New York Criminal Procedure Law Section 65.20 - Closed-circuit Television; Procedure For Application And Grounds For Determination.

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  * § 65.20  Closed-circuit  television;  procedure  for  application and
                grounds for determination.
    1. Prior to the commencement of a criminal proceeding;  other  than  a
  grand  jury proceeding, either party may apply to the court for an order
  declaring that a child witness is vulnerable.
    2. A motion pursuant to subdivision one of this section must  be  made
  in writing at least eight days before the commencement of trial or other
  criminal  proceeding  upon reasonable notice to the other party and with
  an opportunity to be heard.
    3. The motion papers must state the basis  for  the  motion  and  must
  contain  sworn  allegations  of  fact  which,  if  true, would support a
  determination by the court that the child witness  is  vulnerable.  Such
  allegations  may be based upon the personal knowledge of the deponent or
  upon information and belief, provided that, in  the  latter  event,  the
  sources of such information and the grounds for such belief are stated.
    4. The answering papers may admit or deny any of the alleged facts and
  may,  in  addition,  contain  sworn  allegations of fact relevant to the
  motion, including the rights of the defendant, the need to  protect  the
  child  witness  and  the  integrity of the truth-finding function of the
  trier of fact.
    5. Unless all material facts alleged in support  of  the  motion  made
  pursuant  to  subdivision  one  of  this section are conceded, the court
  shall, in addition to examining the papers and  hearing  oral  argument,
  conduct  an  appropriate  hearing  for the purpose of making findings of
  fact essential to the determination of the motion. Except as provided in
  subdivision six of this section, it may subpoena  or  call  and  examine
  witnesses,  who  must  either testify under oath or be permitted to give
  unsworn testimony pursuant to subdivision two of section 60.20 and  must
  authorize the attorneys for the parties to do the same.
    6.  Notwithstanding  any other provision of law, the child witness who
  is alleged to be vulnerable may not be  compelled  to  testify  at  such
  hearing  or  to  submit to any psychological or psychiatric examination.
  The failure of the child witness to testify at such hearing shall not be
  a ground for denying a motion made pursuant to subdivision one  of  this
  section.  Prior  statements  made  by  the child witness relating to any
  allegations of conduct constituting an offense defined  in  article  one
  hundred  thirty  of the penal law or incest as defined in section 255.25
  of such law or to any allegation of words  or  conduct  constituting  an
  attempt  to  prevent, impede or deter the child witness from cooperating
  in the investigation or prosecution of the offense shall  be  admissible
  at  such  hearing,  provided,  however,  that a declaration that a child
  witness  is  vulnerable  may  not  be  based  solely  upon  such   prior
  statements.
    7.  (a) Notwithstanding any of the provisions of article forty-five of
  the civil practice law and rules, any physician, psychologist, nurse  or
  social  worker  who has treated a child witness may testify at a hearing
  conducted pursuant to subdivision five of this  section  concerning  the
  treatment  of  such child witness as such treatment relates to the issue
  presented  at  the  hearing,  provided  that  any  otherwise  applicable
  statutory privileges concerning communications between the child witness
  and  such  physician, psychologist, nurse or social worker in connection
  with such treatment shall not be deemed waived by such testimony  alone,
  except to the limited extent of permitting the court alone to examine in
  camera   reports,  records  or  documents,  if  any,  prepared  by  such
  physician,  psychologist,  nurse  or  social  worker.   If   upon   such
  examination   the   court  determines  that  such  reports,  records  or
  documents, or any one or portion thereof, contain  information  material
  and  relevant  to the issue of whether the child witness is a vulnerable
  child witness, the court shall disclose such  information  to  both  the
  attorney for the defendant and the district attorney.
    (b)  At  any time after a motion has been made pursuant to subdivision
  one of this section, upon the demand of the other party the moving party
  must furnish the demanding party with a copy of  any  and  all  of  such
  records,  reports  or  other  documents  in the possession of such other
  party and must, in addition, supply the court with a copy  of  all  such
  reports, records or other documents which are the subject of the demand.
  At any time after a demand has been made pursuant to this paragraph, the
  moving  party  may demand that property of the same kind or character in
  possession of the party that originally made such demand be furnished to
  the moving party and, if so furnished, be supplied, in addition, to  the
  court.
    8.  (a) Prior to the commencement of the hearing conducted pursuant to
  subdivision five of this section, the district attorney  shall,  subject
  to  a protective order, comply with the provisions of subdivision one of
  section 240.45 of this chapter as they  concern  any  witness  whom  the
  district attorney intends to call at the hearing and the child witness.
