NY Crim Pro L § 60.45 (2021)
2021 New York Laws CPL - Criminal Procedure Part 1 - General Provisions Title D - Rules of Evidence, Standards of Proof and Related Matters Article 60 - Rules of Evidence and Related Matters 60.45 - Rules of Evidence; Admissibility of Statements of Defendants.

§ 60.45 Rules of evidence; admissibility of statements of defendants.   1.  Evidence  of  a  written  or  oral confession, admission, or other statement made by a defendant with respect to his participation or  lack of participation in the offense charged, may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made.   2.  A confession, admission or other statement is "involuntarily made" by a defendant when it is obtained from him:  (a) By any person by the use or threatened use of physical force  upon the  defendant  or  another  person,  or  by means of any other improper conduct or undue pressure which impaired  the  defendant's  physical  or mental  condition  to  the  extent  of undermining his ability to make a choice whether or not to make a statement; or  (b) By a public servant engaged in law enforcement activity  or  by  a person then acting under his direction or in cooperation with him:  (i)  by  means  of  any promise or statement of fact, which promise or statement creates a substantial risk that the  defendant  might  falsely incriminate himself; or  (ii)  in violation of such rights as the defendant may derive from the constitution of this state or of the United States.   3. (a) Where a person is  subject  to  custodial  interrogation  by  a public   servant   at   a   detention  facility,  the  entire  custodial 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, except one defined  in article  two hundred twenty of the penal law; felony offenses defined in section 130.95 and 130.96 of the penal law; or a felony offense  defined in  article  one  hundred  twenty-five or one hundred thirty of such law that is defined as a class B violent felony offense in section 70.02  of the  penal  law.  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 interrogation in a detention facility as defined  in  paragraph  (a)  of this  subdivision.  However,  where  the  people  offer  into evidence a confession, admission or other statement made by  a  person  in  custody with  respect to his or her participation or lack of participation in an 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,  but not as the sole 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, upon a  showing  of  good  cause  by  the  prosecutor,  the custodial  interrogation need not be recorded. Good cause shall include, but not be limited to:  (i) If electronic recording equipment malfunctions.  (ii) If electronic recording equipment is not available because it was otherwise being used.  (iii) If statements  are  made  in  response  to  questions  that  are routinely asked during arrest processing.  (iv)  If the statement is spontaneously made by the suspect and not in response to police questioning.  (v) If the statement is made during an interrogation that is conducted when the interviewer is unaware that a qualifying offense has occurred.  (vi)  If the statement is made at a location other than the "interview room" because the suspect cannot be brought  to  such  room,  e.g.,  the suspect  is  in a hospital or the suspect is out of state and that state is not governed by a law requiring the recordation of an interrogation.  (vii) If the  statement  is  made  after  a  suspect  has  refused  to participate  in  the  interrogation  if  it is recorded, and appropriate effort to document such refusal is made.  (viii) If such statement is not recorded as a result of an inadvertent error or oversight, not the result of any  intentional  conduct  by  law enforcement personnel.  (ix)  If it is law enforcement's reasonable belief that such recording would jeopardize the safety of any person or reveal the  identity  of  a confidential informant.  (x)  If such statement is made at a location not equipped with a video recording device and the reason  for  using  that  location  is  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 the court finds that the people have not shown good cause for the non-recording  of  the  confession,  admission,  or  other statement,  but  determines that a non-recorded confession, admission or other statement is nevertheless admissible because  it  was  voluntarily made  then,  upon  request of the defendant, the court must instruct the jury that the people's failure to  record  the  defendant's  confession, admission  or other statement as required by this section may be weighed as a factor, but not as the sole factor,  in  determining  whether  such confession,  admission  or  other statement was voluntarily made, or was made at all.  (e) Video recording as required by this section shall be conducted  in accordance  with  standards  established  by  rule  of  the  division of criminal justice services.