Relates to the examination of witnesses

Summary of provisions

Section 1 amends § 660.20, subdivision 2, to include witnesses age 75 or older to be eligible to be examined conditionally as a witness who will not be amenable or responsive to legal process or available as a witness at a time when their testimony will be sought pursuant to Article 660 of the Criminal Procedure Law.

Section 2 states that this act shall take effect immediately.

Justification

There are nearly six million cases of elder abuse in the U.S. every year. Only five states account for more than one third of all elder abuse cases in the nation, and New York State is one of them. As the senior population is poised to grow significantly over the next decade, it is almost certain that there will be a steady rise in the number of elder abuse cases in New York State.

Elder abuse crimes can take many forms. The case may involve domestic violence in which family members or caregivers physically abuse elders within the home. The largest growing area of elder abuse involves the financial exploitation of seniors, including con games and scams, in which older victims are defrauded by relatives, caregivers, fiduciaries, or strangers. Elder abuse victims are often partly or wholly reliant on the abuser. Many older victims suffer from age-related, degenerative mental conditions involving cognitive impairment, such as Alzheimer's disease or other forms of dementia. The exploitation of a victim's advanced age is likely to have been the very reason why he or she was targeted in the first place. In some cases, the older victim may be the only witness in the case. Sadly, many elderly victims, who appear to be healthy at the outset of the investigation or the time of arrest, pass away before the case goes to trial. The elder's death, although attributable to advanced age, may be sudden and come about with little warning.

Prosecutors in New York State have seen an increase in the number of elder abuse cases, but they are presently hamstrung by the void in Article 660, as witnesses of advanced age are not eligible to be examined conditionally unless they suffer from demonstrable physical illness or incapacity at the time the application is made. In a case prosecuted a few years ago, an elderly man in his 90s, said to be in good health for his age, was the victim of a theft by his long-time home aide. He passed away after the aide's arrest but before the case was presented to the Grand Jury. The case was prosecuted, but would have been improvable if the aide had not confessed (People v. Koroma). In another recent case, a defendant stole $46,000 from a woman in her 80s, who was not physically ill. After the aide was

indicted, the victim passed away unexpectedly. The case was resolved in a misdemeanor plea (People v. Robeck). These were cases in which the People did not move to preserve the victim's testimony under CPL 660.20, as the statute does not authorize an application for a conditional examination based solely on the victim's advanced age, if he or she is in otherwise good health.

In order to serve the interest of justice, prosecutors and defense attorneys should be able to seek to preserve the testimony of witnesses who are of advanced age. With respect to the issue of what should constitute advanced age under the statute, data from the Centers for Disease Control shows that Americans live, on average, 77.8 years. In light of this finding, the option of a conditional examination for a witness who is age 75 or older is warranted, given the parameters of the speedy trial statute and the periods of time that are deemed to be excludible, under the law.

Offenders should not be able to "game the system" by delaying the trial in the hope that an older witness will succumb to conditions associated with advanced age or pass away before trial. A conditional examination would preserve the testimony of witnesses of advanced age in the unfortunate event that advanced age or an associated degenerative condition renders them unavailable or incapable of testifying at trial because of their death, even if they appeared to be healthy at the time of the defendant's arraignment.

Legislative history

New bill.

Fiscal implications

None

Effective date

This act shall take effect immediately