    (b)  Before  a  defendant  calls  a witness at such hearing, he or she
  must, subject to a protective  order,  comply  with  the  provisions  of
  subdivision  two  of  section 240.45 of this chapter as they concern all
  the witnesses the defendant intends to call at such hearing.
    9. The court may consider,  in  determining  whether  there  are  such
  extraordinary  circumstances  as would cause the child witness to suffer
  severe mental or emotional harm, a finding that any one or more  of  the
  following   factors  have  been  established  by  clear  and  convincing
  evidence:
    (a) The manner of the commission of the offense of which the defendant
  is accused was particularly heinous or was characterized by  aggravating
  circumstances.
    (b)  The child witness is particularly young or otherwise particularly
  subject to psychological  harm  on  account  of  a  physical  or  mental
  condition which existed before the alleged commission of the offense.
    (c)  At  the  time  of  the  alleged offense, the defendant occupied a
  position of authority with respect to the child witness.
    (d) The offense or offenses charged were part of an ongoing course  of
  conduct  committed  by  the  defendant against the child witness over an
  extended period of time.
    (e) A deadly weapon or dangerous instrument was allegedly used  during
  the commission of the crime.
    (f) The defendant has inflicted serious physical injury upon the child
  witness.
    (g)  A  threat,  express or implied, of physical violence to the child
  witness or a third person if  the  child  witness  were  to  report  the
  incident to any person or communicate information to or cooperate with a
  court,   grand   jury,  prosecutor,  police  officer  or  peace  officer
  concerning the incident has been made by or on behalf of the defendant.
    (h) A threat, express or implied, of the incarceration of a parent  or
  guardian of the child witness, the removal of the child witness from the
  family  or  the  dissolution  of  the family of the child witness if the
  child witness were to report the incident to any person  or  communicate
  information to or cooperate with a court, grand jury, prosecutor, police
  officer  or peace officer concerning the incident has been made by or on
  behalf of the defendant.
    (i) A witness other than the child witness has received  a  threat  of
  physical violence directed at such witness or to a third person by or on
  behalf of the defendant.
    (j)  The  defendant,  at the time of the inquiry, (i) is living in the
  same household with the child witness, (ii)  has  ready  access  to  the
  child  witness  or  (iii) is providing substantial financial support for
  the child witness.
    (k)  The  child  witness  has previously been the victim of an offense
  defined in article one hundred thirty of the  penal  law  or  incest  as
  defined in section 255.25 of such law.
    (l)  According  to  expert  testimony,  the  child  witness  would  be
  particularly suceptible to psychological harm if required to testify  in
  open court or in the physical presence of the defendant.
    10.  Irrespective of whether a motion was made pursuant to subdivision
  one of this section, the court, at the request of either party or on its
  own motion, may decide that a child witness may be vulnerable  based  on
  its own observations that a child witness who has been called to testify
  at  a  criminal  proceeding is suffering severe mental or emotional harm
  and therefore is physically or mentally unable to testify or to continue
  to testify in open court or in the physical presence  of  the  defendant
  and that the use of live, two-way closed-circuit television is necessary
  to enable the child witness to testify. If the court so decides, it must
  conduct  the same hearing that subdivision five of this section requires
  when a motion is made pursuant to subdivision one of this  section,  and
  it  must  make findings of fact pursuant to subdivisions nine and eleven
  of  this  section,  before  determining  that  the  child   witness   is
  vulnerable.
    11. In deciding whether a child witness is vulnerable, the court shall
  make  findings of fact which reflect the causal relationship between the
  existence of any one or more of the factors  set  forth  in  subdivision
  nine of this section or other relevant factors which the court finds are
  established  and the determination that the child witness is vulnerable.
  If the court is satisfied that the child witness is vulnerable and that,
  under  the  facts  and  circumstances  of  the  particular   case,   the
  defendant's   constitutional   rights   to   an  impartial  jury  or  of
  confrontation will not be impaired, it may enter an order  granting  the
  application for the use of live, two-way closed-circuit television.
    12. When the court has determined that a child witness is a vulnerable
  child  witness,  it  shall make a specific finding as to whether placing
  the defendant and  the  child  witness  in  the  same  room  during  the
  testimony  of  the  child witness will contribute to the likelihood that
  the child witness will suffer severe mental or emotional  harm.  If  the
  court finds that placing the defendant and the child witness in the same
  room  during  the  testimony of the child witness will contribute to the
  likelihood that the child witness will suffer severe mental or emotional
  harm, the order entered pursuant to subdivision eleven of  this  section
  shall  direct  that  the  defendant  remain  in the courtroom during the
  testimony of the vulnerable child witness.
    * NB Repealed September 1, 2007

Last modified: July 30, 2006