S T A T E   O F   N E W   Y O R K
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                                 5875--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              June 9, 2015
                               ___________

Introduced  by Sens. NOZZOLIO, GALLIVAN -- read twice and ordered print-
  ed, and when printed to be committed to  the  Committee  on  Rules  --
  committee  discharged,  bill amended, ordered reprinted as amended and
  recommitted to said committee

AN ACT to amend the criminal procedure law, the family court act and the
  executive law, in relation to statements of those  accused  of  crimes
  and eyewitness identifications, 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:

  Section  1.  Section 60.45 of the criminal procedure law is amended by
adding a new subdivision 3 to read as follows:
  3. (A) WHERE A PERSON IS  SUBJECT  TO  CUSTODIAL  INTERROGATION  BY  A
PUBLIC  SERVANT  AT  A DETENTION FACILITY, THE ENTIRE CUSTODIAL INTERRO-
GATION, INCLUDING THE GIVING OF ANY REQUIRED ADVICE OF THE RIGHTS OF THE
INDIVIDUAL BEING QUESTIONED, AND THE WAIVER OF ANY RIGHTS BY  THE  INDI-
VIDUAL,  SHALL  BE  RECORDED BY AN APPROPRIATE VIDEO RECORDING DEVICE IF
THE INTERROGATION INVOLVES A CLASS A-1 FELONY,  EXCEPT  ONE  DEFINED  IN
ARTICLE  TWO HUNDRED TWENTY OF THE PENAL LAW; FELONY OFFENSES DEFINED IN
SECTION 130.95 AND 130.96 OF THE PENAL LAW; OR A FELONY OFFENSE  DEFINED
IN  ARTICLE  ONE  HUNDRED  TWENTY-FIVE OR ONE HUNDRED THIRTY OF SUCH LAW
THAT IS DEFINED AS A CLASS B VIOLENT FELONY OFFENSE IN SECTION 70.02  OF
THE  PENAL  LAW.  FOR  PURPOSES  OF  THIS PARAGRAPH, THE TERM "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)  NO CONFESSION, ADMISSION OR OTHER STATEMENT SHALL BE SUBJECT TO A
MOTION TO SUPPRESS PURSUANT TO SUBDIVISION THREE OF  SECTION  710.20  OF
THIS CHAPTER BASED SOLELY UPON THE FAILURE TO VIDEO RECORD SUCH INTERRO-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11568-02-5
              

