Require Video of Interrogations

Section 1. Section 60.45 of the criminal procedure law is amended by adding a new subdivision 3 to read as follows:

3. (a) When a person is subject to interrogation by a public servant at a detention facility, and the public servant is aware or has reason to suspect that the person interrogated committed a crime under investigation by such public servant or a law enforcement entity associated with such public servant, the entire interrogation, including the giving of any required advice of the rights of the individual being questioned, and the waiver of any rights by the individual, shall be recorded by an appropriate video recording device, if the interrogation involves a class A-1 felony or a violent felony offense as defined in section 70.02 of the penal law. The interrogation shall be recorded in a manner such that the persons in the recording are shown and the speech is intelligible. Such recording may also be conducted outside of a detention facility. For purposes of this paragraph, the term "detention facility" shall mean a police station, correctional facility, holding facility for prisoners, prosecutor's office or other facility where persons are held in detention in connection with criminal charges that have been or may be filed against them.

(b) No confession, admission or other statement shall be subject to a motion to suppress pursuant to subdivision three of section 710.20 of this chapter based solely upon the failure to video record such interro-

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD03939-02-7

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gation in a detention facility as defined in paragraph (a) of this subdivision. However, when the people offer into evidence against a defendant a confession, admission or other statement made by a person with respect to an alleged offense specified in paragraph (a) of this subdivision that has not been video recorded, the court shall consider the failure to record as a factor, in accordance with paragraph (c) of this subdivision, in determining whether such confession, admission or other statement shall be admissible.

(c) Notwithstanding the requirement of paragraph (a) of this subdivision, following a written motion of the prosecutor asserting good cause pursuant to this paragraph, filed within the time periods specified in section 710.30 of this chapter, and after an opportunity for a hearing, upon clear and convincing proof of such good cause, the court may find that such interrogation need not have been recorded. Such good cause may include the following:

(i) The video recording equipment malfunctioned while the recording of the interrogation was attempted.

(ii) Video recording equipment was not reasonably available because it was being used to record other interrogations in accordance with this section, and no such interrogation could reasonably have been delayed.

(iii) The statement was made in response to pedigree questions that are reasonably and routinely asked during arrest processing.

(iv) The statement was made spontaneously by the individual and not in response to questioning by a public servant.

(v) The statement was made during an interrogation that was conducted when the interviewer was unaware and had no reason to suspect that a qualifying offense may have occurred.

(vi) The statement was made after the individual voluntarily, and without express or implied encouragement by a public servant, refused to participate in the interrogation if recorded, and the circumstances of the refusal were recorded or, if such a record of the refusal was refused as well, reasonably contemporaneous documentation of the circumstances of the refusal was made.

(vii) It was the reasonable belief of the appropriate law enforcement official or officials that a video recording would jeopardize the safety of a specific person or persons or reveal the identity of one or more specific confidential informants, and reasonably contemporaneous documentation of the circumstances of such belief was made.

(viii) Such statement was made at a location not equipped with an appropriate recording device, it was not reasonably possible, under the circumstances, to bring equipment to such location or transfer the individual to a detention facility for interrogation, and the reason for using such location was not to subvert the intent of the law. For purposes of this section, the term "location" shall include those locations specified in paragraph (b) of subdivision four of section 305.2 of the family court act.

(d) In the event that an interrogation that qualified for recording under paragraph (a) of this subdivision was not recorded and the court determines that the non-recorded, alleged confession, admission or other statement is lawfully admissible, then, upon request of the defendant, the court must instruct the jury that the law generally requires recording under such circumstances and that the people's failure to record the defendant's alleged confession, admission or other statement may be considered in its deliberations, including, but not limited to, in determining whether such alleged confession, admission or other statement was voluntarily made, is accurate or truthful, or was made at all.

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When so instructing the jury, if the court has found that good cause for non-recording existed in accordance with paragraph (c) of this subdivision, the court, at the request of the people, shall advise the jury of the factor or factors set forth in paragraph (c) of this subdivision that the court found to be proved, without disclosing the court's finding with respect thereto, and advise the jury that it may make an independent determination concerning what weight, if any, to give to the failure to record.

(e) Video recording as required by this section shall be conducted in accordance with standards consistent with this subdivision established in regulations by the division of criminal justice services.

