Bill S7375A-2011

Relates to disqualification of employment for criminal history and the definition of ability to consent; provides hearsay exception for developmentally disabled

Provides an exception to the hearsay rule to allow testimony from persons with developmental disabilities.

Details

Actions

  • Jun 21, 2012: COMMITTED TO RULES
  • Jun 4, 2012: ADVANCED TO THIRD READING
  • May 31, 2012: 2ND REPORT CAL.
  • May 30, 2012: 1ST REPORT CAL.962
  • May 15, 2012: PRINT NUMBER 7375A
  • May 15, 2012: AMEND (T) AND RECOMMIT TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES
  • May 2, 2012: REFERRED TO MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES

Meetings

Votes

VOTE: COMMITTEE VOTE: - Mental Health and Developmental Disabilities - May 30, 2012
Ayes (8): McDonald, Ball, Bonacic, Hannon, Seward, Zeldin, Huntley, Klein
Ayes W/R (1): Peralta
Nays (1): Duane

Memo

BILL NUMBER:S7375A

TITLE OF BILL: An act to amend the criminal procedure law, in relation to providing an exception to the hearsay rule to allow testimony from persons with developmental disabilities

PURPOSE: Establishes the exception to hearsay rule for persons with Developmental Disabilities.

SUMMARY OF PROVISIONS: This Bill creates a statutory exception to the "hearsay rule" to allow an otherwise inadmissible statement made by a victim with developmental disabilities to be used in court if deemed reliable by a judge.

JUSTIFICATION: Research shows that 80 percent of developmentally disabled women and 32 percent of developmentally disabled men have been the victims of sexual assault, however, less than one percent of prosecuted sexual assault cases involve developmentally disabled victims. These cases are often not prosecuted because individuals with developmental disabilities have a perceived lack of credibility and can have severely limited mean of communications. By allowing the developmentally disabled to provide statements to those close to them or in the communicative means most comfortable to them they are able to provide effective testimony.

This legislation also provides protections for the accused by mandating detailed jury instructions and corroborating evidence at trial. Seven other states have enacted similar legislation.

This legislation is critical to strengthen protections for our vulnerable populations and hold the guilty accountable.

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: To be determined.

