STATE OF NEW YORK ________________________________________________________________________ 1488 2017-2018 Regular Sessions IN SENATE January 9, 2017 ___________ 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 § 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. LBD01218-01-7

S. 1488 2 1 § 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 § 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 § 5. Paragraph (g) of subdivision 3 and paragraph (a) of subdivision 8 24 of section 190.30 of the criminal procedure law, paragraph (g) of subdi- 25 vision 3 as added by chapter 690 of the laws of 2005 and paragraph (a) 26 of subdivision 8 as added by chapter 279 of the laws of 2008, are 27 amended, subdivision 3 is amended by adding a new paragraph (h) and a 28 new subdivision 4-a is added to read as follows: 29 (g) that person's ownership of, or possessory right in, a credit card 30 account number or debit card account number, and the defendant's lack of 31 superior or equal right to use or possession thereof[.]; 32 (h) that a person's ownership of, or possessory right in, personal 33 identifying information, as defined in subdivision one of section 190.77 34 of the penal law, or a personal identification number, as defined in 35 paragraph b of subdivision two of section 190.77 of the penal law as any 36 number or code which may be used alone or in conjunction with any other 37 information to assume the identity of another person or access financial 38 resources or credit of another person, and the defendant's lack of supe- 39 rior or equal right to use or possession thereof. 40 4-a. Whenever the district attorney has reason to believe that a 41 witness, other than a witness who waives immunity pursuant to section 42 190.40 of this article, including a defendant testifying on his or her 43 own behalf pursuant to subdivision five of section 190.50 of this arti- 44 cle, is located either out-of-state or more than one hundred miles from 45 the grand jury proceeding, the person may provide live testimony by 46 closed circuit video or videoconferencing in the same manner as if the 47 witness had testified in person. The audiovisual technology used pursu- 48 ant to this section shall seek to ensure that the communication be 49 reasonably secure from interception or eavesdropping by anyone other 50 than the persons communicating, and must ensure that the witness may be 51 clearly heard, seen and examined. 52 (a) The testimony of the witness shall be: 53 (i) taken by a certified videographer who is in the physical presence 54 of the witness. The certified videographer shall sign a written declara- 55 tion which states that the witness does not possess any notes or other 56 materials to assist in the witness's testimony;

S. 1488 3 1 (ii) recorded and preserved through the use of audiovisual recording 2 technology; and 3 (iii) transcribed by a certified court reporter. 4 (b) Before giving testimony, the witness shall be sworn and sign a 5 written declaration, which acknowledges that the witness is alone in the 6 room where the testimony is being taken, that, to his or her knowledge, 7 no one other than the certified videographer is hearing his or her 8 testimony, that the witness understands that he or she is subject to the 9 jurisdiction of the courts of this state and may be subject to criminal 10 prosecution for the commission of any crime in connection with his or 11 her testimony, including, without limitation, perjury and contempt, and 12 that the witness consents to such jurisdiction. 13 (c) The original recorded testimony of the witness must be delivered 14 to the certified court reporter. 15 (a) [~~A business record may be received in such grand jury proceedings~~ 16 ~~as evidence of the following facts and similar facts stated therein:~~ 17 ~~(i) a person's use of, subscription to and charges and payments for~~ 18 ~~communication equipment and services including but not limited to equip-~~ 19 ~~ment or services provided by telephone companies and internet service~~ 20 ~~providers, but not including recorded conversations or images communi-~~ 21 ~~cated thereby; and~~ 22 ~~(ii) financial transactions, and a person's ownership or possessory~~ 23 ~~interest in any account, at a bank, insurance company, brokerage,~~ 24 ~~exchange or banking organization as defined in section two of the bank-~~ 25 ~~ing law.~~] All business records as defined in subdivision (a) of rule 26 4518 of the civil practice law and rules and sections three hundred two 27 and three hundred six of the state technology law may be received in 28 such grand jury proceedings as evidence of the facts stated therein. 29 § 6. Section 210.35 of the criminal procedure law is amended by adding 30 a new subdivision 4-a to read as follows: 31 4-a. Evidence protected by use immunity was used to obtain the indict- 32 ment. A motion seeking relief on this ground shall not be entertained 33 before a motion made pursuant to subdivision eight of section 710.20 of 34 this chapter, seeking suppression of potential evidence as to the use of 35 which the defendant possesses immunity, has been resolved. Upon the 36 granting of such a motion, the court must dismiss the indictment; other- 37 wise, the court must deny the motion to dismiss; or 38 § 7. The opening paragraph and subdivisions 6 and 7 of section 710.20 39 of the criminal procedure law, the opening paragraph and subdivision 6 40 as amended by chapter 8 of the laws of 1976 and subdivision 6 as renum- 41 bered by chapter 481 of the laws of 1983, subdivision 7 as added by 42 chapter 744 of the laws of 1988, are amended and a new subdivision 8 is 43 added to read as follows: 44 Upon motion of a defendant who (a) is aggrieved by unlawful or improp- 45 er acquisition of evidence and has reasonable cause to believe that such 46 may be offered against him or her in a criminal action, or (b) claims 47 that improper identification testimony may be offered against him or her 48 in a criminal action, or (c) claims that evidence as to the use of which 49 he or she possesses immunity, as defined in subdivision one of section 50 50.10 of this chapter, may be offered against him or her in a criminal 51 action, a court may, under circumstances prescribed in this article, 52 order that such evidence be suppressed or excluded upon the ground that 53 it: 54 6. Consists of potential testimony regarding an observation of the 55 defendant either at the time or place of the commission of the offense 56 or upon some other occasion relevant to the case, which potential testi-

S. 1488 4 1 mony would not be admissible upon the prospective trial of such charge 2 owing to an improperly made previous identification of the defendant by 3 the prospective witness[.]; or 4 7. Consists of information obtained by means of a pen register or trap 5 and trace device installed or used in violation of the provisions of 6 article seven hundred five of this chapter[.]; or 7 8. Consists of potential evidence as to the use of which the defendant 8 possesses immunity. Where the defendant establishes that immunity has 9 been conferred on him or her, the people must then establish, by a 10 preponderance of the evidence, that such evidence was not derived, 11 directly or indirectly, from the evidence as to which immunity was 12 conferred. 13 § 8. This act shall take effect on the first of November next succeed- 14 ing the date on which it shall have become a law.

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