S. 5875--A                          2

GATION  IN  A  DETENTION  FACILITY  AS  DEFINED IN PARAGRAPH (A) OF THIS
SUBDIVISION. HOWEVER, WHERE THE PEOPLE OFFER INTO EVIDENCE A CONFESSION,
ADMISSION OR OTHER STATEMENT MADE BY A PERSON IN CUSTODY WITH RESPECT TO
HIS  OR  HER PARTICIPATION OR LACK OF PARTICIPATION IN AN OFFENSE SPECI-
FIED IN PARAGRAPH (A) OF THIS  SUBDIVISION,  THAT  HAS  NOT  BEEN  VIDEO
RECORDED,  THE  COURT  SHALL CONSIDER THE FAILURE TO RECORD AS A FACTOR,
BUT NOT AS THE SOLE FACTOR, IN ACCORDANCE WITH  PARAGRAPH  (C)  OF  THIS
SUBDIVISION  IN  DETERMINING WHETHER SUCH CONFESSION, ADMISSION OR OTHER
STATEMENT SHALL BE ADMISSIBLE.
  (C) NOTWITHSTANDING THE REQUIREMENT OF PARAGRAPH (A) OF THIS  SUBDIVI-
SION,  UPON  A  SHOWING  OF  GOOD CAUSE BY THE PROSECUTOR, THE CUSTODIAL
INTERROGATION NEED NOT BE RECORDED. GOOD CAUSE SHALL INCLUDE, BUT NOT BE
LIMITED TO:
  (I) IF ELECTRONIC RECORDING EQUIPMENT MALFUNCTIONS.
  (II) IF ELECTRONIC RECORDING EQUIPMENT IS NOT AVAILABLE BECAUSE IT WAS
OTHERWISE BEING USED.
  (III) IF STATEMENTS  ARE  MADE  IN  RESPONSE  TO  QUESTIONS  THAT  ARE
ROUTINELY ASKED DURING ARREST PROCESSING.
  (IV)  IF THE STATEMENT IS SPONTANEOUSLY MADE BY THE SUSPECT AND NOT IN
RESPONSE TO POLICE QUESTIONING.
  (V) IF THE STATEMENT IS MADE DURING AN INTERROGATION THAT IS CONDUCTED
WHEN THE INTERVIEWER IS UNAWARE THAT A QUALIFYING OFFENSE HAS OCCURRED.
  (VI) IF THE STATEMENT IS MADE AT A LOCATION OTHER THAN THE  "INTERVIEW
ROOM"  BECAUSE  THE  SUSPECT  CANNOT  BE BROUGHT TO SUCH ROOM, E.G., THE
SUSPECT IS IN A HOSPITAL OR THE SUSPECT IS OUT OF STATE AND  THAT  STATE
IS NOT GOVERNED BY A LAW REQUIRING THE RECORDATION OF AN INTERROGATION.
  (VII)  IF THE STATEMENT IS MADE AFTER A SUSPECT HAS REFUSED TO PARTIC-
IPATE IN THE INTERROGATION IF IT IS RECORDED, AND APPROPRIATE EFFORT  TO
DOCUMENT SUCH REFUSAL IS MADE.
  (VIII) IF SUCH STATEMENT IS NOT RECORDED AS A RESULT OF AN INADVERTENT
ERROR  OR  OVERSIGHT,  NOT  THE RESULT OF ANY INTENTIONAL CONDUCT BY LAW
ENFORCEMENT PERSONNEL.
  (IX) IF IT IS LAW ENFORCEMENT'S REASONABLE BELIEF THAT SUCH  RECORDING
WOULD  JEOPARDIZE  THE  SAFETY OF ANY PERSON OR REVEAL THE IDENTITY OF A
CONFIDENTIAL INFORMANT.
  (X) IF SUCH STATEMENT IS MADE AT A LOCATION NOT EQUIPPED WITH A  VIDEO
RECORDING  DEVICE  AND  THE  REASON  FOR  USING  THAT LOCATION IS NOT TO
SUBVERT THE INTENT OF THE LAW. FOR PURPOSES OF THIS  SECTION,  THE  TERM
"LOCATION"  SHALL  INCLUDE THOSE LOCATIONS SPECIFIED IN PARAGRAPH (B) OF
SUBDIVISION FOUR OF SECTION 305.2 OF THE FAMILY COURT ACT.
  (D) IN THE EVENT THE COURT FINDS THAT THE PEOPLE HAVE NOT  SHOWN  GOOD
CAUSE  FOR  THE  NON-RECORDING  OF  THE  CONFESSION, ADMISSION, OR OTHER
STATEMENT, BUT DETERMINES THAT A NON-RECORDED CONFESSION,  ADMISSION  OR
OTHER  STATEMENT  IS  NEVERTHELESS ADMISSIBLE BECAUSE IT WAS VOLUNTARILY
MADE THEN, UPON REQUEST OF THE DEFENDANT, THE COURT  MUST  INSTRUCT  THE
JURY  THAT  THE  PEOPLE'S  FAILURE TO RECORD THE DEFENDANT'S CONFESSION,
ADMISSION OR OTHER STATEMENT AS REQUIRED BY THIS SECTION MAY BE  WEIGHED
AS  A  FACTOR,  BUT  NOT AS THE SOLE FACTOR, IN DETERMINING WHETHER SUCH
CONFESSION, ADMISSION OR OTHER STATEMENT WAS VOLUNTARILY  MADE,  OR  WAS
MADE AT ALL.
  (E)  VIDEO RECORDING AS REQUIRED BY THIS SECTION SHALL BE CONDUCTED IN
ACCORDANCE WITH STANDARDS ESTABLISHED BY RULE OF THE DIVISION OF  CRIMI-
NAL JUSTICE SERVICES.
  S  2. 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:

S. 5875--A                          3

  3. WHERE A RESPONDENT IS  SUBJECT  TO  CUSTODIAL  INTERROGATION  BY  A
PUBLIC  SERVANT  AT  A FACILITY SPECIFIED IN SUBDIVISION FOUR OF SECTION
305.2 OF THIS ARTICLE, THE ENTIRE CUSTODIAL INTERROGATION, INCLUDING THE
GIVING OF ANY REQUIRED ADVICE OF THE  RIGHTS  OF  THE  INDIVIDUAL  BEING
QUESTIONED,  AND  THE  WAIVER  OF ANY RIGHTS BY THE INDIVIDUAL, SHALL BE
RECORDED AND GOVERNED IN ACCORDANCE WITH THE  PROVISIONS  OF  PARAGRAPHS
(A),  (B), (C), (D) AND (E) OF SUBDIVISION THREE OF SECTION 60.45 OF THE
CRIMINAL PROCEDURE LAW.
  S 3. 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,  WHERE
THE  OBSERVATION  IS  MADE  PURSUANT  TO A BLIND OR BLINDED PROCEDURE AS
DEFINED IN PARAGRAPH (C) OF THIS SUBDIVISION, 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 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 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, A "BLIND OR BLINDED PROCEDURE" IS
ONE IN WHICH THE WITNESS IDENTIFIES A PERSON IN AN ARRAY  OF  PICTORIAL,
PHOTOGRAPHIC,  ELECTRONIC,  FILMED OR VIDEO RECORDED REPRODUCTIONS UNDER
CIRCUMSTANCES WHERE, AT THE TIME THE IDENTIFICATION IS MADE, THE  PUBLIC
SERVANT  ADMINISTERING SUCH PROCEDURE: (I) DOES NOT KNOW WHICH PERSON IN
THE ARRAY IS THE SUSPECT, OR (II) DOES NOT KNOW WHERE THE SUSPECT IS  IN
THE  ARRAY  VIEWED  BY  THE  WITNESS. THE FAILURE OF A PUBLIC SERVANT TO
FOLLOW SUCH A PROCEDURE SHALL BE ASSESSED SOLELY FOR  PURPOSES  OF  THIS
ARTICLE  AND  SHALL  RESULT IN THE PRECLUSION OF TESTIMONY REGARDING THE
IDENTIFICATION PROCEDURE AS EVIDENCE IN CHIEF, BUT SHALL NOT  CONSTITUTE
A  LEGAL  BASIS TO SUPPRESS EVIDENCE MADE PURSUANT TO SUBDIVISION SIX OF
SECTION 710.20 OF THIS CHAPTER. THIS ARTICLE NEITHER LIMITS NOR  EXPANDS
SUBDIVISION SIX OF SECTION 710.20 OF THIS CHAPTER.
  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

