STATE OF NEW YORK ________________________________________________________________________ 4791 2017-2018 Regular Sessions IN SENATE March 1, 2017 ___________ Introduced by Sen. SQUADRON -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to the electron- ic recording of interrogations The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The criminal procedure law is amended by adding a new 2 section 60.49 to read as follows: 3 § 60.49 Rules of evidence; electronic recording of statements of defend- 4 ants. 5 1. Definitions. As used in this section: 6 (a) "Electronic recording" means a contemporaneous video and audio 7 recording, or where video recording is impracticable, a contemporaneous 8 audio recording. 9 (b) "Custodial interrogation" means any questioning which is conducted 10 in a place of detention or during which a reasonable person in the 11 subject's position would consider himself or herself to be in custody. 12 (c) "Place of detention" means a police station, correctional facili- 13 ty, holding facility for prisoners, prosecutor's office, or other 14 government facility where persons are held in detention in connection 15 with criminal charges which have been or may be filed against them. 16 2. During the prosecution of a felony, an oral, written, or sign 17 language statement of a defendant made during a custodial interrogation 18 shall be presumed inadmissible as evidence against a defendant in a 19 criminal proceeding unless an electronic recording is made of the custo- 20 dial interrogation in its entirety, including any administration and 21 waiver, or invocation of rights, the recording is substantially accurate 22 and not intentionally altered, and all individuals who speak during the 23 interrogation are identified by name on the recording. 24 3. If the court finds that the defendant was subjected to a custodial 25 interrogation in violation of subdivision two of this section, then any EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03870-01-7S. 4791 2 1 statements made by the defendant following that custodial interrogation, 2 even if otherwise in compliance with this section, are also presumed 3 inadmissible. 4 4. The people may rebut a presumption of inadmissibility through clear 5 and convincing evidence that the statement was both voluntary and if the 6 statement is inculpatory, was not made under circumstances creating a 7 substantial risk that the defendant might falsely incriminate himself or 8 herself, and: 9 (a) exigent circumstances existed necessitating interrogation at a 10 place in a location other than a police station, correctional facility, 11 holding facility for prisoners, prosecutor's office, or other government 12 facility where persons are held in detention in connection with criminal 13 charges which have been or may be filed against them, and where the 14 requisite recording equipment was not readily available; 15 (b) the accused refused to have his or her interrogation electron- 16 ically recorded, and the refusal itself was electronically recorded; or 17 (c) the failure to electronically record an entire interrogation was 18 the result of equipment failure and obtaining replacement equipment was 19 not feasible. 20 5. Notwithstanding the provisions of subdivisions two, three and four 21 of this section, the court may admit a statement if it believes, based 22 on a showing of good cause by the people, that suppression of the state- 23 ment is too harsh a remedy; the court must then instruct the jury that 24 it should consider the failure to make a recording as a fact adverse to 25 the people on any issue of voluntariness, of the content of the state- 26 ment, and of whether the statement was made. 27 6. Nothing in this section precludes the admission of: 28 (a) a statement made by the accused in open court at his or her trial, 29 before grand jury, or at a preliminary hearing; 30 (b) a spontaneous statement that is not made in response to interro- 31 gation; 32 (c) a statement made during questioning that is routinely asked during 33 the processing of the arrest of the suspect; 34 (d) a statement made during a custodial interrogation that is 35 conducted out-of-state; 36 (e) a statement obtained by a federal law enforcement officer in a 37 federal place of detention; 38 (f) a statement given at a time when the interrogators are unaware 39 that a felony has in fact occurred; or 40 (g) a statement, otherwise inadmissible under this section, that is 41 used only for impeachment and not as substantive evidence. 42 7. The people shall not destroy or alter any electronic recording made 43 of a custodial interrogation for a period of ten years, measured from 44 the date of judgment. 45 § 2. Section 710.20 of the criminal procedure law is amended by adding 46 a new subdivision 8 to read as follows: 47 8. Consists of a record or potential testimony reciting or describing 48 a statement obtained in violation of section 60.49 of this chapter. 49 § 3. Subdivision 1 of section 710.30 of the criminal procedure law, as 50 separately amended by chapters 8 and 194 of the laws of 1976, is amended 51 to read as follows: 52 1. Whenever the people intend to offer at a trial (a) evidence of a 53 statement made by a defendant to a public servant, which statement if 54 involuntarily made would render the evidence thereof suppressible upon 55 motion pursuant to subdivision three of section 710.20 of this article, 56 or (b) testimony regarding an observation of the defendant either at theS. 4791 3 1 time or place of the commission of the offense or upon some other occa- 2 sion relevant to the case, to be given by a witness who has previously 3 identified him as such, they must serve upon the defendant a notice of 4 such intention, specifying the evidence intended to be offered and, in 5 the case of a statement, whether it was electronically recorded. 6 § 4. This act shall take effect on the ninetieth day after it shall 7 have become a law, and shall apply to any custodial interrogations that 8 take place on and after such date.