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Article 60 - NY Criminal Procedure Law

RULES OF EVIDENCE AND RELATED MATTERS

Section Description
60.10 Rules of evidence; in general.
60.15 Rules of evidence; what witnesses may be called.
60.20 Rules of evidence; testimonial capacity; evidence given by children.
60.22 Rules of evidence; corroboration of accomplice testimony.
60.25 Rules of evidence; identification by means of previous recognition, in absence of present identification.
60.30 Rules of evidence; identification by means of previous recognition, in addition to present identification.
60.35 Rules of evidence; impeachment of own witness by proof of prior contradictory statement.
60.40 Rules of evidence; proof of previous conviction; when allowed.
60.42 Rules of evidence; admissibility of evidence of victim`s sexual conduct in sex offense cases.
60.43 Rules of evidence; admissibility of evidence of victim`s sexual conduct in non-sex offense cases.
60.44 Use of anatomically correct dolls.
60.45 Rules of evidence; admissibility of statements of defendants.
60.46 Rules of evidence; family offense proceedings in family court.
60.47 Possession of condoms; receipt into evidence.
60.48 Rules of evidence; admissibility of evidence of victim`s manner of dress in sex offense cases.
60.50 Rules of evidence; statements of defendants; corroboration.
60.55 Rules of evidence; psychiatric testimony in certain cases.
60.60 Rules of evidence; certificates concerning judgments of conviction and fingerprints.
60.70 Rules of evidence; dangerous drugs destroyed pursuant to court order.
60.75 Rules of evidence; chemical test evidence.
60.76 Rules of evidence; rape crisis counselor evidence in certain cases.
S 60.10 Rules of evidence; in general.
  Unless otherwise provided by statute or by judicially established
rules of evidence applicable to criminal cases, the rules of evidence
applicable to civil cases are, where appropriate, also applicable to
criminal proceedings.

S 60.15 Rules of evidence; what witnesses may be called.
  1.  Unless otherwise expressly provided, in any criminal proceeding
involving a defendant in which evidence is or may be received, both the
people and the defendant may as a matter of right call and examine
witnesses, and each party may cross-examine every witness called by the
other party.
  2.  A defendant may testify in his own behalf, but his failure to do
so is not a factor from which any inference unfavorable to him may be
drawn.

S 60.20 Rules of evidence; testimonial capacity; evidence given by
             children.
  1. Any person may be a witness in a  criminal  proceeding  unless  the
  court  finds  that, by reason of infancy or mental disease or defect, he
  does not possess sufficient intelligence  or  capacity  to  justify  the
  reception of his evidence.
    2.  Every witness more than nine years old may testify only under oath
  unless the court is satisfied that such witness cannot, as a  result  of
  mental  disease  or  defect, understand the nature of an oath. A witness
  less than nine years old may not testify under oath unless the court  is
  satisfied  that  he  or  she understands the nature of an oath. If under
  either of the above provisions, a witness is deemed to be ineligible  to
  testify  under  oath,  the witness may nevertheless be permitted to give
  unsworn evidence if the court is satisfied that  the  witness  possesses
  sufficient intelligence and capacity to justify the reception thereof. A
  witness  understands  the nature of an oath if he or she appreciates the
  difference between truth and falsehood, the necessity  for  telling  the
  truth,  and  the  fact  that  a  witness  who  testifies  falsely may be
  punished.
    3. A defendant may not be convicted of an offense solely upon  unsworn
  evidence given pursuant to subdivision two.

S 60.22 Rules of evidence; corroboration of accomplice testimony.
  1.  A defendant may not be convicted of any offense upon the testimony
of an accomplice unsupported by corroborative evidence tending to
connect the defendant with the commission of such offense.
  2.  An "accomplice" means a witness in a criminal action who,
according to evidence adduced in such action, may reasonably be
considered to have participated in:
  (a)  The offense charged; or
  (b)  An offense based upon the same or some of the same facts or
conduct which constitute the offense charged.
  3.  A witness who is an accomplice as defined in subdivision two is no
less such because a prosecution or conviction of himself would be barred
or precluded by some defense or exemption, such as infancy, immunity or
previous prosecution, amounting to a collateral impediment to such a
prosecution or conviction, not affecting the conclusion that such
witness engaged in the conduct constituting the offense with the mental
state required for the commission thereof.

S 60.25 Rules of evidence; identification by means of previous
              recognition, in absence of present identification.
  1.  In any criminal proceeding in which the defendant`s commission of
an offense is in issue, testimony as provided in subdivision two may be
given by a witness when:
  (a)  Such witness testifies that:
  (i)  He observed the person claimed by the people to be the defendant
either at the time and place of the commission of the offense or upon
some other occasion relevant to the case; and
  (ii)  On a subsequent occasion he observed, under circumstances
consistent with such rights as an accused person may derive under the
constitution of this state or of the United States, a person whom he
recognized as the same person whom he had observed on the first or
incriminating occasion; and
  (iii)  He is unable at the proceeding to state, on the basis of
present recollection, whether or not the defendant is the person in
question; and
  (b)  It is established that the defendant is in fact the person whom
the witness observed and recognized on the second occasion.  Such fact
may be established by testimony of another person or persons to whom the
witness promptly declared his recognition on such occasion.
  2.  Under circumstances prescribed in subdivision one, such witness
may testify at the criminal proceeding that the person whom he observed
and recognized on the second occasion is the same person whom he
observed on the first or incriminating occasion.  Such testimony,
together with the evidence that the defendant is in fact the person whom
the witness observed and recognized on the second occasion, constitutes
evidence in chief.

