Bill Text: NY S05786 | 2023-2024 | General Assembly | Introduced

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Bill Title: Enhances criminal investigations and prosecutions in relation to the integrity of statements of those accused of crimes and to promote confidence in the criminal justice system.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2024-01-03 - REFERRED TO CODES [S05786 Detail]

Download: New_York-2023-S05786-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          5786

                               2023-2024 Regular Sessions

                    IN SENATE

                                     March 16, 2023
                                       ___________

        Introduced  by  Sen. SALAZAR -- 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 statements of those accused of crimes to enhance criminal
          investigations and prosecutions and to promote confidence in the crim-
          inal justice system of this state

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Subdivision  3 of section 60.45 of the criminal procedure
     2  law, as added by section 1 of part VVV of chapter  59  of  the  laws  of
     3  2017, is amended to read as follows:
     4    3.  (a)  [Where] When a person is subject to [custodial] interrogation
     5  by a public servant [at a detention facility], and the public servant is
     6  aware or has reason to suspect that the person interrogated committed  a
     7  crime  under  investigation  by such public servant or a law enforcement
     8  entity associated with  such  public  servant,  the  entire  [custodial]
     9  interrogation, including the giving of any required advice of the rights
    10  of  the individual being questioned, and the waiver of any rights by the
    11  individual, shall be recorded by an appropriate video  recording  device
    12  [if the interrogation involves a class A-1 felony, except one defined in
    13  article  two hundred twenty of the penal law; felony offenses defined in
    14  section 130.95 and 130.96 of the penal law; or a felony offense  defined
    15  in  article  one  hundred  twenty-five or one hundred thirty of such law
    16  that is defined as a class B violent felony offense in section 70.02  of
    17  the  penal  law.  For  purposes  of  this paragraph, the term "detention
    18  facility" shall mean a police station,  correctional  facility,  holding
    19  facility  for  prisoners,  prosecutor's  office  or other facility where
    20  persons are held in detention in connection with criminal  charges  that
    21  have  been  or  may  be  filed against them]. The interrogation shall be
    22  recorded  in a manner such that the persons in the recording  are  shown
    23  and the speech is  intelligible.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02247-01-3
        S. 5786                             2

     1    (b) [No confession, admission or other statement shall be subject to a
     2  motion  to  suppress  pursuant to subdivision three of section 710.20 of
     3  this chapter based solely upon the failure to video record such interro-
     4  gation in a detention facility as  defined  in  paragraph  (a)  of  this
     5  subdivision. However, where] When the people offer into evidence against
     6  a  defendant a confession, admission or other statement made by a person
     7  [in custody] with respect to  [his  or  her  participation  or  lack  of
     8  participation in] an alleged offense [specified in paragraph (a) of this
     9  subdivision,] that has not been video recorded, the court shall [consid-
    10  er  the  failure  to  record as a factor, but not as the sole factor, in
    11  accordance with paragraph (c) of this subdivision in determining whether
    12  such confession, admission or other statement shall be admissible.
    13    (c) Notwithstanding the requirement of paragraph (a) of this  subdivi-
    14  sion,  upon  a  showing  of  good cause by the prosecutor, the custodial
    15  interrogation need not be recorded. Good cause shall include, but not be
    16  limited to:
    17    (i) If electronic recording equipment malfunctions.
    18    (ii) If electronic recording equipment is not available because it was
    19  otherwise being used.
    20    (iii) If statements  are  made  in  response  to  questions  that  are
    21  routinely asked during arrest processing.
    22    (iv)  If the statement is spontaneously made by the suspect and not in
    23  response to police questioning.
    24    (v) If the statement is made during an interrogation that is conducted
    25  when the interviewer is unaware that a qualifying offense has occurred.
    26    (vi) If the statement is made at a location other than the  "interview
    27  room"  because  the  suspect  cannot  be brought to such room, e.g., the
    28  suspect is in a hospital or the suspect is out of state and  that  state
    29  is not governed by a law requiring the recordation of an interrogation.
    30    (vii)  If the statement is made after a suspect has refused to partic-
    31  ipate in the interrogation if it is recorded, and appropriate effort  to
    32  document such refusal is made.
    33    (viii) If such statement is not recorded as a result of an inadvertent
    34  error  or  oversight,  not  the result of any intentional conduct by law
    35  enforcement personnel.
    36    (ix) If it is law enforcement's reasonable belief that such  recording
    37  would  jeopardize  the  safety of any person or reveal the identity of a
    38  confidential informant.
    39    (x) If such statement is made at a location not equipped with a  video
    40  recording  device  and  the  reason  for  using  that location is not to
    41  subvert the intent of the law. For purposes of this  section,  the  term
    42  "location"  shall  include those locations specified in paragraph (b) of
    43  subdivision four of section 305.2 of the family court act.
    44    (d) In the event the court finds that the people have not  shown  good
    45  cause  for  the  non-recording  of  the  confession, admission, or other
    46  statement, but determines that a non-recorded confession,  admission  or
    47  other  statement  is  nevertheless admissible because it was voluntarily
    48  made then, upon request of the defendant, the court  must  instruct  the
    49  jury  that  the  people's  failure to record the defendant's confession,
    50  admission or other statement as required by this section may be  weighed
    51  as  a  factor,  but  not as the sole factor, in determining whether such
    52  confession, admission or other statement was voluntarily  made,  or  was
    53  made at all.
    54    (e)  Video recording as required by this section shall be conducted in
    55  accordance with standards established by rule of the division of  crimi-
        S. 5786                             3

