This bill has been amended

Bill S4484-2013

Relates to identifications by witnesses and the recording of interrogations

Relates to identifications by witnesses and providing for the video recording, videotaping or use of other appropriate video recording device of certain interrogations.

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  • Apr 3, 2013: REFERRED TO CODES

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BILL NUMBER:S4484

TITLE OF BILL: An act to amend the criminal procedure law and the family court act, in relation to identifications by witnesses and the video recording of interrogations

This measure is one in a series of proposals being introduced at the request of the Chief Judge of the State, upon recommendation of the New York State Justice Task Force, to enhance the accuracy of criminal investigations. This measure proposes a series of important reforms that include: (1) authorization for admission into evidence of pretrial identifications of the defendant under certain controlled circumstances; and (2) requirement that custodial interrogations of suspects with respect to enumerated A-1 and class B violent felonies be video recorded.

The Chief Judge commissioned the Justice Task Force in 2009 to "eradicate the systemic and individual harms caused by wrongful convictions, and to promote public safety by examining the causes of wrongful convictions and recommending reforms to safeguard against any such convictions in the future." Co-chaired by a Judge of the Court of Appeals and the current President of the New York State District Attorneys Association, with bipartisan representation from both Houses of the Legislature, the Executive Branch, police agencies, the Bar, appellate and trial judges, academicians and victim rights' advocates, the Justice Task Force has worked to develop a balanced and practical approach to identifying and redressing recurring practices that contribute to wrongful convictions without intruding on investigational and prosecutorial autonomy under our Constitution and laws. Two of the Task Force's recommendations, calling for expansion of the State's DNA Databank and providing criminal defendants with greater access to post-conviction DNA testing, were enacted into law last session. See L. 2012, c. 19. This measure is submitted to implement two further Task Force recommendations.

Admission into evidence of pretrial identifications of the defendant

The Task Force found that mistaken eyewitness identification is a leading cause of wrongful convictions. It is therefore essential to redress the most likely triggers for mistaken identification, both to enhance the accuracy of the criminal justice system, and to protect public safety compatibly with the administration of justice. To that end, the Task Force reached consensus on a number of best practices relating to witness instruction, confidence statements, identification procedures and live lineups.

Legislation is needed, however, to foster enhancement of the reliability of witness identifications. Also, it is needed to permit photo identifications - long barred from criminal trials under most circumstances - to be admitted into evidence at trial.

Accordingly, the instant measure would effectuate the Justice Task Force's recommendation that double-blind ("blind") administration of a photo array (i.e. where the person administering the array does not know who the accused is) sufficiently promotes the reliability of identifications to admit such evidence at trial. The measure also reflects the view, based on operational experience and academic

research, that where double-blind administration is impracticable, single-blind ("blinded") administration of a photo array (i.e., where the person administering the array knows who the accused is but does not know where the accused's picture appears in the array) also can sufficiently enhance the accuracy of identifications to justify admissibility. Under either of these limited circumstances, strictly defined in statute, a witness's identification of the accused in a pictorial, photographic, electronic, filmed or video recorded reproduction would become admissible at trial. This measure would apply in both criminal courts and Family Court juvenile delinquency proceedings, and where a public servant administers an array either by hand or with the aid of computer software (e.g. Photo Manager) to shuffle the array in a manner that is blind to the array administrator at the time of the test.

The measure also builds on the Justice Task Force's recommendations by requiring that, where a line-up identification is conducted, the person administering the line-up (and communicating with a witness as he or she makes an identification) be unaware of the identity of the accused. An exception is provided for those instances where there is no public servant available to administer the line-up who is unaware of the accused's identity.

To achieve the foregoing, sections one and two of this measure would make appropriate revisions in CPL 60.25 and CPL 60.30.

Section three would amend CPL 710.20(6) to authorize a motion to suppress evidence of a lineup identification or an eyewitness identification based on a pictorial, photographic, electronic, filmed or video recorded reproduction of the defendant not made consistent with the procedures outlined in this measure.

Section four would amend CPL 710.30(1) to require that where the People intend to use evidence of an eyewitness identification based on a pictorial, photographic, electronic, filmed or video recorded reproduction of the defendant, the People must serve on the defendant a notice of such intention (the provision already imposes this requirement where the People intend to use evidence of a line-up identification).

Sections five and six would amend Family Court Act sections 343.3 and 343.4, respectively, to authorize admission of image-assisted identifications consistent with the corresponding amendments to CP 60.25 and 60.30 in sections one and two of the bill.

