NY Crim Pro L § 65.20 (2021)
2021 New York Laws CPL - Criminal Procedure Part 1 - General Provisions Title D - Rules of Evidence, Standards of Proof and Related Matters Article 65 - Use of Closed-Circuit Television for Certain Child Witnesses 65.20 - Closed-Circuit Television; Procedure for Application and Grounds for Determination.

* § 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 child witness should be declared vulnerable when  the  court,  in accordance  with the provisions of this section, determines by clear and convincing evidence that the child witness would suffer  serious  mental or  emotional  harm  that  would substantially impair the child witness' ability to communicate with the finder of fact without the use of  live, two-way closed-circuit television.   3.  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.   4.  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.   5. 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.   6.  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.   7. 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, 255.26  or  255.27  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.   8. (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.   9.  (a) Prior to the commencement of the hearing conducted pursuant to subdivision six of this section, the district attorney shall, subject to a protective order, comply with the provisions  of  subdivision  one  of section  245.20  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 four of section 245.20 of this chapter as they  concern  all the witnesses the defendant intends to call at such hearing.   10.  The  court may consider, in determining whether there are factors which would  cause  the  child  witness  to  suffer  serious  mental  or emotional  harm,  a  finding  that  any  one  or  more  of the following circumstances 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, 255.26 or 255.27 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.   11.  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.   12. 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.   13. 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, 2023