Relates to rules of evidence for identification by means of previous recognition; provides that in any criminal or juvenile delinquency proceeding in which the defendant's or respondent's commission of an offense is at issue, testimony may be given by a witness when such witness observed a pictorial, photographic, electronic, filmed or videotaped reproduction of a person whom he or she recognized as the same person he or she had observed on a previous incriminating occasion.

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S1999-2011 Actions

• Jan 31, 2012: referred to judiciary
• Jan 31, 2012: DELIVERED TO ASSEMBLY
• Jan 31, 2012: PASSED SENATE
• Jan 30, 2012: ADVANCED TO THIRD READING
• Jan 24, 2012: 2ND REPORT CAL.
• Jan 23, 2012: 1ST REPORT CAL.102
• Jan 4, 2012: REFERRED TO CODES
• Jan 4, 2012: returned to senate
• Jan 4, 2012: died in assembly
• Mar 7, 2011: referred to codes
• Mar 7, 2011: DELIVERED TO ASSEMBLY
• Mar 7, 2011: PASSED SENATE
• Mar 3, 2011: ADVANCED TO THIRD READING
• Mar 2, 2011: 2ND REPORT CAL.
• Mar 1, 2011: 1ST REPORT CAL.113
• Jan 14, 2011: REFERRED TO CODES

S1999-2011 Meetings

Codes: Jan 23, 2012, Codes: Mar 1, 2011

S1999-2011 Calendars

Active List: Jan 31, 2012 , Active List: Mar 7, 2011 , Floor Calendar: Jan 24, 2012 , Floor Calendar: Jan 30, 2012 , Floor Calendar: Jan 31, 2012 , Floor Calendar: Mar 2, 2011 , Floor Calendar: Mar 3, 2011 , Floor Calendar: Mar 7, 2011

S1999-2011 Votes

S1999-2011 Memo

BILL NUMBER:S1999

TITLE OF BILL:
An act
to amend the criminal procedure law and the family court act,
in relation to evidence of
identification

PURPOSE:
To permit witnesses to testify regarding
out-of-court
identifications of defendants made by means of pictorial,
photographic, electronic, filmed or videotaped reproductions of such
defendants.

SUMMARY OF PROVISIONS:
This bill amends the following
sections of the
Criminal Procedure Law dealing with the rules of evidence: 60.25
(a)(1); 60.30; 710.20(6) and 710.30(1). This bill also amends the
corresponding sections of the Family Court Act dealing with the rules
of evidence with regard to juveniles, which are as follows: 343.3;
and 343.4. These amendments add provisions to allow identification of
defendants by pictorial, photographic, electronic, filmed or
videotaped reproduction.

JUSTIFICATION:
New York is alone in prohibiting the admission of evidence of an
out-of-court identification conducted by other than corporeal means.
An identification by photo array, no matter how fairly conducted, is
inadmissible as part of the prosecution's case-in-chief. It is the
rule in the Federal System and in the other 49 states that
out-of-court photographic identification be treated the same as
corporeal identifications (see Federal Rule of Evidence 801
(d)(1)(C). These jurisdictions recognize that there is no valid
reason for an absolute prohibition against trial testimony regarding
photographic identifications.
All identification procedures are subject to the same pretrial
hearings mandated by United States v. Wade
388 U.S.218 (1967).
Significantly. the current New York Law prohibition antedates the
development of the Wade hearing and was intended
to provide trial
courts with the means to insure the propriety of extrajudicial
identifications. Since the Wade decision, the
existing New York Law is no longer justified.

Non-suggestive photo identifications are legitimate law enforcement
tools. When these identifications are made known to jurors, they will
be better able to understand the basis for a subsequent in-court
identification. In addition, when an arrest results from a
photographic identification, the prosecution must now follow an often
tortured course of proof to withhold the evidence of such an
identification from the jury. The result is that the jurors are
often hard pressed to understand the circumstances that led to the
arrest in the case.


Sufficient protection against identifications of insufficient or
questionable certainty are provided by the pretrial Wade
hearing and
the availability of witnesses for cross-examination. As tong as a
photographic or other non-corporeal identification meets the required
legal tests of fairness and reliability, there is no valid reason to
withhold it from the trier of fact. Indeed, to withhold such evidence
in criminal trials is to create needless uncertainty and an
unwarranted risk of unjust results. By permitting witnesses to
testify regarding out-of-court identifications of defendants made by
means of pictorial. photographic, electronic, filmed or videotaped
reproductions, this bill will permit jurors to more accurately know
the facts of the case and thus arrive at a verdict more accurately
related to those facts.

LEGISLATIVE HISTORY:
2007/2008 - S.638 - Passed Senate /Assembly Codes
2005/2006 - S.486 - Passed Senate/Assembly Codes
2003/2004 - S.3827-A - Passed Senate/Assembly Codes
2001/2002 - S.59 - Passed Senate/Assembly Codes
1999/2000 - S.130 - Passed Senate/Assembly Codes
1997/1998 - S.3503 - Passed Senate/Assembly Codes

FISCAL IMPLICATIONS:
None to the State.