Recording of custodial interrogations

The Justice Task Force concluded that video recording of custodial interrogations, which some prosecutors and police agencies now undertake voluntarily, can substantially diminish the incidence of wrongful convictions. The recording of a confession and its physical circumstances helps vitiate reasonable questions as to the voluntariness of the confession, strongly discouraging tactics that could be perceived as unduly coercive.

In drawing this conclusion, the Task Force was well aware of the need for operational practicality in enforcing any video-recording

requirement. The Task Force recognizes that implementing this change for all interrogations could raise substantial questions about costs and may have unintended consequences that impair the effective operation of the criminal justice system. The Task Force also recognizes that some custodial confessions occur under circumstances in which it may be impractical to ensure a video recording, and that disallowing admission of a freely-given confession under those circumstances also would impair the effective administration of the criminal justice system. Given the primary goal of promoting the accuracy of convictions, an over-broad reform might do more harm than good.

Reflecting these various considerations, the Justice Task Force recommends a balanced approach by which the video-recording requirement would apply only for confessions, admissions or other statements relating to crimes constituting A-1. non-drug felonies, and violent B felonies codified by Penal Law article 125 (homicide) or article 130 (sex offenses), and only where the confessions, admissions or other statements occur in a detention facility pursuant to a custodial interrogation.

Also reflecting the overriding need for practicality given the fast-paced and fluid environments in which confessions occur, the Justice Task Force recommends a broad range of good-faith explanations by which the People may justify not video recording a covered confession. Where the People offer such a good-faith justification, the failure to record would be excused and the confession would be admissible notwithstanding the lack of a video recording. Such good-faith justifications would include, but not be limited to:

*Malfunction or other inadvertent equipment error that prevents or interrupts recording;

*Unavailability of the equipment because it was otherwise being used at the time of the confession;

*Defendant's refusal to make a confession if recorded, or the defendant's request that it not be recorded, if such refusal or request is in writing signed by the defendant or otherwise memorialized by him or her (unless he or she declines to sign such a statement);

* The People's reasonable belief that such video recording would jeopardize the safety of any person or reveal the identity of a confidential informant; and

* The public servant having custody of the defendant reasonably believe, at the time of the defendant's confession, that it would not relate to the defendant's participation or lack of participation in an offense to which the recording requirement would apply.

If the People fail to video record a covered confession without a good-faith justification, the court still could admit the confession into evidence, but the court would need to instruct the jury, at the defendant's request, to weigh this failure as a factor in determining the voluntariness of the confession.

To accomplish the foregoing balanced approach compatibly with administering New York's large and diverse criminal justice system, section seven of this measure would add a new subdivision 3 of CPL 60.45 to require the video recording of a defendant's confession, admission or other statement, where the crime to which the defendant confesses constitutes an A-1 non-drug felony, or a violent B felony codified by Penal Law article 125 (homicide) or article 130 (sex offenses). This requirement would apply only where, pursuant to custodial interrogation, the defendant makes a confession, admission or other statement in a proper detention facility (as defined in the measure). This new subdivision would set forth a non-exclusive list of good-faith justifications for the failure to video record a covered confession.

Section eight of this measure would amend CPL 710.70 to provide that a court could admit a covered confession despite the failure to video record it without good-faith justification provided that, upon defendant's request, the court would need to issue an appropriate instruction that the jury could weigh the failure to record as a factor in determining the voluntariness of the confession.

Section nine of this measure would renumber subdivision 3 of Family Court Act section 344.2 to subdivision 4 and add a new subdivision 3 that parallels the video recording provision of CPL 60.45(3), as added by section seven of this measure. This subdivision would apply where any presentment agency seeks to admit evidence of a covered confession made pursuant to custodial interrogation.

Section ten would make this act effective immediately except that the provisions of sections seven through nine, relating to the recording of a defendant's statements while in custody, shall take effect on the first day of November in the year succeeding the year in which this act shall have become a law.

Legislative history:

None. New proposal.


