2023 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, 2025