S. 5875--A                          4

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  4. 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 WHERE THE OBSERVATION IS MADE PURSUANT
TO A BLIND OR BLINDED PROCEDURE, AS DEFINED IN THE CLOSING PARAGRAPH  OF
SUBDIVISION  ONE  OF  SECTION 60.25 OF THIS ARTICLE, A PICTORIAL, PHOTO-
GRAPHIC, ELECTRONIC,  FILMED  OR  VIDEO  RECORDED  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 recognized him OR HER  OR  THE  PICTORIAL,  PHOTO-
GRAPHIC, ELECTRONIC, FILMED OR VIDEO RECORDED REPRODUCTION OF HIM OR HER
as  the same person whom he OR SHE had observed on the first or incrimi-
nating occasion, may, in addition to making  an  identification  of  the
defendant  at  the  criminal  proceeding  on the basis of present recol-
lection as the person whom he OR SHE observed on the first  or  incrimi-
nating  occasion,  also  describe his OR HER previous recognition of the
defendant and testify that the person whom he OR SHE observed  OR  WHOSE
PICTORIAL,  PHOTOGRAPHIC,  ELECTRONIC,  FILMED OR VIDEO RECORDED REPROD-
UCTION 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
VIDEO RECORDED REPRODUCTION constitutes evidence in chief.
  S 5. 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
OF A PICTORIAL,  PHOTOGRAPHIC,  ELECTRONIC,  FILMED  OR  VIDEO  RECORDED
REPRODUCTION  OF THE DEFENDANT by the prospective witness.  A CLAIM THAT
THE PREVIOUS IDENTIFICATION OF THE DEFENDANT OR OF A  PICTORIAL,  PHOTO-
GRAPHIC,  ELECTRONIC,  FILMED  OR  VIDEO  RECORDED  REPRODUCTION  OF THE
DEFENDANT BY A PROSPECTIVE WITNESS DID NOT COMPLY WITH PARAGRAPH (C)  OF
SUBDIVISION  ONE  OF  SECTION 60.25 OF THIS CHAPTER OR WITH THE PROTOCOL
PROMULGATED IN ACCORDANCE  WITH  SUBDIVISION  TWENTY  OF  SECTION  EIGHT
HUNDRED  THIRTY-SEVEN  OF THE EXECUTIVE LAW SHALL NOT CONSTITUTE A LEGAL
BASIS TO SUPPRESS EVIDENCE PURSUANT TO THIS SUBDIVISION. A CLAIM THAT  A
PUBLIC SERVANT FAILED TO COMPLY WITH PARAGRAPH (C) OF SUBDIVISION ONE OF
SECTION  60.25 OF THIS CHAPTER OR OF SUBDIVISION TWENTY OF SECTION EIGHT
HUNDRED THIRTY-SEVEN OF THE EXECUTIVE LAW SHALL NEITHER EXPAND NOR LIMIT
THE RIGHTS AN ACCUSED PERSON MAY DERIVE UNDER THE CONSTITUTION  OF  THIS
STATE OR OF THE UNITED STATES.

S. 5875--A                          5

  S 6. 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
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  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 7. 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, a person, OR,  WHERE
THE  OBSERVATION  IS  MADE  PURSUANT  TO A BLIND OR BLINDED PROCEDURE AS
DEFINED HEREIN, 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.
  (C)  FOR  PURPOSES  OF THIS SECTION, A "BLIND OR BLINDED PROCEDURE" IS
ONE IN WHICH THE WITNESS IDENTIFIES A PERSON IN AN ARRAY  OF  PICTORIAL,
PHOTOGRAPHIC,  ELECTRONIC,  FILMED OR VIDEO RECORDED REPRODUCTIONS UNDER
CIRCUMSTANCES WHERE, AT THE TIME THE IDENTIFICATION IS MADE, THE  PUBLIC
SERVANT  ADMINISTERING SUCH PROCEDURE: (I) DOES NOT KNOW WHICH PERSON IN
THE ARRAY IS THE SUSPECT, OR (II) DOES NOT KNOW WHERE THE SUSPECT IS  IN
THE  ARRAY  VIEWED  BY  THE  WITNESS. THE FAILURE OF A PUBLIC SERVANT TO
FOLLOW SUCH A PROCEDURE SHALL BE ASSESSED SOLELY FOR  PURPOSES  OF  THIS
ARTICLE  AND  SHALL  RESULT IN THE PRECLUSION OF TESTIMONY REGARDING THE
IDENTIFICATION PROCEDURE AS EVIDENCE IN CHIEF, BUT SHALL NOT  CONSTITUTE
A  LEGAL  BASIS TO SUPPRESS EVIDENCE MADE PURSUANT TO SUBDIVISION SIX OF
SECTION 710.20 OF THE  CRIMINAL  PROCEDURE  LAW.  THIS  ARTICLE  NEITHER