LOCAL FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 7375--A IN SENATE May 2, 2012 ___________
Introduced by Sen. McDONALD -- read twice and ordered printed, and when printed to be committed to the Committee on Mental Health and Develop- mental Disabilities -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the criminal procedure law, in relation to providing an exception to the hearsay rule to allow testimony from persons with developmental disabilities THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The criminal procedure law is amended by adding a new section 60.77 to read as follows: S 60.77 STATEMENTS OF PERSONS WITH DEVELOPMENTAL DISABILITIES; HEARSAY EXCEPTION. 1. AN OUT-OF-COURT STATEMENT MADE BY A PERSON WITH A DEVELOPMENTAL DISABILITY, AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE MENTAL HYGIENE LAW, NOT OTHERWISE ADMISSIBLE BY A STATUTE OR COURT RULE THAT PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY IS ADMISSIBLE IN ANY CRIMINAL OR DELINQUENCY PROCEEDING IN WHICH THE PERSON IS ALLEGED TO HAVE BEEN A VICTIM IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE SATISFIED. 2. (A) AN OUT-OF-COURT STATEMENT MADE BY A PERSON WITH A DEVELOPMENTAL DISABILITY, AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE MENTAL HYGIENE LAW, THAT DESCRIBES ALL OR PART OF AN OFFENSE DESCRIBED IN PARAGRAPH (B) OF THIS SUBDIVISION PERFORMED WITH, BY, ON, OR IN THE PRESENCE OF THE DECLARANT, AND THAT IS NOT OTHERWISE ADMISSIBLE BY A STATUTE OR COURT RULE THAT PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY, IS ADMISSIBLE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE SATISFIED. (B) THE EXCEPTION DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION APPLIES TO AN OUT-OF-COURT STATEMENT MADE BY A PERSON WITH A DEVELOP- MENTAL DISABILITY, WHICH STATEMENT DESCRIBES ALL OR PART OF ANY OF THE FOLLOWING OFFENSES: (I) ANY OFFENSE DESCRIBED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW;
(II) LABOR TRAFFICKING AS DESCRIBED IN SECTION 135.35 OF THE PENAL LAW; (III) AN OFFENSE INVOLVING INCEST AS DESCRIBED IN SECTION 255.25, 255.26 OR 255.27 OF THE PENAL LAW; (IV) SEX TRAFFICKING AS DESCRIBED IN SECTION 230.34 OF THE PENAL LAW; (V) ANY OFFENSE DESCRIBED IN ARTICLE TWO HUNDRED THIRTY-FIVE OF THE PENAL LAW; (VI) CRIMINAL ATTEMPT TO COMMIT ANY OF THE ACTS SPECIFIED IN THIS PARAGRAPH. 3. AN OUT-OF-COURT STATEMENT BY A PERSON WITH A DEVELOPMENTAL DISABIL- ITY, AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE MENTAL HYGIENE LAW, THAT DESCRIBES ANY ACT OF CHILD ABUSE, CHILD NEGLECT OR CHILD MALTREATMENT TO WHICH THE DECLARANT WAS SUBJECTED OR WHICH THE DECLARANT WITNESSED, AND THAT IS NOT OTHERWISE ADMISSIBLE BY A STATUTE OR COURT RULE THAT PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY, IS ADMISSIBLE IN EVIDENCE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING IN WHICH A CHILD IS ALLEGED TO BE A VICTIM OF CHILD ABUSE, NEGLECT OR MALTREATMENT, IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE SATISFIED. 4. AN OUT-OF-COURT STATEMENT MADE BY A PERSON WITH A DEVELOPMENTAL DISABILITY, AS DEFINED IN SUBDIVISION TWENTY-TWO OF SECTION 1.03 OF THE MENTAL HYGIENE LAW, THAT DESCRIBES ALL OR PART OF AN OFFENSE CONTAINED IN ARTICLE ONE HUNDRED TWENTY-FIVE OF THE PENAL LAW, OR THAT DESCRIBES AN ACT OF DOMESTIC VIOLENCE AS DEFINED IN SUBDIVISION ONE OF SECTION 481-C OF THE SOCIAL SERVICES LAW, NOT OTHERWISE ADMISSIBLE BY STATUTE OR COURT RULE THAT PROVIDES AN EXCEPTION TO THE OBJECTION OF HEARSAY, IS ADMISSIBLE IN EVIDENCE IN ANY CRIMINAL, DELINQUENCY, OR CIVIL PROCEEDING IF THE CONDITIONS OF SUBDIVISION FIVE OF THIS SECTION ARE SATISFIED. 5. THE EXCEPTIONS TO THE OBJECTION OF HEARSAY DESCRIBED IN SUBDIVI- SIONS ONE, TWO, THREE AND FOUR OF THIS SECTION SHALL APPLY ONLY IF THE COURT FINDS IN A HEARING CONDUCTED OUTSIDE THE PRESENCE OF THE JURY THAT THE TIME, CONTENT, AND CIRCUMSTANCES OF THE STATEMENT PROVIDE SUFFICIENT SAFEGUARDS OF RELIABILITY; AND EITHER: (A) THE STATEMENT IS A NON-TESTIMONIAL STATEMENT; OR (B) (I) THE DECLARANT TESTIFIES AT THE PROCEEDINGS; OR (II) IF THE DECLARANT IS UNAVAILABLE TO TESTIFY, THE DEFENDANT HAS HAD AN OPPORTUNITY TO CROSS-EXAMINE THE DECLARANT IN A PREVIOUS PROCEEDING AND THERE IS CORROBORATIVE EVIDENCE OF THE ACT WHICH IS THE SUBJECT OF THE STATEMENT. 6. IF A STATEMENT IS ADMITTED PURSUANT TO THIS SECTION, THE COURT SHALL INSTRUCT THE JURY IN THE FINAL WRITTEN INSTRUCTIONS THAT DURING THE PROCEEDING THE JURY HEARD EVIDENCE REPEATING A PERSON'S OUT-OF-COURT STATEMENT, THAT IT IS FOR THE JURY TO DETERMINE THE WEIGHT AND CREDIT TO BE GIVEN THE STATEMENT, AND THAT, IN MAKING THE DETERMINATION, THE JURY SHALL CONSIDER THE NATURE OF THE STATEMENT, THE CIRCUMSTANCES UNDER WHICH THE STATEMENT WAS MADE, AND ANY OTHER RELEVANT FACTOR. 7. THE PROPONENT OF THE STATEMENT SHALL GIVE THE ADVERSE PARTY REASON- ABLE NOTICE OF HIS OR HER INTENTION TO OFFER THE STATEMENT AND THE PARTICULARS OF THE STATEMENT. S 2. This act shall take effect immediately.

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