§ 2. Subdivision 8 of section 305.2 of the family court act, as amended by chapter 398 of the laws of 1983, is amended and a new subdivision 5-a is added to read as follows:

5-a. When at any time a child is subject to interrogation by a public servant at a facility designated by the chief administrator of the courts as a suitable place for the questioning of juveniles pursuant to subdivision four of this section, and the public servant is aware or has reason to suspect that the child interrogated committed an act that would be a crime if committed by an adult and which is under investigation by such public servant or a law enforcement entity associated with such public servant, the entire interrogation, including the giving of any required notice to the child as to his or her rights and his or her waiver of any rights, shall be video recorded and governed in accordance with the provisions of subdivision three of section 60.45 of the criminal procedure law. The interrogation shall be recorded in a manner such that the persons in the recording are shown and the speech is intelligible. A copy of the recording shall be subject to discovery pursuant to section 331.2 of this article. This subdivision shall not apply to a statement made to the probation service, in accordance with subdivision seven of section 308.1 of this part, except when such statement may be admissible under such subdivision seven of section 308.1.

8. In determining the suitability of questioning and determining the reasonable period of time for questioning such a child, the child's age, the presence or absence of his or her parents or other persons legally responsible for his or her care [and], notification pursuant to subdivision three and, where the child has been interrogated at a facility designated by the chief administrator of the courts as a suitable place for the questioning of juveniles, whether the interrogation was in compliance with the video-recording and disclosure requirements of subdivision five-a of this section shall be included among relevant considerations.

§ 3. Subdivision 3 of section 344.2 of the family court act is renumbered subdivision 4 and a new subdivision 3 is added to read as follows:

3. When at any time a child is subject to interrogation by a public servant at a facility designated by the chief administrator of the courts as a suitable place for the questioning of juveniles pursuant to subdivision four of section 305.2 of this article, and the public servant is aware or has reason to suspect that the child interrogated committed an act that would constitute a crime if committed by an adult and which is under investigation by such public servant or a law enforcement entity associated with such public servant, the entire interrogation, including the giving of any required notice to the child as to his or her rights and his or her waiver of any rights, shall be video recorded and governed in accordance with the provisions of subdivision three of section 60.45 of the criminal procedure law. The inter-

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rogation shall be recorded in a manner such that the persons in the recording are shown and the speech is intelligible. A copy of the recording shall be subject to discovery pursuant to section 331.2 of this article. This subdivision shall not apply to a statement made to the probation service, in accordance with subdivision seven of section 308.1 of this article, except when such statement may be admissible under such subdivision seven of section 308.1.

§ 4. Section 60.25 of the criminal procedure law, subparagraph (ii) of paragraph (a) of subdivision 1 as amended by chapter 479 of the laws of 1977, is amended to read as follows: § 60.25 Rules of evidence; identification by means of previous recogni-

tion, in absence of present identification.

1. In any criminal proceeding in which the defendant's commission of an offense is in issue, testimony as provided in subdivision two may be given by a witness when:

(a) Such witness testifies that:

(i) He or she observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case; and

(ii) On a subsequent occasion he or she observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person or, where the observation is made pursuant to a blind procedure as defined in paragraph (c) of this subdivision, a pictorial, photographic, electronic, filmed or video recorded reproduction of a person whom he or she recognized as the same person whom he or she had observed on the first or incriminating occasion; and

(iii) He or she is unable at the proceeding to state, on the basis of present recollection, whether or not the defendant is the person in question; and

(b) It is established that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction the witness observed and recognized on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his or her recognition on such occasion and by such pictorial, photographic, electronic, filmed or video recorded reproduction.

(c) (i) For purposes of this section, a "blind procedure" is one in which the witness identifies a person in an array of pictorial, photographic, electronic, filmed or video recorded reproductions under circumstances that comply with the applicable provisions of section 60.80 of the criminal procedure law and the protocols promulgated in accordance with subdivision twenty-one of section eight hundred thirtyseven of the executive law and where, at the time the identification is made, each public servant administering such procedure and with whom the witness communicates with respect to the conducting of such procedure does not know which person in the array is the suspect.

(ii) The failure of a public servant to follow such a procedure shall result in the preclusion of testimony regarding the identification procedure as evidence in chief, but shall not, in and of itself, constitute a legal basis to suppress evidence in response to a motion made pursuant to subdivision six of section 710.20 of this chapter. This paragraph, in and of itself, neither limits nor expands subdivision six of section 710.20 of this chapter.

2. Under circumstances prescribed in subdivision one of this section, such witness may testify at the criminal proceeding that the person whom

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he or she observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion is the same person whom he or she observed on the first or incriminating occasion. Such testimony, together with the evidence that the defendant is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion, constitutes evidence in chief.

§ 5. Section 60.30 of the criminal procedure law, as amended by chapter 479 of the laws of 1977, is amended to read as follows: § 60.30 Rules of evidence; identification by means of previous recogni-

tion, in addition to present identification.