Provides for the admissibility of recordings and logs of inmate calls made by the department of correction of the city of New York, as business records.

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S7041A-2011 Actions

• May 17, 2012: PRINT NUMBER 7041A
• May 17, 2012: AMEND AND RECOMMIT TO JUDICIARY
• Apr 25, 2012: REFERRED TO JUDICIARY

S7041A-2011 Memo

BILL NUMBER:S7041A

TITLE OF BILL:
An act
to amend the civil practice law and rules, in relation to the
admissibility as business records of recordings and logs made by the
department of correction of the city of New York of inmate telephone
calls

PURPOSE:
Provides for the admissibility of recordings and logs of inmate calls
made by the department of correction of the city of New York, as
business records.

SUMMARY OF PROVISIONS:
Section one amends rule 4518 of the civil practice law and rules by
adding a new subdivision (h).

Section two is the effective date.

JUSTIFICATION:
It is current practice for The New York City Department of Correction
(DOC) to record telephone calls made by inmates as part of its
regular course of business. DOC provides notice to all people on the
call and does not record inmate conversations with their attorney or
other privileged communications. Computer generated logs for these
calls contain identifying information about the call, including the
time of call, the telephone number of origin, the telephone number
called, the inmate identification number used to make the call, and
the name of the inmate associated with that identification number.
These are then subject to subpoenas requesting copies of these phone
calls and directing DOC representatives to appear and testify at
court proceedings to authenticate the recordings.

DOC receives approximately 200 requests per week from District
Attorneys and other parties for recordings of inmate telephone calls
and the corresponding logs. Current law requires that these
recordings and logs be authenticated with in-court testimony before
they are admitted into evidence, causing DOC to send an employee to
court to provide authentication testimony which, depending on court
schedules, can cause the employee to spend hours or even an entire
day waiting to testify m what turns out to be a routine process of
authentication.

This proposal seeks the ability to authenticate recorded inmate phone
calls as a business record in writing provided it bears a
certification by an appropriate DOC representative, as opposed to
sending a representative to appear and authenticate the record in
person and diverting already scarce department employee time and
resources. Codifying these recordings and logs as admissible under
the business record exception is appropriate because the records are

made by DOC in the regular course of business and similar allowance
is permissible by law for other business records such as hospital
bills. Nothing in this proposal would preclude the court from
requesting the appropriate DOC representative from being called to
appear and authenticate the record in person, it would simply allow
for the written authentication as a business record. The staff and
resources currently dedicated to authenticating these records in
court could then be better utilized on other pressing legal matters
affecting DOC and on efficiently responding to the parties' requests
for records.

Accordingly, the Mayor urges the earliest possible favorable
consideration of this proposal by the Legislature.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

S7041A-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                   7041--A

                              I N  SENATE

                               April 25, 2012
                                 ___________

  Introduced  by  Sen.  LANZA  -- read twice and ordered printed, and when
    printed to be committed to the Committee  on  Judiciary  --  committee
    discharged, bill amended, ordered reprinted as amended and recommitted
    to said committee

  AN  ACT  to  amend  the civil practice law and rules, in relation to the
    admissibility as business records of recordings and logs made  by  the
    department  of  correction of the city of New York of inmate telephone
    calls

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Rule 4518 of the civil practice law and rules is amended by
  adding a new subdivision (h) to read as follows:

    (H)  A  RECORDING  MADE BY THE DEPARTMENT OF CORRECTION OF THE CITY OF
  NEW YORK OF AN INMATE'S TELEPHONE CALL, OR A LOG MADE BY SUCH DEPARTMENT
  CONTAINING IDENTIFYING INFORMATION ABOUT SUCH A CALL, SUCH AS  THE  TIME
  OF  THE  CALL,  TELEPHONE NUMBERS OF ORIGIN AND DESTINATION OF THE CALL,
  INMATE IDENTIFICATION NUMBER USED TO PLACE THE  CALL  AND  NAME  OF  THE
  INMATE  ASSOCIATED  WITH  SUCH  IDENTIFICATION  NUMBER, IS ADMISSIBLE IN
  EVIDENCE UNDER THIS RULE WITHOUT FURTHER NEED FOR FOUNDATION  TESTIMONY,
  PROVIDED  THAT THE RECORDING OR LOG IS ACCOMPANIED BY A CERTIFICATION OR
  AUTHENTICATION BY A CUSTODIAN OF THE RECORDING OR LOG OR ANOTHER  QUALI-
  FIED  PERSON  FROM  SUCH DEPARTMENT DESIGNATED FOR THAT PURPOSE THAT THE
  RECORDING OR LOG WAS MADE IN THE REGULAR  COURSE  OF  SUCH  DEPARTMENT'S
  BUSINESS,  AND  THAT  IT WAS THE REGULAR COURSE OF SUCH BUSINESS TO MAKE
  THE RECORDING AT THE TIME OF THE INMATE'S TELEPHONE CALL OR TO MAKE  THE
  LOG  AT  THE  TIME OF THE INMATE'S TELEPHONE CALL OR WITHIN A REASONABLE
  TIME THEREAFTER. PRIOR TO THE TRIAL OR HEARING,  THE  PARTY  SEEKING  TO
  INTRODUCE  THE  RECORDING  OR LOG INTO EVIDENCE SHALL PROVIDE AN ADVERSE
  PARTY WITH REASONABLE WRITTEN NOTICE OF THE INTENT TO OFFER THE  RECORD-
  ING  OR LOG AND SHALL MAKE THE RECORDING OR LOG AND THE CERTIFICATION OR
  AUTHENTICATION AVAILABLE FOR INSPECTION.
    S 2. This act shall take effect immediately.

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD15499-02-2