S. 5875--A                          6

LIMITS  NOT  EXPANDS  SUBDIVISION  SIX OF SECTION 710.20 OF THE CRIMINAL
PROCEDURE LAW.
  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 8. 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, WHERE THE OBSERVATION IS
MADE PURSUANT TO A BLIND OR BLINDED PROCEDURE, A PICTORIAL,  PHOTOGRAPH-
IC,  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
then also recognized him OR HER OR THE  PICTORIAL,  PHOTOGRAPHIC,  ELEC-
TRONIC,  FILMED OR VIDEO RECORDED 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 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  PICTORIAL,  PHOTOGRAPHIC,  ELECTRONIC,  FILMED  OR  VIDEO RECORDED
REPRODUCTION  constitutes  evidence  in  chief.  FOR  PURPOSES  OF  THIS
SECTION, A "BLIND OR BLINDED PROCEDURE" SHALL BE AS DEFINED IN PARAGRAPH
(C) OF SUBDIVISION ONE OF SECTION 343.3 OF THIS PART.
  S  9.  Section  837  of  the  executive law is amended by adding a new
subdivision 20 to read as follows:
  20. PROMULGATE A STANDARDIZED AND DETAILED WRITTEN  PROTOCOL  THAT  IS
GROUNDED  IN  EVIDENCE-BASED PRINCIPLES FOR THE ADMINISTRATION OF PHOTO-
GRAPHIC ARRAY AND LIVE LINEUP IDENTIFICATION PROCEDURES FOR POLICE AGEN-
CIES AND STANDARDIZED FORMS FOR USE BY SUCH AGENCIES  IN  THE  REPORTING
AND  RECORDING  OF  SUCH  IDENTIFICATION  PROCEDURE.  THE PROTOCOL SHALL
ADDRESS THE FOLLOWING TOPICS:
  (A) THE SELECTION OF PHOTOGRAPHIC ARRAY AND LIVE LINEUP FILLER  PHOTO-
GRAPHS OR PARTICIPANTS;
  (B)  INSTRUCTIONS  GIVEN TO A WITNESS BEFORE CONDUCTING A PHOTOGRAPHIC
ARRAY OR LIVE LINEUP IDENTIFICATION PROCEDURE;
  (C) THE DOCUMENTATION AND PRESERVATION OF RESULTS  OF  A  PHOTOGRAPHIC
ARRAY OR LIVE LINEUP IDENTIFICATION PROCEDURE;

S. 5875--A                          7

  (D)  PROCEDURES FOR ELICITING AND DOCUMENTING THE WITNESS'S CONFIDENCE
IN HIS OR HER IDENTIFICATION FOLLOWING  A  PHOTOGRAPHIC  ARRAY  OR  LIVE
LINEUP  IDENTIFICATION PROCEDURE, IN THE EVENT THAT AN IDENTIFICATION IS
MADE; AND
  (E)  PROCEDURES  FOR ADMINISTERING A PHOTOGRAPHIC ARRAY OR LIVE LINEUP
IDENTIFICATION PROCEDURE IN A MANNER DESIGNED TO  PREVENT  OPPORTUNITIES
TO INFLUENCE THE WITNESS.
  S  10. Subdivision 4 of section 840 of the executive law is amended by
adding a new paragraph (c) to read as follows:
  (C) DISSEMINATE THE WRITTEN POLICIES  AND  PROCEDURES  PROMULGATED  IN
ACCORDANCE WITH SUBDIVISION TWENTY OF SECTION EIGHT HUNDRED THIRTY-SEVEN
OF  THIS ARTICLE TO ALL POLICE DEPARTMENTS IN THIS STATE AND IMPLEMENT A
TRAINING PROGRAM FOR ALL CURRENT AND NEW POLICE OFFICERS  REGARDING  THE
POLICIES AND PROCEDURES ESTABLISHED PURSUANT TO SUCH SUBDIVISION.
  S  11.  This act shall take effect on the thirtieth day after it shall
have become a law; provided, however, sections one and two of  this  act
shall  take  effect June 1, 2017 and apply to confessions, admissions or
statements made on or after  such  effective  date;  provided,  further,
sections  three  through  ten  of this act shall take effect November 1,
2015.