT IS SUBJECT TO CUSTODIAL INTERROGATION BY A
55 PUBLIC SERVANT AT A FACILITY SPECIFIED IN SUBDIVISION FOUR OF SECTION
56 305.2 OF THIS ARTICLE, THE ENTIRE CUSTODIAL INTERROGATION, INCLUDING THE
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1 GIVING OF ANY REQUIRED ADVICE OF THE RIGHTS OF THE INDIVIDUAL BEING
2 QUESTIONED, AND THE WAIVER OF ANY RIGHTS BY THE INDIVIDUAL, SHALL BE
3 RECORDED AND GOVERNED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPHS
4 (A), (B), (C), (D) AND (E) OF SUBDIVISION THREE OF SECTION 60.45 OF THE
5 CRIMINAL PROCEDURE LAW.
6 S 3. Section 60.25 of the criminal procedure law, subparagraph (ii) of
7 paragraph (a) of subdivision 1 as amended by chapter 479 of the laws of
8 1977, is amended to read as follows:
9 S 60.25 Rules of evidence; identification by means of previous recogni-
10 tion, in absence of present identification.
11 1. In any criminal proceeding in which the defendant's commission of
12 an offense is in issue, testimony as provided in subdivision two may be
13 given by a witness when:
14 (a) Such witness testifies that:
15 (i) He OR SHE observed the person claimed by the people to be the
16 defendant either at the time and place of the commission of the offense
17 or upon some other occasion relevant to the case; and
18 (ii) On a subsequent occasion he OR SHE observed, under circumstances
19 consistent with such rights as an accused person may derive under the
20 constitution of this state or of the United States, a person OR, WHERE
21 THE OBSERVATION IS MADE PURSUANT TO A BLIND OR BLINDED PROCEDURE AS
22 DEFINED IN PARAGRAPH (C) OF THIS SUBDIVISION, A PICTORIAL, PHOTOGRAPHIC,
23 ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF A PERSON whom he OR
24 SHE recognized as the same person whom he OR SHE had observed on the
25 first or incriminating occasion; and
26 (iii) He OR SHE is unable at the proceeding to state, on the basis of
27 present recollection, whether or not the defendant is the person in
28 question; and
29 (b) It is established that the defendant is in fact the person whom
30 the witness observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
31 ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION THE WITNESS OBSERVED
32 AND RECOGNIZED on the second occasion. Such fact may be established by
33 testimony of another person or persons to whom the witness promptly
34 declared his OR HER recognition on such occasion AND BY SUCH PICTORIAL,
35 PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION.
36 (C) FOR PURPOSES OF THIS SECTION, A "BLIND OR BLINDED PROCEDURE" IS
37 ONE IN WHICH THE WITNESS IDENTIFIES A PERSON IN AN ARRAY OF PICTORIAL,
38 PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTIONS UNDER
39 CIRCUMSTANCES WHERE, AT THE TIME THE IDENTIFICATION IS MADE, THE PUBLIC
40 SERVANT ADMINISTERING SUCH PROCEDURE: (I) DOES NOT KNOW WHICH PERSON IN
41 THE ARRAY IS THE SUSPECT, OR (II) DOES NOT KNOW WHERE THE SUSPECT IS IN
42 THE ARRAY VIEWED BY THE WITNESS. THE FAILURE OF A PUBLIC SERVANT TO
43 FOLLOW SUCH A PROCEDURE SHALL BE ASSESSED SOLELY FOR PURPOSES OF THIS
44 ARTICLE AND SHALL RESULT IN THE PRECLUSION OF TESTIMONY REGARDING THE
45 IDENTIFICATION PROCEDURE AS EVIDENCE IN CHIEF, BUT SHALL NOT CONSTITUTE
46 A LEGAL BASIS TO SUPPRESS EVIDENCE MADE PURSUANT TO SUBDIVISION SIX OF
47 SECTION 710.20 OF THIS CHAPTER. THIS ARTICLE NEITHER LIMITS NOR EXPANDS
48 SUBDIVISION SIX OF SECTION 710.20 OF THIS CHAPTER.
49 2. Under circumstances prescribed in subdivision one OF THIS SECTION,
50 such witness may testify at the criminal proceeding that the person whom
51 he OR SHE observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
52 ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED AND
53 RECOGNIZED on the second occasion is the same person whom he OR SHE
54 observed on the first or incriminating occasion. Such testimony,
55 together with the evidence that the defendant is in fact the person whom
56 the witness observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
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1 ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED AND
2 RECOGNIZED on the second occasion, constitutes evidence in chief.
3 S 4. Section 60.30 of the criminal procedure law, as amended by chap-
4 ter 479 of the laws of 1977, is amended to read as follows:
5 S 60.30 Rules of evidence; identification by means of previous recogni-
6 tion, in addition to present identification.