EFFECTIVE DATE:
This act shall take effect on the first day of
November next succeeding the date on which it shall have become a law.

S1999-2011 Text

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

                                    1999

                         2011-2012 Regular Sessions

                              I N  SENATE

                              January 14, 2011
                                 ___________

  Introduced  by  Sen.  SKELOS -- read twice and ordered printed, and when
    printed to be committed to the Committee on Codes

  AN ACT to amend the criminal procedure law and the family court act,  in
    relation to evidence of identification

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


    Section 1. Section 60.25 of the criminal procedure  law,  subparagraph
  (ii)  of paragraph (a) of subdivision 1 as amended by chapter 479 of the
  laws of 1977, is amended to read as follows:

  S 60.25 Rules of evidence; identification by means of previous  recogni-
            tion, in absence of present identification.
    1.  In  any criminal proceeding in which the defendant's commission of
  an offense is in issue, testimony as provided in subdivision two may  be
  given by a witness when:

    (a) Such witness testifies that:

    (i)  He  OR  SHE  observed  the person claimed by the people to be the
  defendant either at the time and place of the commission of the  offense
  or upon some other occasion relevant to the case; and
    (ii)  On a subsequent occasion he OR SHE observed, under circumstances
  consistent with such rights as an accused person may  derive  under  the
  constitution of this state or of the United States, a person OR A PICTO-
  RIAL,  PHOTOGRAPHIC,  ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF A
  PERSON whom he OR SHE recognized as the same person whom he OR  SHE  had
  observed on the first or incriminating occasion; and
    (iii)  He OR SHE is unable at the proceeding to state, on the basis of
  present recollection, whether or not the  defendant  is  the  person  in
  question; and
    (b)  It  is  established that the defendant is in fact the person whom
  the witness observed and recognized OR  WHOSE  PICTORIAL,  PHOTOGRAPHIC,
  ELECTRONIC,  FILMED  OR VIDEOTAPED REPRODUCTION THE WITNESS OBSERVED AND
  RECOGNIZED on the second occasion.   Such fact  may  be  established  by

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD06171-01-1

 S. 1999                             2

  testimony  of  another  person  or  persons to whom the witness promptly
  declared his OR HER recognition on such occasion AND BY SUCH  PICTORIAL,
  PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION.
    2. Under circumstances prescribed in subdivision one, such witness may
  testify  at  the  criminal  proceeding  that  the  person whom he OR SHE
  observed and recognized OR WHOSE  PICTORIAL,  PHOTOGRAPHIC,  ELECTRONIC,
  FILMED  OR  VIDEOTAPED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on
  the second occasion is the same person whom he OR SHE  observed  on  the
  first  or  incriminating  occasion.    Such testimony, together with the
  evidence that the defendant is in  fact  the  person  whom  the  witness
  observed  and  recognized  OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC,
  FILMED OR VIDEOTAPED REPRODUCTION HE OR SHE OBSERVED AND  RECOGNIZED  on
  the second occasion, constitutes evidence in chief.
    S  2. Section 60.30 of the criminal procedure law, as amended by chap-
  ter 479 of the laws of 1977, is amended to read as follows:

  S 60.30  Rules of evidence; identification by means of previous recogni-
            tion, in addition to present identification.
    In any criminal proceeding in which the defendant's commission  of  an
  offense is in issue, a witness who testifies that (a) he OR SHE observed
  the  person claimed by the people to be the defendant either at the time
  and place of the commission of the offense or upon some  other  occasion
  relevant  to the case, and (b) on the basis of present recollection, the
  defendant is the person in question and (c) on a subsequent occasion  he
  OR SHE observed the defendant, OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC,
  FILMED  OR VIDEOTAPED REPRODUCTION OF THE DEFENDANT, under circumstances
  consistent with such rights as an accused person may  derive  under  the
  constitution of this state or of the United States, and then also recog-
  nized  him  OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR
  VIDEOTAPED REPRODUCTION OF HIM OR HER as the same person whom he OR  SHE
  had observed on the first or incriminating occasion, may, in addition to
  making  an identification of the defendant at the criminal proceeding on
  the basis of present recollection as the person whom he OR SHE  observed
  on  the first or incriminating occasion, also describe his OR HER previ-
  ous recognition of the defendant and testify that the person whom he  OR
  SHE  observed  OR  WHOSE  PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR
  VIDEOTAPED REPRODUCTION HE OR SHE OBSERVED on such  second  occasion  is
  the  same person whom he OR SHE had observed on the first or incriminat-
  ing occasion.  Such testimony AND SUCH  PICTORIAL,  PHOTOGRAPHIC,  ELEC-
  TRONIC, FILMED OR VIDEOTAPED REPRODUCTION constitutes evidence in chief.
    S 3. Subdivision 6 of section 710.20 of the criminal procedure law, as
  amended  by  chapter 8 of the laws of 1976 and renumbered by chapter 481
  of the laws of 1983, is amended to read as follows:

    6.  Consists of potential testimony regarding an  observation  of  the
  defendant  either  at the time or place of the commission of the offense
  or upon some other occasion relevant to the case, which potential testi-
  mony would not be admissible upon the prospective trial of  such  charge
  owing  to an improperly made previous identification of the defendant OR
  A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION
  OF THE DEFENDANT by the prospective witness.
    S 4. Subdivision 1 of section 710.30 of the criminal procedure law, as
  separately amended by chapters 8 and 194 of the laws of 1976, is amended
  to read as follows:

    1.  Whenever the people intend to offer at a trial (a) evidence  of  a
  statement  made  by  a defendant to a public servant, which statement if
  involuntarily made would render the evidence thereof  suppressible  upon
  motion pursuant to subdivision three of section 710.20, or (b) testimony

 S. 1999                             3

  regarding an observation of the defendant either at the time or place of
  the  commission  of  the offense or upon some other occasion relevant to
  the case, to be given by a witness who has previously identified him  OR
  HER  OR  A  PICTORIAL,  PHOTOGRAPHIC,  ELECTRONIC,  FILMED OR VIDEOTAPED
  REPRODUCTION OF HIM OR HER as such, they must serve upon the defendant a
  notice of  such  intention,  specifying  the  evidence  intended  to  be
  offered.
    S  5.  Sections  343.3  and 343.4 of the family court act, as added by
  chapter 920 of the laws of 1982, are amended to read as follows:

    S 343.3. Rules of evidence; identification by means of previous recog-
  nition in absence of present identification. 1. In any  juvenile  delin-
  quency  proceeding in which the respondent's commission of a crime is in
  issue, testimony as provided in  subdivision  two  may  be  given  by  a
  witness when:

    (a) such witness testifies that:

    (i) he OR SHE observed the person claimed by the presentment agency to
  be  the respondent either at the time and place of the commission of the
  crime or upon some other occasion relevant to the case; and
    (ii) on a subsequent occasion he OR SHE observed, under  circumstances
  consistent  with  such  rights as an accused person may derive under the
  constitution of this state or of the United States, a person OR A PICTO-
  RIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION  OF  A
  PERSON  whom  he OR SHE recognized as the same person whom he OR SHE had
  observed on the first incriminating occasion; and
    (iii) he OR SHE is unable at the proceeding to state, on the basis  of
  present  recollection,  whether  or  not the respondent is the person in
  question; and
    (b) it is established that the respondent is in fact the  person  whom
  the  witness  observed  and recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC,
  ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION THE WITNESS  OBSERVED  AND
  RECOGNIZED  on  the  second  occasion.  Such  fact may be established by
  testimony of another person or persons  to  whom  the  witness  promptly
  declared  his OR HER recognition on such occasion AND BY SUCH PICTORIAL,
  PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION.
    2. Under circumstances prescribed in subdivision one, such witness may
  testify at the proceeding that the person whom he OR  SHE  observed  and
  recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDE-
  OTAPED  REPRODUCTION  HE  OR  SHE  OBSERVED AND RECOGNIZED on the second
  occasion is the same person whom he OR SHE  observed  on  the  first  or
  incriminating  occasion. Such testimony, together with the evidence that
  the respondent is in fact the  person  whom  the  witness  observed  and
  recognized OR WHOSE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDE-
  OTAPED  REPRODUCTION  HE  OR  SHE  OBSERVED AND RECOGNIZED on the second
  occasion, constitutes evidence in chief.
    S 343.4. Rules of evidence; identification by means of previous recog-
  nition, in addition to present identification. In  any  juvenile  delin-
  quency  proceeding in which the respondent's commission of a crime is in
  issue, a witness who testifies that:  (a) he OR SHE observed the  person
  claimed  by  the  presentment  agency to be the respondent either at the
  time and place of the commission of the crime or upon some  other  occa-
  sion relevant to the case, and (b) on the basis of present recollection,
  the  respondent is the person in question, and (c) on a subsequent occa-
  sion he OR SHE observed the respondent, OR  A  PICTORIAL,  PHOTOGRAPHIC,
  ELECTRONIC,  FILMED  OR  VIDEOTAPED REPRODUCTION OF THE RESPONDENT under
  circumstances consistent with such  rights  as  an  accused  person  may
  derive under the constitution of this state or of the United States, and

 S. 1999                             4

  then  also  recognized  him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELEC-
  TRONIC, FILMED OR VIDEOTAPED REPRODUCTION OF HIM  OR  HER  as  the  same
  person  whom  he OR SHE had observed on the first or incriminating occa-
  sion,  may, in addition to making an identification of the respondent at
  the delinquency proceeding on the basis of present recollection  as  the
  person  whom  he OR SHE observed on the first or incriminating occasion,
  also describe his OR HER previous  recognition  of  the  respondent  and
  testify  that  the  person  whom  he OR SHE observed OR WHOSE PICTORIAL,
  PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEOTAPED REPRODUCTION  HE  OR  SHE
  OBSERVED  on  such second occasion is the same person whom he OR SHE had
  observed on the first or incriminating occasion. Such testimony AND SUCH
  PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR  VIDEOTAPED  REPRODUCTION
  constitutes evidence in chief.
    S 6. This act shall take effect on the first of November next succeed-
  ing the date on which it shall have become a law.