Text

STATE OF NEW YORK ________________________________________________________________________ 4484 2013-2014 Regular Sessions IN SENATE April 3, 2013 ___________
Introduced by Sen. NOZZOLIO -- (at request of the Office of Court Admin- istration) -- 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 identifications by witnesses and the video recording of interrogations 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 OF THIS SECTION 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 AND PURSUANT TO AN IDENTIFICATION PROCEDURE SET FORTH IN PARAGRAPH (C) OF THIS SUBDIVISION, a person OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF A PERSON whom he OR SHE recognized as the same person whom he OR SHE had observed on the first or incriminating occa- sion; 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 VIDEO RECORDED 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 VIDEO RECORDED REPRODUCTION. (C) FOR PURPOSES OF THIS SECTION, AN "IDENTIFICATION PROCEDURE" MEANS: (I) THE WITNESS IDENTIFIES A PERSON AND, AT THE TIME THE IDENTIFICA- TION IS MADE, EACH PUBLIC SERVANT ADMINISTERING SUCH PROCEDURE AND WITH WHOM THE WITNESS COMMUNICATES DOES NOT KNOW WHO THE ACCUSED PERSON IS UNLESS, AT SUCH TIME, THERE IS NO PUBLIC SERVANT AVAILABLE TO ADMINISTER SUCH PROCEDURE WHO DOES NOT KNOW WHO THE ACCUSED PERSON IS; OR (II) THE WITNESS IDENTIFIES A PERSON IN AN ARRAY OF PICTORIAL, PHOTO- GRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTIONS AND SUCH IDENTIFICATION IS MADE UNDER CIRCUMSTANCES WHERE: (1) AT THE TIME THE IDENTIFICATION IS MADE, THE PUBLIC SERVANT ADMINISTERING SUCH PROCEDURE DOES NOT KNOW WHICH PERSON IN THE ARRAY IS THE ACCUSED PERSON OR, (2) IF, AT SUCH TIME, IT IS IMPRACTICABLE FOR THE PUBLIC SERVANT NOT TO KNOW WHO THE ACCUSED PERSON IS, THE PUBLIC SERVANT DOES NOT KNOW WHERE THE ACCUSED PERSON IS IN THE ARRAY VIEWED BY THE WITNESS. 2. Under circumstances prescribed in subdivision one OF THIS SECTION, 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 VIDEO RECORDED 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 VIDEO RECORDED 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 VIDEO RECORDED REPRODUCTION OF THE DEFENDANT, under circum- stances consistent with such rights as an accused person may derive under the constitution of this state or of the United States AND PURSU- ANT TO AN IDENTIFICATION PROCEDURE SET FORTH IN PARAGRAPH (C) OF SUBDI- VISION ONE OF SECTION 60.25 OF THIS ARTICLE, and then also recognized him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED 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 VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED on such second occasion
is the same person whom he OR SHE had observed on the first or incrimi- nating occasion. Such testimony AND SUCH PICTORIAL, PHOTOGRAPHIC, ELEC- TRONIC, FILMED OR VIDEO RECORDED 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 as 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 VIDEO RECORDED REPROD- UCTION 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 OF THIS ARTICLE, or (b) testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occa- sion relevant to the case, to be given by a witness who has previously identified him OR HER OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED 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. Section 343.3 of the family court act, as added by chapter 920 of the laws of 1982, is 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 AND PURSUANT TO AN IDENTIFICATION PROCEDURE SET FORTH IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 60.25 OF THE CRIMINAL PROCEDURE LAW, a person OR A PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED 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 VIDEO RECORDED 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 VIDEO RECORDED 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 VIDEO RECORDED 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 