7 In any criminal proceeding in which the defendant's commission of an
8 offense is in issue, a witness who testifies that (a) he OR SHE observed
9 the person claimed by the people to be the defendant either at the time
10 and place of the commission of the offense or upon some other occasion
11 relevant to the case, and (b) on the basis of present recollection, the
12 defendant is the person in question and (c) on a subsequent occasion he
13 OR SHE observed the defendant, OR WHERE THE OBSERVATION IS MADE PURSUANT
14 TO A BLIND OR BLINDED PROCEDURE, AS DEFINED IN THE CLOSING PARAGRAPH OF
15 SUBDIVISION ONE OF SECTION 60.25 OF THIS ARTICLE, A PICTORIAL, PHOTO-
16 GRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF THE
17 DEFENDANT, under circumstances consistent with such rights as an accused
18 person may derive under the constitution of this state or of the United
19 States, and then also recognized him OR HER OR THE PICTORIAL, PHOTO-
20 GRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF HIM OR HER
21 as the same person whom he OR SHE had observed on the first or incrimi-
22 nating occasion, may, in addition to making an identification of the
23 defendant at the criminal proceeding on the basis of present recol-
24 lection as the person whom he OR SHE observed on the first or incrimi-
25 nating occasion, also describe his OR HER previous recognition of the
26 defendant and testify that the person whom he OR SHE observed OR WHOSE
27 PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPROD-
28 UCTION HE OR SHE OBSERVED on such second occasion is the same person
29 whom he OR SHE had observed on the first or incriminating occasion.
30 Such testimony AND SUCH PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR
31 VIDEO RECORDED REPRODUCTION constitutes evidence in chief.
32 S 5. Subdivision 6 of section 710.20 of the criminal procedure law, as
33 amended by chapter 8 of the laws of 1976 and as renumbered by chapter
34 481 of the laws of 1983, is amended to read as follows:
35 6. Consists of potential testimony regarding an observation of the
36 defendant either at the time or place of the commission of the offense
37 or upon some other occasion relevant to the case, which potential testi-
38 mony would not be admissible upon the prospective trial of such charge
39 owing to an improperly made previous identification of the defendant OR
40 OF A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED
41 REPRODUCTION OF THE DEFENDANT by the prospective witness. A CLAIM THAT
42 THE PREVIOUS IDENTIFICATION OF THE DEFENDANT OR OF A PICTORIAL, PHOTO-
43 GRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF THE
44 DEFENDANT BY A PROSPECTIVE WITNESS DID NOT COMPLY WITH PARAGRAPH (C) OF
45 SUBDIVISION ONE OF SECTION 60.25 OF THIS CHAPTER OR WITH THE PROTOCOL
46 PROMULGATED IN ACCORDANCE WITH SUBDIVISION TWENTY OF SECTION EIGHT
47 HUNDRED THIRTY-SEVEN OF THE EXECUTIVE LAW SHALL NOT CONSTITUTE A LEGAL
48 BASIS TO SUPPRESS EVIDENCE PURSUANT TO THIS SUBDIVISION. A CLAIM THAT A
49 PUBLIC SERVANT FAILED TO COMPLY WITH PARAGRAPH (C) OF SUBDIVISION ONE OF
50 SECTION 60.25 OF THIS CHAPTER OR OF SUBDIVISION TWENTY OF SECTION EIGHT
51 HUNDRED THIRTY-SEVEN OF THE EXECUTIVE LAW SHALL NEITHER EXPAND NOR LIMIT
52 THE RIGHTS AN ACCUSED PERSON MAY DERIVE UNDER THE CONSTITUTION OF THIS
53 STATE OR OF THE UNITED STATES.
54 S 6. Subdivision 1 of section 710.30 of the criminal procedure law, as
55 separately amended by chapters 8 and 194 of the laws of 1976, is amended
56 to read as follows:
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1 1. Whenever the people intend to offer at a trial (a) evidence of a
2 statement made by a defendant to a public servant, which statement if
3 involuntarily made would render the evidence thereof suppressible upon
4 motion pursuant to subdivision three of section 710.20, or (b) testimony
5 regarding an observation of the defendant either at the time or place of
6 the commission of the offense or upon some other occasion relevant to
7 the case, to be given by a witness who has previously identified him OR
8 HER OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED
9 REPRODUCTION OF HIM OR HER as such, they must serve upon the defendant a
10 notice of such intention, specifying the evidence intended to be
11 offered.
