Barry Kamins
Barry Kamins (NYLJ/Rick Kopstein)

This article contains the annual review of new legislation amending the Penal Law, Criminal Procedure Law and other related statutes. The discussion that follows will primarily highlight key provisions of the new laws and as such the reader should review the legislation for specific details. In some instances, where indicated, legislation enacted by both houses is awaiting the governor’s signature and, of course, the reader must check to determine whether a bill is ultimately signed or vetoed by the governor.

Part one of the review, which follows, discusses four substantive changes that were enacted as part of the budget bill: evidence of identification by photographs; videotaping of confessions; raising the age of criminal responsibility; and sealing of prior convictions. As discussed in the two prior columns (NYLJ June 2, 2017 and Aug. 7, 2017), a new law permits evidence, at trial, that a witness identified a defendant from a photograph provided, however, that a “blind” or “blinded” identification procedure was utilized by the police (L. 2017, Ch. 59, eff. July 1, 2017). The legislation overruled a 90-year-old evidentiary rule in New York that had precluded such evidence as part of the prosecutor’s evidence-in-chief.

Both the “blind” and “blinded” procedures are described in detail in the prior columns but essentially the former is one in which the administrator of the photo array does not know the identity of the suspect. The latter is one in which the administrator does not know the location of the suspect’s photo in the array. The failure to use such procedures will only affect the admissibility of testimony regarding a prior photographic identification; it cannot constitute a legal basis to suppress other identification pursuant to CPL §710.

The legislation also required the Division of Criminal Justice Services (DCJS) to promulgate new protocols for conducting “blind” and “blinded” photo arrays. The prior column discussed the protocols which were issued in June and disseminated to all police departments in New York.

A second substantive enactment requires the video recording of custodial interrogations by a public servant at a detention facility when the interrogation involves certain enumerated felonies. (L. 2017, Ch. 59, eff. April 1, 2018).

A “detention facility” is defined as any location where an individual is being held in connection with criminal charges that have been or may be filed. The statute expressly includes a police station, correctional facility, holding facility for prisoners and a prosecutor’s office. The recording must include the entire custodial interrogation, including the administration of Miranda warnings and the waiver of such rights. (CPL §60.45(3)).

The video recordings are required only when the interrogation involves one of 19 enumerated felonies. They fall within the following categories: any A-1 felony other than a controlled substance felony under Article 220 of the Penal Law; any Class B violent felony offense under Article 125 of the Penal Law (homicide); Article 130 of the Penal Law (sex offense); and the A-II felonies of predatory sexual assault (PL §130.95 and §130.96).

The statute excuses the failure to record a statement for “good cause” by the prosecutor and lists 10 examples of what would constitute good cause; however, the list is not exhaustive. The excuses fall into several general categories: where the failure to record is beyond the control of the People; where the recording would jeopardize the safety of any person or reveal the identity of a confidential informant; or where a suspect refuses to be interrogated if the interrogation is recorded. (CPL §60.45(3)).

The prosecutor has the burden of establishing good cause for the failure to record the interrogation. Should a court find, however, that there was not good cause for failing to record, the court may not suppress a confession or statement based solely on that ground. A court shall consider the failure to record as a factor, but not as the sole factor, in determining whether such confession shall be admissible at trial. At the defendant’s request, the court must instruct the jury that the People’s failure to record may be weighted as a factor, but not as the sole factor, in determining whether a statement was voluntarily made, or was made at all. (CPL §60.45(3)(d)).

A third new law raises the age of criminal responsibility in New York (L. 2017, Ch. 59, eff. Oct. 1, 2018 and Oct. 1, 2019). As of Oct. 1, 2018, all 16-year-olds and, on Oct. 1, 2019, all 17-year-olds with a few exceptions, will no longer be criminally responsible for misdemeanors—those charges will now be adjudicated in Family court where the individual may be adjudicated a “juvenile delinquent.” The only exception is where the misdemeanor is either accompanied by a felony charge, is the result of a guilty plea in satisfaction of felony charges, or falls under the Vehicle and Traffic Law. In those instances, the misdemeanor charges will remain in the local criminal court. In addition, traffic infractions and stand-alone violations will continue to be adjudicated in local criminal courts.

The adjudication of felonies for the age group is more complicated. All felony cases will originate in a newly established Youth Part in the Superior Court in each county, presided over by Family Court judges who will receive specialized training in juvenile justice and adolescent development. (CPL §722.10).

