Bill Text: NY S05580 | 2015-2016 | General Assembly | Introduced
Bill Title: Relates to grand jury rules of evidence; allows a person who possesses immunity who gives false testimony and the evidence given by the person at the proceeding at which the person possessed immunity may be used against such person in any such prosecution for perjury or judgment for contempt; defines "corroborative evidence"; makes related changes.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2016-01-06 - REFERRED TO CODES [S05580 Detail]
Download: New_York-2015-S05580-Introduced.html
S T A T E O F N E W Y O R K
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5580
2015-2016 Regular Sessions
I N S E N A T E
May 14, 2015
___________
Introduced by Sen. AVELLA -- 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 grand jury
rules of evidence
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 1 of section 20.60 of the criminal procedure
2 law is amended to read as follows:
3 1. An oral or written statement made by a person in one jurisdiction
4 to a person in another jurisdiction by means of telecommunication, mail
5 or any other method of communication is deemed to be made in each such
6 jurisdiction. FOR PURPOSES OF THIS SUBDIVISION, SUCH STATEMENT SHALL
7 INCLUDE TESTIMONY GIVEN PURSUANT TO SUBDIVISION FOUR-A OF SECTION 190.30
8 OF THIS CHAPTER.
9 S 2. Subdivision 1 of section 50.10 of the criminal procedure law is
10 amended to read as follows:
11 1. "Immunity." A person who has been a witness in a legal proceed-
12 ing, and [who cannot, except as otherwise provided in this subdivision,
13 be convicted of any offense or subjected to any penalty or forfeiture
14 for or on account of any transaction, matter or thing concerning which
15 he gave evidence therein, possesses "immunity" from any such conviction,
16 penalty or forfeiture], NEITHER THE EVIDENCE GIVEN BY SUCH WITNESS NOR
17 ANY EVIDENCE DERIVED DIRECTLY OR INDIRECTLY THEREFROM MAY BE USED
18 AGAINST THE WITNESS IN THE SAME OR ANY OTHER CRIMINAL PROCEEDING,
19 POSSESSES "IMMUNITY". A person who possesses such immunity may never-
20 theless be convicted of perjury as a result of having given false testi-
21 mony in such legal proceeding, and may be convicted of or adjudged in
22 contempt as a result of having contumaciously refused to give evidence
23 therein, AND THE EVIDENCE GIVEN BY THE PERSON AT THE PROCEEDING AT WHICH
24 THE PERSON POSSESSED IMMUNITY MAY BE USED AGAINST SUCH PERSON IN ANY
25 SUCH PROSECUTION FOR PERJURY OR JUDGMENT FOR CONTEMPT.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11100-02-5
S. 5580 2
1 S 3. Section 60.22 of the criminal procedure law is amended by adding
2 a new subdivision 4 to read as follows:
3 4. FOR PURPOSES OF THIS SECTION, "CORROBORATIVE EVIDENCE" INCLUDES
4 EVIDENCE FROM ONE OR MORE OTHER ACCOMPLICES.
5 S 4. Paragraph (b) of subdivision 1 of section 170.30 of the criminal
6 procedure law is amended and a new subdivision 5 is added to read as
7 follows:
8 (b) [The defendant has received immunity from prosecution for the
9 offense charged, pursuant to sections 50.20 or 190.40] ALLEGATIONS IN
10 THE INFORMATION, SIMPLIFIED INFORMATION, PROSECUTOR'S INFORMATION OR
11 MISDEMEANOR COMPLAINT ARE BASED ON EVIDENCE PROTECTED BY IMMUNITY AS
12 DEFINED IN SUBDIVISION ONE OF SECTION 50.10 OF THIS CHAPTER; or
13 5. WHERE THE DEFENDANT ESTABLISHES IN HIS OR HER MOTION THAT IMMUNITY
14 HAS BEEN CONFERRED ON HIM OR HER, THE PEOPLE MUST THEN ESTABLISH, BY A
15 PREPONDERANCE OF THE EVIDENCE, THAT SUCH EVIDENCE WAS NOT DERIVED,
16 DIRECTLY OR INDIRECTLY, FROM THE EVIDENCE AS TO WHICH SUCH IMMUNITY WAS
17 CONFERRED. A MOTION SEEKING RELIEF ON THIS GROUND SHALL NOT BE ENTER-
18 TAINED BEFORE A MOTION MADE PURSUANT TO SUBDIVISION EIGHT OF SECTION
19 710.20 OF THIS CHAPTER, SEEKING SUPPRESSION OF POTENTIAL EVIDENCE AS TO
20 THE USE OF WHICH THE DEFENDANT POSSESSES IMMUNITY, HAS BEEN RESOLVED.
21 UPON GRANT OF SUCH A MOTION, THE COURT MUST DISMISS THE INSTRUMENT;
22 OTHERWISE, THE COURT MUST DENY THE MOTION TO DISMISS.
23 S 5. Paragraph (a) of subdivision 8 of section 190.30 of the criminal
24 procedure law, as added by chapter 279 of the laws of 2008, is amended,
25 subdivision 3 is amended by adding a new paragraph (h) and a new subdi-
26 vision 4-a is added to read as follows:
27 (H) THAT A PERSON'S OWNERSHIP OF, OR POSSESSORY RIGHT IN, PERSONAL
28 IDENTIFYING INFORMATION, AS DEFINED IN SUBDIVISION ONE OF SECTION 190.77
29 OF THE PENAL LAW, OR A PERSONAL IDENTIFICATION NUMBER, AS DEFINED IN
30 PARAGRAPH B OF SUBDIVISION TWO OF SECTION 190.77 OF THE PENAL LAW AS ANY
31 NUMBER OR CODE WHICH MAY BE USED ALONE OR IN CONJUNCTION WITH ANY OTHER
32 INFORMATION TO ASSUME THE IDENTITY OF ANOTHER PERSON OR ACCESS FINANCIAL
33 RESOURCES OR CREDIT OF ANOTHER PERSON, AND THE DEFENDANT'S LACK OF SUPE-
34 RIOR OR EQUAL RIGHT TO USE OR POSSESSION THEREOF.
35 4-A. WHENEVER THE DISTRICT ATTORNEY HAS REASON TO BELIEVE THAT A
36 WITNESS, OTHER THAN A WITNESS WHO WAIVES IMMUNITY PURSUANT TO SECTION
37 190.40 OF THIS ARTICLE, INCLUDING A DEFENDANT TESTIFYING ON HIS OR HER
38 OWN BEHALF PURSUANT TO SUBDIVISION FIVE OF SECTION 190.50 OF THIS ARTI-
39 CLE, IS LOCATED EITHER OUT-OF-STATE OR MORE THAN ONE HUNDRED MILES FROM
40 THE GRAND JURY PROCEEDING, THE PERSON MAY PROVIDE LIVE TESTIMONY BY
41 CLOSED CIRCUIT VIDEO OR VIDEOCONFERENCING IN THE SAME MANNER AS IF THE
42 WITNESS HAD TESTIFIED IN PERSON. THE AUDIOVISUAL TECHNOLOGY USED PURSU-
43 ANT TO THIS SECTION SHALL SEEK TO ENSURE THAT THE COMMUNICATION BE
44 REASONABLY SECURE FROM INTERCEPTION OR EAVESDROPPING BY ANYONE OTHER
45 THAN THE PERSONS COMMUNICATING, AND MUST ENSURE THAT THE WITNESS MAY BE
46 CLEARLY HEARD, SEEN AND EXAMINED.
47 (A) THE TESTIMONY OF THE WITNESS SHALL BE:
48 (I) TAKEN BY A CERTIFIED VIDEOGRAPHER WHO IS IN THE PHYSICAL PRESENCE
49 OF THE WITNESS. THE CERTIFIED VIDEOGRAPHER SHALL SIGN A WRITTEN DECLARA-
50 TION WHICH STATES THAT THE WITNESS DOES NOT POSSESS ANY NOTES OR OTHER
51 MATERIALS TO ASSIST IN THE WITNESS'S TESTIMONY;
52 (II) RECORDED AND PRESERVED THROUGH THE USE OF AUDIOVISUAL RECORDING
53 TECHNOLOGY; AND
54 (III) TRANSCRIBED BY A CERTIFIED COURT REPORTER.