     1  nal justice services] exclude such confession, admission or other state-
     2  ment from use as evidence at trial or at any pretrial hearing.
     3    §  2. Subdivisions 5-a and 8 of section 305.2 of the family court act,
     4  subdivision 5-a as added and subdivision 8 as amended by chapter 299  of
     5  the laws of 2020, are amended to read as follows:
     6    5-a.  [Where] When at any time a child is subject to interrogation [at
     7  a facility designated by the chief administrator  of  the  courts  as  a
     8  suitable  place for the questioning of juveniles pursuant to subdivision
     9  four of this section,] by a public servant and  the  public  servant  is
    10  aware  or has reason to suspect that the child interrogated committed an
    11  act that would be a crime if committed by an adult and  which  is  under
    12  investigation by such public servant or a law enforcement entity associ-
    13  ated  with  such public servant, the entire interrogation, including the
    14  giving of any required notice to the child as to his or her  rights  and
    15  the  child's  waiver of any rights, shall be video recorded [in a manner
    16  consistent with standards established by rule of the division of  crimi-
    17  nal  justice services pursuant to paragraph (e)] and governed in accord-
    18  ance with the provisions of subdivision three of section  60.45  of  the
    19  criminal  procedure law. The interrogation shall be recorded in a manner
    20  such that the persons in the recording are [identifiable] shown and  the
    21  speech  is  intelligible.  A  copy  of the recording shall be subject to
    22  discovery pursuant to section 331.2 of this  article.  This  subdivision
    23  shall not apply to a statement made to the probation service, in accord-
    24  ance  with  subdivision seven of section 308.1 of this part, except when
    25  such statement may be admissible under such subdivision seven of section
    26  308.1.
    27    8. In determining the suitability of questioning and  determining  the
    28  reasonable period of time for questioning such a child, the child's age,
    29  the  presence  or absence of his or her parents or other persons legally
    30  responsible for his or her care, notification  pursuant  to  subdivision
    31  three  of  this  section and, where the child has been interrogated at a
    32  facility designated by the chief administrator of the courts as a  suit-
    33  able  place  for the questioning of juveniles, whether the interrogation
    34  was in compliance with the video-recording and  disclosure  requirements
    35  of  subdivision  five-a of this section shall be included among relevant
    36  considerations.
    37    § 3. Subdivision 3 of section  344.2  of  the  family  court  act,  as
    38  amended  by  chapter  299  of  the  laws  of 2020, is amended to read as
    39  follows:
    40    3. [Where a respondent] When at any time a child is subject to  inter-
    41  rogation  by  a  public  servant [at a facility specified in subdivision
    42  four of section 305.2 of this article,] and the public servant is  aware
    43  or  has  reason  to suspect that the child interrogated committed an act
    44  that would constitute a crime if committed by  an  adult  and  which  is
    45  under  investigation  by such public servant or a law enforcement entity
    46  associated with such public servant,  the  entire  [custodial]  interro-
    47  gation,  including  the giving of any required [advice of the] notice to
    48  this child as to his or her rights [of the individual being questioned,]
    49  and [the] his or her waiver of any rights [by the individual], shall  be
    50  video  recorded  and  governed  in  [a  manner consistent with standards
    51  established by rule of the division of criminal justice services  pursu-
    52  ant  to  paragraph  (e)]  accordance  with the provisions of subdivision
    53  three of section 60.45 of the criminal procedure law. The  interrogation
    54  shall be recorded in a manner such that the persons in the recording are
    55  [identifiable]  shown  and  the  speech  is  intelligible. A copy of the
    56  recording shall be subject to discovery pursuant  to  section  331.2  of
        S. 5786                             4

     1  this  article.  This  subdivision shall not apply to a statement made to
     2  the probation service, in accordance with subdivision seven  of  section
     3  308.1  of  this  article,  except  when such statement may be admissible
     4  under such subdivision seven of section 308.1.
     5    §  4.  This  act shall take effect on the ninetieth day after it shall
     6  have become a law.