12 S 7. Section 343.3 of the family court act, as added by chapter 920 of
13 the laws of 1982, is amended to read as follows:
14 S 343.3. Rules of evidence; identification by means of previous recog-
15 nition in absence of present identification. 1. In any juvenile delin-
16 quency proceeding in which the respondent's commission of a crime is in
17 issue, testimony as provided in subdivision two may be given by a
18 witness when:
19 (a) such witness testifies that:
20 (i) he OR SHE observed the person claimed by the presentment agency to
21 be the respondent either at the time and place of the commission of the
22 crime or upon some other occasion relevant to the case; and
23 (ii) on a subsequent occasion he OR SHE observed, under circumstances
24 consistent with such rights as an accused person may derive under the
25 constitution of this state or of the United States, a person, OR, WHERE
26 THE OBSERVATION IS MADE PURSUANT TO A BLIND OR BLINDED PROCEDURE AS
27 DEFINED HEREIN, A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO
28 RECORDED REPRODUCTION OF A PERSON whom he OR SHE recognized as the same
29 person whom he OR SHE had observed on the first incriminating occasion;
30 and
31 (iii) he OR SHE is unable at the proceeding to state, on the basis of
32 present recollection, whether or not the respondent is the person in
33 question; and
34 (b) it is established that the respondent is in fact the person whom
35 the witness observed and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
36 ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION THE WITNESS OBSERVED
37 AND RECOGNIZED on the second occasion. Such fact may be established by
38 testimony of another person or persons to whom the witness promptly
39 declared his OR HER recognition on such occasion AND BY SUCH PICTORIAL,
40 PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION.
41 (C) FOR PURPOSES OF THIS SECTION, A "BLIND OR BLINDED PROCEDURE" IS
42 ONE IN WHICH THE WITNESS IDENTIFIES A PERSON IN AN ARRAY OF PICTORIAL,
43 PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTIONS UNDER
44 CIRCUMSTANCES WHERE, AT THE TIME THE IDENTIFICATION IS MADE, THE PUBLIC
45 SERVANT ADMINISTERING SUCH PROCEDURE: (I) DOES NOT KNOW WHICH PERSON IN
46 THE ARRAY IS THE SUSPECT, OR (II) DOES NOT KNOW WHERE THE SUSPECT IS IN
47 THE ARRAY VIEWED BY THE WITNESS. THE FAILURE OF A PUBLIC SERVANT TO
48 FOLLOW SUCH A PROCEDURE SHALL BE ASSESSED SOLELY FOR PURPOSES OF THIS
49 ARTICLE AND SHALL RESULT IN THE PRECLUSION OF TESTIMONY REGARDING THE
50 IDENTIFICATION PROCEDURE AS EVIDENCE IN CHIEF, BUT SHALL NOT CONSTITUTE
51 A LEGAL BASIS TO SUPPRESS EVIDENCE MADE PURSUANT TO SUBDIVISION SIX OF
52 SECTION 710.20 OF THE CRIMINAL PROCEDURE LAW. THIS ARTICLE NEITHER
53 LIMITS NOT EXPANDS SUBDIVISION SIX OF SECTION 710.20 OF THE CRIMINAL
54 PROCEDURE LAW.
55 2. Under circumstances prescribed in subdivision one, such witness may
56 testify at the proceeding that the person whom he OR SHE observed and
A. 8157 6
1 recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO
2 RECORDED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on the second
3 occasion is the same person whom he OR SHE observed on the first or
4 incriminating occasion. Such testimony, together with the evidence that
5 the respondent is in fact the person whom the witness observed and
6 recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO
7 RECORDED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on the second
8 occasion, constitutes evidence in chief.