55 (B) BEFORE GIVING TESTIMONY, THE WITNESS SHALL BE SWORN AND SIGN A
56 WRITTEN DECLARATION, WHICH ACKNOWLEDGES THAT THE WITNESS IS ALONE IN THE
S. 5580 3
1 ROOM WHERE THE TESTIMONY IS BEING TAKEN, THAT, TO HIS OR HER KNOWLEDGE,
2 NO ONE OTHER THAN THE CERTIFIED VIDEOGRAPHER IS HEARING HIS OR HER
3 TESTIMONY, THAT THE WITNESS UNDERSTANDS THAT HE OR SHE IS SUBJECT TO THE
4 JURISDICTION OF THE COURTS OF THIS STATE AND MAY BE SUBJECT TO CRIMINAL
5 PROSECUTION FOR THE COMMISSION OF ANY CRIME IN CONNECTION WITH HIS OR
6 HER TESTIMONY, INCLUDING, WITHOUT LIMITATION, PERJURY AND CONTEMPT, AND
7 THAT THE WITNESS CONSENTS TO SUCH JURISDICTION.
8 (C) THE ORIGINAL RECORDED TESTIMONY OF THE WITNESS MUST BE DELIVERED
9 TO THE CERTIFIED COURT REPORTER.
10 [(a) A business record may be received in such grand jury proceedings
11 as evidence of the following facts and similar facts stated therein:
12 (i) a person's use of, subscription to and charges and payments for
13 communication equipment and services including but not limited to equip-
14 ment or services provided by telephone companies and internet service
15 providers, but not including recorded conversations or images communi-
16 cated thereby; and
17 (ii) financial transactions, and a person's ownership or possessory
18 interest in any account, at a bank, insurance company, brokerage,
19 exchange or banking organization as defined in section two of the bank-
20 ing law.] ALL BUSINESS RECORDS AS DEFINED IN SUBDIVISION (A) OF RULE
21 4518 OF THE CIVIL PRACTICE LAW AND RULES AND SECTIONS THREE HUNDRED TWO
22 AND THREE HUNDRED SIX OF THE STATE TECHNOLOGY LAW MAY BE RECEIVED IN
23 SUCH GRAND JURY PROCEEDINGS AS EVIDENCE OF THE FACTS STATED THEREIN.
24 S 6. Section 210.35 of the criminal procedure law is amended by adding
25 a new subdivision 4-a to read as follows:
26 4-A. EVIDENCE PROTECTED BY USE IMMUNITY WAS USED TO OBTAIN THE INDICT-
27 MENT. A MOTION SEEKING RELIEF ON THIS GROUND SHALL NOT BE ENTERTAINED
28 BEFORE A MOTION MADE PURSUANT TO SUBDIVISION EIGHT OF SECTION 710.20 OF
29 THIS CHAPTER, SEEKING SUPPRESSION OF POTENTIAL EVIDENCE AS TO THE USE OF
30 WHICH THE DEFENDANT POSSESSES IMMUNITY, HAS BEEN RESOLVED. UPON THE
31 GRANTING OF SUCH A MOTION, THE COURT MUST DISMISS THE INDICTMENT; OTHER-
32 WISE, THE COURT MUST DENY THE MOTION TO DISMISS; OR
33 S 7. The opening paragraph and subdivisions 6 and 7 of section 710.20
34 of the criminal procedure law, the opening paragraph and subdivision 6
35 as amended by chapter 8 of the laws of 1976 and subdivision 6 as renum-
36 bered by chapter 481 of the laws of 1983, subdivision 7 as added by
37 chapter 744 of the laws of 1988, are amended and a new subdivision 8 is
38 added to read as follows:
39 Upon motion of a defendant who (a) is aggrieved by unlawful or improp-
40 er acquisition of evidence and has reasonable cause to believe that such
41 may be offered against him OR HER in a criminal action, or (b) claims
42 that improper identification testimony may be offered against him OR HER
43 in a criminal action, OR (C) CLAIMS THAT EVIDENCE AS TO THE USE OF WHICH
44 HE OR SHE POSSESSES IMMUNITY, AS DEFINED IN SUBDIVISION ONE OF SECTION
45 50.10 OF THIS CHAPTER, MAY BE OFFERED AGAINST HIM OR HER IN A CRIMINAL
46 ACTION, a court may, under circumstances prescribed in this article,
47 order that such evidence be suppressed or excluded upon the ground that
48 it:
49 6. Consists of potential testimony regarding an observation of the
50 defendant either at the time or place of the commission of the offense
51 or upon some other occasion relevant to the case, which potential testi-
52 mony would not be admissible upon the prospective trial of such charge
53 owing to an improperly made previous identification of the defendant by
54 the prospective witness[.]; OR
S. 5580 4
1 7. Consists of information obtained by means of a pen register or trap
2 and trace device installed or used in violation of the provisions of
3 article seven hundred five of this chapter[.]; OR
4 8. CONSISTS OF POTENTIAL EVIDENCE AS TO THE USE OF WHICH THE DEFENDANT
5 POSSESSES IMMUNITY. WHERE THE DEFENDANT ESTABLISHES THAT IMMUNITY HAS
6 BEEN CONFERRED ON HIM OR HER, THE PEOPLE MUST THEN ESTABLISH, BY A
7 PREPONDERANCE OF THE EVIDENCE, THAT SUCH EVIDENCE WAS NOT DERIVED,
8 DIRECTLY OR INDIRECTLY, FROM THE EVIDENCE AS TO WHICH IMMUNITY WAS
9 CONFERRED.
10 S 8. This act shall take effect on the first of November next succeed-
11 ing the date on which it shall have become a law.