VIDEO RECORDED REPRODUCTION HE OR SHE OBSERVED AND RECOGNIZED on the second occasion, constitutes evidence in chief. S 6. Section 343.4 of the family court act, as added by chapter 920 of the laws of 1982, is amended to read as follows: 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 VIDEO RECORDED 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 PURSUANT TO AN IDENTIFICATION PROCEDURE SET FORTH IN PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 60.25 OF THE CRIMINAL PROCEDURE LAW, and then also recognized him OR HER OR THE PICTORIAL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED 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 respondent at the delin- quency 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, PHOTOGRAPH- IC, ELECTRONIC, FILMED OR VIDEO RECORDED 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 PICTORI- AL, PHOTOGRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION constitutes evidence in chief. S 7. Section 60.45 of the criminal procedure law is amended by adding a new subdivision 3 to read as follows: 3. (A) WHERE A DEFENDANT IS SUBJECT TO CUSTODIAL INTERROGATION AT A DETENTION FACILITY, ANY CONFESSION, ADMISSION OR OTHER STATEMENT HE OR SHE MAKES TO A PUBLIC SERVANT AT SUCH FACILITY WITH RESPECT TO SUCH DEFENDANT'S PARTICIPATION OR LACK OF PARTICIPATION IN ANY OF THE FOLLOW- ING OFFENSES SHALL BE VIDEO RECORDED, BY VIDEOTAPE OR OTHER APPROPRIATE VIDEO RECORDING DEVICE: A CLASS A-1 FELONY EXCEPT ONE DEFINED IN ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW; OR A FELONY OFFENSE DEFINED IN ARTICLE ONE HUNDRED TWENTY-FIVE OR ARTICLE ONE HUNDRED THIRTY OF SUCH LAW THAT IS DEFINED AS A CLASS B VIOLENT FELONY OFFENSE IN SECTION 70.02 OF SUCH LAW. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "PUBLIC SERVANT" SHALL HAVE THE MEANING PROVIDED IN SECTION 10.00 OF THE PENAL LAW AND A "DETENTION FACILITY" SHALL MEAN A POLICE STATION, CORRECTIONAL FACILITY, HOLDING FACILITY FOR PRISONERS, PROSECUTOR'S OFFICE OR OTHER FACILITY
WHERE PERSONS ARE HELD IN DETENTION IN CONNECTION WITH CRIMINAL CHARGES THAT HAVE BEEN OR MAY BE FILED AGAINST THEM. (B) WHERE THE PEOPLE OFFER INTO EVIDENCE A CONFESSION, ADMISSION OR OTHER STATEMENT MADE BY A DEFENDANT IN CUSTODY WITH RESPECT TO HIS OR HER PARTICIPATION OR LACK OF PARTICIPATION IN AN OFFENSE SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION THAT HAS NOT BEEN VIDEO RECORDED AS REQUIRED BY SUCH PARAGRAPH, THE COURT SHALL CONSIDER THE FAILURE TO COMPLY WITH THIS REQUIREMENT AS A FACTOR IN DETERMINING WHETHER SUCH CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE ADMISSIBLE UNLESS THE PEOPLE SHOW GOOD CAUSE FOR SUCH FAILURE, WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO: (I) MALFUNCTION OF THE VIDEO RECORDING EQUIPMENT OR OTHER INADVERTENT ERROR THAT PREVENTS OR INTERRUPTS THE VIDEO RECORDING, (II) UNAVAILABILITY OF SUCH EQUIPMENT BECAUSE IT WAS OTHERWISE BEING USED, (III) THE DEFENDANT'S REFUSAL TO MAKE A CONFESSION, ADMISSION OR OTHER STATEMENT IF IT IS VIDEO RECORDED OR HIS OR HER REQUEST THAT IT NOT BE VIDEO RECORDED (AND SUCH REFUSAL OR REQUEST IS IN WRITING SIGNED BY THE DEFENDANT, UNLESS THE DEFENDANT DECLINES TO DO SO), (IV) THE PEOPLE'S REASONABLE BELIEF THAT SUCH VIDEO RECORDING WOULD JEOPARDIZE THE SAFETY OF ANY PERSON OR REVEAL THE IDENTITY OF A CONFIDENTIAL INFORMANT, OR (V) THE PUBLIC SERVANT OR SERVANTS HAVING CUSTODY OF THE DEFENDANT REASON- ABLY BELIEVED, AT THE TIME THE DEFENDANT MADE THE CONFESSION, ADMISSION OR OTHER STATEMENT, THAT SUCH CONFESSION, ADMISSION OR OTHER STATEMENT WOULD NOT RELATE TO DEFENDANT'S PARTICIPATION OR LACK OF PARTICIPATION IN AN OFFENSE SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION. (C) VIDEO RECORDING AS REQUIRED BY THIS SUBDIVISION SHALL BE CONDUCTED IN ACCORDANCE WITH STANDARDS ESTABLISHED BY RULE OF THE DIVISION OF CRIMINAL JUSTICE SERVICES. S 8. Section 710.70 of the criminal