9 S 8. Section 343.4 of the family court act, as added by chapter 920 of
10 the laws of 1982, is amended to read as follows:
11 S 343.4. Rules of evidence; identification by means of previous recog-
12 nition, in addition to present identification. In any juvenile delin-
13 quency proceeding in which the respondent's commission of a crime is in
14 issue, a witness who testifies that: (a) he OR SHE observed the person
15 claimed by the presentment agency to be the respondent either at the
16 time and place of the commission of the crime or upon some other occa-
17 sion relevant to the case, and (b) on the basis of present recollection,
18 the respondent is the person in question, and (c) on a subsequent occa-
19 sion he OR SHE observed the respondent, OR, WHERE THE OBSERVATION IS
20 MADE PURSUANT TO A BLIND OR BLINDED PROCEDURE, A PICTORIAL, PHOTOGRAPH-
21 IC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF THE RESPONDENT
22 under circumstances consistent with such rights as an accused person may
23 derive under the constitution of this state or of the United States, and
24 then also recognized him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELEC-
25 TRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF HIM OR HER as the same
26 person whom he OR SHE had observed on the first or incriminating occa-
27 sion, may, in addition to making an identification of the respondent at
28 the delinquency proceeding on the basis of present recollection as the
29 person whom he OR SHE observed on the first or incriminating occasion,
30 also describe his OR HER previous recognition of the respondent and
31 testify that the person whom he OR SHE observed OR WHOSE PICTORIAL,
32 PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION HE OR
33 SHE OBSERVED on such second occasion is the same person whom he OR SHE
34 had observed on the first or incriminating occasion. Such testimony AND
35 SUCH PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED
36 REPRODUCTION constitutes evidence in chief. FOR PURPOSES OF THIS
37 SECTION, A "BLIND OR BLINDED PROCEDURE" SHALL BE AS DEFINED IN PARAGRAPH
38 (C) OF SUBDIVISION ONE OF SECTION 343.3 OF THIS PART.
39 S 9. Section 837 of the executive law is amended by adding a new
40 subdivision 20 to read as follows:
41 20. PROMULGATE A STANDARDIZED AND DETAILED WRITTEN PROTOCOL THAT IS
42 GROUNDED IN EVIDENCE-BASED PRINCIPLES FOR THE ADMINISTRATION OF PHOTO-
43 GRAPHIC ARRAY AND LIVE LINEUP IDENTIFICATION PROCEDURES FOR POLICE AGEN-
44 CIES AND STANDARDIZED FORMS FOR USE BY SUCH AGENCIES IN THE REPORTING
45 AND RECORDING OF SUCH IDENTIFICATION PROCEDURE. THE PROTOCOL SHALL
46 ADDRESS THE FOLLOWING TOPICS:
47 (A) THE SELECTION OF PHOTOGRAPHIC ARRAY AND LIVE LINEUP FILLER PHOTO-
48 GRAPHS OR PARTICIPANTS;
49 (B) INSTRUCTIONS GIVEN TO A WITNESS BEFORE CONDUCTING A PHOTOGRAPHIC
50 ARRAY OR LIVE LINEUP IDENTIFICATION PROCEDURE;
51 (C) THE DOCUMENTATION AND PRESERVATION OF RESULTS OF A PHOTOGRAPHIC
52 ARRAY OR LIVE LINEUP IDENTIFICATION PROCEDURE;
53 (D) PROCEDURES FOR ELICITING AND DOCUMENTING THE WITNESS'S CONFIDENCE
54 IN HIS OR HER IDENTIFICATION FOLLOWING A PHOTOGRAPHIC ARRAY OR LIVE
55 LINEUP IDENTIFICATION PROCEDURE, IN THE EVENT THAT AN IDENTIFICATION IS
56 MADE; AND
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1 (E) PROCEDURES FOR ADMINISTERING A PHOTOGRAPHIC ARRAY OR LIVE LINEUP
2 IDENTIFICATION PROCEDURE IN A MANNER DESIGNED TO PREVENT OPPORTUNITIES
3 TO INFLUENCE THE WITNESS.
4 S 10. Subdivision 4 of section 840 of the executive law is amended by
5 adding a new paragraph (c) to read as follows:
6 (C) DISSEMINATE THE WRITTEN POLICIES AND PROCEDURES PROMULGATED IN
7 ACCORDANCE WITH SUBDIVISION TWENTY OF SECTION EIGHT HUNDRED THIRTY-SEVEN
8 OF THIS ARTICLE TO ALL POLICE DEPARTMENTS IN THIS STATE AND IMPLEMENT A
9 TRAINING PROGRAM FOR ALL CURRENT AND NEW POLICE OFFICERS REGARDING THE
10 POLICIES AND PROCEDURES ESTABLISHED PURSUANT TO THAT SUBDIVISION.
11 S 11. This act shall take effect immediately; provided, however,
12 sections one and two of this act shall take effect June 1, 2017 and
13 apply to confessions, admissions or statements made on or after such
14 effective date; provided, further, sections three through ten of this
15 act shall take effect November 1, 2015.