A 16-year-old or 17-year-old who is charged with a felony under the new law is designated an “adolescent offender” (AO) and, upon arrest, the AO will be arraigned in the Youth Part. (CPL §1.20(44)). Thus, individuals in this age group will bypass the local criminal court completely unless they are arrested at a time when the Youth Part is not in session, e.g. at night or on the weekend. At those times, the AO must be arraigned before special “accessible magistrates” designated by the presiding justice of each Appellate Division. These magistrates must be specially trained in juvenile justice and adolescent development and, presumably, current local criminal court judges would fill the role of “accessible magistrates.” (CPL §722.20 and §722.21).

Once an adolescent offender is arraigned in the Youth Part, there is a provision for the case to be removed to Family Court where the individual could be adjudicated a “juvenile delinquent.” Whether or not a case is removed depends on the severity of the offense.

When an adolescent offender is charged with any crime other than (1) a class A (non-drug) felony; (2) a violent felony; or (3) a felony for which a juvenile offender would be criminally responsible under CPL §1.20(42), the statute comes close to a presumption in favor of a removal to Family Court.

The statute provides that the case “shall” be removed to Family Court unless the prosecutor files a motion within 30 days of the arraignment to prevent the removal. Ultimately, the court shall grant the motion for removal unless it determines that “extraordinary circumstances” exist that prevent the transfer to the Family Court. The statute does not define “extraordinary circumstances.” (CPL §722.23(1)).

When an adolescent offender is charged with a class A (non-drug) felony, or a violent felony, the court must adjourn the case no later than six calendar days after the arraignment. At the second appearance, the court must review the accusatory instrument to determine whether the case should be removed to Family Court. In order for the prosecutor to prevent the removal he or she must prove by a preponderance of the evidence that one of the following is established in the accusatory instrument: (1) the defendant caused “significant physical injury” (not defined) to a non-participant in the offense; (2) the defendant displayed a firearm, shotgun, rifle, or deadly weapon; or (3) the defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual contact or sexual contact. (CPL §722.23(2)).

If the prosecution satisfies its burden, the case remains in the Youth Part and the defendant is prosecuted as an adult. Should the defendant be convicted, the court “shall consider the age of the defendant in exercising its discretion at sentencing.” (PL §60.10(a)).

Under the new statute, juvenile offenders are arraigned in the Youth Part after their arrest and thus bypass the local criminal court unless the Youth Part is not in session. (CPL 722.20). The procedures for removing juvenile offenders to Family Court remains the same as under the prior statute although the numbering of the sections has changed. (CPL 722.20).

It should be noted that juvenile offenders and adolescent offenders who are not removed to Family Court are prosecuted as adults in the Youth Part. Nonetheless, they are still eligible for youthful offender treatment.

Finally, adolescent offenders who are held on bail prior to a conviction will no longer be held on Riker’s Island as of Oct. 1, 2018. Each county must provide a “detention center for older youth” (Con. Law §40(2)). An adolescent offender sentenced to an indeterminant or determinate sentence will be committed to the Department of Corrections and Community Supervision for placement in an adolescent offender facility.

The fourth substantive change in the budget bill is an expansion of New York’s sealing statute that aligns this state with a majority of other states in addressing the collateral consequences of past convictions. A new section, Criminal Procedure Law §160.59, applies to all offenders (adults, adolescent offenders and juvenile offenders) who have past convictions (L. 2017, Ch. 59, eff. Oct. 7, 2017; L. 2017, Ch. 60). It is the first time New York will seal prior convictions—the current law only sealed violations and dismissed cases.

Under the new statute, an application can be made to seal up to two convictions, only one of which can be a felony. To qualify for sealing, at least 10 years must have elapsed from the date of sentence or the release from incarceration, whichever comes later. (CPL §160.59(5)). The application must be made to the sentencing judge and if the applicant has two convictions, the application must be made to the judge who presided over the higher classification of crime. If the two crimes are misdemeanors, the application must be made to the judge who sentenced the defendant on the later date.

If the prosecutor objects to the application, he or she has 45 days to file an objection and a court can conduct a hearing to make a determination. Pursuant to the statute, the court must consider any relevant factors including the impact of sealing upon the defendant’s reentry or rehabilitation as well as the impact on public safety and the public’s confidence. (CPL §160.59(7)).

Certain convictions are not eligible for sealing, including violent felonies, sex offenses under Article 130 of the Penal Law, homicides, A felonies, and an offense for which registration as a sex offender is required. (CPL §160.59(1)).

The new sealing statute is different from the current sealing statutes (CPL §160.50 and §160.55). First, unlike the current statutes, the new law permits the Department of Criminal Justice Services to retain the fingerprint and photographs of the defendant. In addition, the new law permits a number of “qualified agencies,” including prosecutor offices, to have access to these records.

Finally, a defendant cannot be required to waive the right to apply for sealing as part of any plea agreement. (CPL §160.59(11)). In addition, an inquiry about a prior sealed conviction will constitute an unlawful discriminatory practice. (Executive Law 296(16)).