procedure law is amended by adding a new subdivision 4 to read as follows: 4. IN THE EVENT THAT THE COURT DETERMINES THAT A CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE ADMISSIBLE, NOTWITHSTANDING THE PEOPLE'S FAILURE TO SHOW GOOD CAUSE PURSUANT TO SUBDIVISION THREE OF SECTION 60.45 OF THIS CHAPTER FOR FAILING TO VIDEO RECORD IT, THE COURT, IN ITS CHARGE TO THE JURY AND UPON REQUEST OF THE DEFENDANT, MUST INSTRUCT THE JURY THAT THE PEOPLE'S FAILURE TO RECORD THE DEFENDANT'S CONFESSION, ADMISSION OR OTHER STATEMENT AS REQUIRED BY SECTION 60.45 OF THIS CHAP- TER SHOULD BE WEIGHED AS A FACTOR IN DETERMINING WHETHER SUCH CONFESSION, ADMISSION OTHER STATEMENT WAS VOLUNTARILY MADE OR WAS MADE AT ALL. S 9. Subdivision 3 of section 344.2 of the family court act is renum- bered subdivision 4 and a new subdivision 3 is added to read as follows: 3. (A) WHERE A RESPONDENT IS SUBJECT TO CUSTODIAL INTERROGATION AT A FACILITY SPECIFIED IN SUBDIVISION FOUR OF SECTION 305.2 OF THIS ARTICLE, ANY CONFESSION, ADMISSION OR OTHER STATEMENT HE OR SHE MAKES TO A PUBLIC SERVANT AT SUCH FACILITY WITH RESPECT TO SUCH RESPONDENT'S PARTICIPATION OR LACK OF PARTICIPATION IN ANY OF THE FOLLOWING OFFENSES SHALL BE VIDEO RECORDED, BY VIDEOTAPE OR OTHER APPROPRIATE VIDEO RECORDING DEVICE: A CLASS A-1 FELONY EXCEPT ONE DEFINED IN ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW; OR A FELONY OFFENSE DEFINED IN ARTICLE ONE HUNDRED TWENTY-FIVE OR ARTICLE ONE HUNDRED THIRTY OF SUCH LAW THAT IS DEFINED AS A CLASS B VIOLENT FELONY OFFENSE IN SECTION 70.02 OF SUCH LAW. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "PUBLIC SERVANT" SHALL HAVE THE MEANING PROVIDED IN SECTION 10.00 OF THE PENAL LAW. (B) WHERE THE PRESENTMENT AGENCY OFFERS INTO EVIDENCE A CONFESSION, ADMISSION OR OTHER STATEMENT MADE BY A RESPONDENT IN CUSTODY WITH RESPECT TO HIS OR HER PARTICIPATION OR LACK OF PARTICIPATION IN AN
OFFENSE SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION THAT HAS NOT BEEN VIDEO RECORDED AS REQUIRED BY SUCH PARAGRAPH, THE COURT SHALL CONSIDER THE FAILURE TO COMPLY WITH THIS REQUIREMENT AS A FACTOR IN DETERMINING WHETHER SUCH CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE ADMISSI- BLE UNLESS THE PRESENTMENT AGENCY SHOWS GOOD CAUSE FOR SUCH FAILURE, WHICH SHALL INCLUDE, BUT NOT BE LIMITED TO: (I) MALFUNCTION OF THE VIDEO RECORDING EQUIPMENT OR OTHER INADVERTENT ERROR THAT PREVENTS OR INTER- RUPTS THE VIDEO RECORDING, (II) UNAVAILABILITY OF SUCH EQUIPMENT BECAUSE IT WAS OTHERWISE BEING USED, (III) RESPONDENT'S REFUSAL TO MAKE A CONFESSION, ADMISSION OR OTHER STATEMENT IF IT IS VIDEO RECORDED OR HIS OR HER REQUEST THAT IT NOT BE VIDEO RECORDED (AND SUCH REFUSAL OR REQUEST IS IN WRITING SIGNED BY THE RESPONDENT, UNLESS THE RESPONDENT DECLINES TO DO SO), (IV) THE PRESENTMENT AGENCY'S REASONABLE BELIEF THAT SUCH VIDEO RECORDING WOULD JEOPARDIZE THE SAFETY OF ANY PERSON OR REVEAL THE IDENTITY OF A CONFIDENTIAL INFORMANT, OR (V) THE PUBLIC SERVANT OR SERVANTS HAVING CUSTODY OF THE RESPONDENT REASONABLY BELIEVED, AT THE TIME THE RESPONDENT MADE THE CONFESSION, ADMISSION OR OTHER STATEMENT, THAT SUCH CONFESSION, ADMISSION OR OTHER STATEMENT WOULD NOT RELATE TO RESPONDENT'S PARTICIPATION OR LACK OF PARTICIPATION IN AN OFFENSE SPECI- FIED IN PARAGRAPH (A) OF THIS SUBDIVISION. (C) VIDEO RECORDING AS REQUIRED BY THIS SUBDIVISION SHALL BE CONDUCTED IN ACCORDANCE WITH STANDARDS ESTABLISHED BY RULE OF THE DIVISION OF CRIMINAL JUSTICE SERVICES. S 10. This act shall take effect immediately; provided that the provisions of sections seven, eight and nine of this act shall take effect on the first of November in the year next succeeding the year in which this act shall have become a law; provided, further, sections seven, eight and nine of this act shall apply only to confessions, admissions or other statements made on or after the effective date of such sections.

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