S 60.30 Rules of evidence; identification by means of previous
             recognition, in addition to present identification.
  In any criminal proceeding in which the defendant`s commission of an
offense is in issue, a witness who testifies that (a) he observed the
person claimed by the people to be the defendant either at the time and
place of the commission of the offense or upon some other occasion
relevant to the case, and (b) on the basis of present recollection, the
defendant is the person in question and (c) on a subsequent occasion he
observed the defendant, under circumstances consistent with such rights
as an accused person may derive under the constitution of this state or
of the United States, and then also recognized him as the same person
whom he had observed on the first or incriminating occasion, may, in
addition to making an identification of the defendant at the criminal
proceeding on the basis of present recollection as the person whom he
observed on the first or incriminating occasion, also describe his
previous recognition of the defendant and testify that the person whom
he observed on such second occasion is the same person whom he had
observed on the first or incriminating occasion.  Such testimony
constitutes evidence in chief.

S 60.35 Rules of evidence; impeachment of own witness by proof of prior
             contradictory statement.
  1.  When, upon examination by the party who called him, a witness in a
criminal proceeding gives testimony upon a material issue of the case
which tends to disprove the position of such party, such party may
introduce evidence that such witness has previously made either a
written statement signed by him or an oral statement under oath
contradictory to such testimony.
  2.  Evidence concerning a prior contradictory statement introduced
pursuant to subdivision one may be received only for the purpose of
impeaching the credibility of the witness with respect to his testimony
upon the subject, and does not constitute evidence in chief.  Upon
receiving such evidence at a jury trial, the court must so instruct the
jury.
  3.  When a witness has made a prior signed or sworn statement
contradictory to his testimony in a criminal proceeding upon a material
issue of the case, but his testimony does not tend to disprove the
position of the party who called him and elicited such testimony,
evidence that the witness made such prior statement is not admissible,
and such party may not use such prior statement for the purpose of
refreshing the recollection of the witness in a manner that discloses
its contents to the trier of the facts.

S 60.40 Rules of evidence; proof of previous conviction; when allowed.
  1.  If in the course of a criminal proceeding, any witness, including
a defendant, is properly asked whether he was previously convicted of a
specified offense and answers in the negative or in an equivocal manner,
the party adverse to the one who called him may independently prove such
conviction.  If in response to proper inquiry whether he has ever been
convicted of any offense the witness answers in the negative or in an
equivocal manner, the adverse party may independently prove any previous
conviction of the witness.
  2.  If a defendant in a criminal proceeding, through the testimony of
a witness called by him, offers evidence of his good character, the
people may independently prove any previous conviction of the defendant
for an offense the commission of which would tend to negate any
character trait or quality attributed to the defendant in such witness`
testimony.
  3.  Subject to the limitations prescribed in section 200.60, the
people may prove that a defendant has been previously convicted of an
offense when the fact of such previous conviction constitutes an element
of the offense charged, or proof thereof is otherwise essential to the
establishment of a legally sufficient case.

S 60.42 Rules of evidence; admissibility of evidence of victim`s sexual
             conduct in sex offense cases.
Evidence of a victim's sexual conduct shall not  be  admissible  in  a
prosecution for an offense or an attempt to commit an offense defined in
article one hundred thirty of the penal law unless such evidence:
  1.  proves  or tends to prove specific instances of the victim's prior
sexual conduct with the accused; or
  2. proves or tends to prove that the victim has been convicted  of  an
offense  under  section 230.00 of the penal law within three years prior
to the sex offense which is the subject of the prosecution; or
  3. rebuts evidence introduced by the people of the victim's failure to
engage in sexual intercourse, oral sexual conduct, anal  sexual  conduct
or sexual contact during a given period of time; or
  4.  rebuts  evidence introduced by the people which proves or tends to
prove that the accused is the cause  of  pregnancy  or  disease  of  the
victim, or the source of semen found in the victim; or
  5.  is  determined by the court after an offer of proof by the accused
outside the hearing of the jury,  or  such  hearing  as  the  court  may
require,  and a statement by the court of its findings of fact essential
to its determination, to be relevant and admissible in the interests  of
justice.

S 60.43 Rules of evidence; admissibility of evidence of victim`s sexual
             conduct in non-sex offense cases.
  Evidence of the victim`s sexual conduct, including the past sexual
conduct of a deceased victim, may not be admitted in a prosecution for
any offense, attempt to commit an offense or conspiracy to commit an
offense defined in the penal law unless such evidence is determined by
the court to be relevant and admissible in the interests of justice,
after an offer of proof by the proponent of such evidence outside the
hearing of the jury, or such hearing as the court may require, and a
statement by the court of its findings of fact essential to its
determination.

S 60.44 Use of anatomically correct dolls.
 Any person who is less than sixteen years old may in the discretion of
the court and where helpful and appropriate, use an anatomically correct
doll   in  testifying  in  a  criminal  proceeding  based  upon  conduct
prohibited by article one hundred thirty, article two hundred  sixty  or
section 255.25, 255.26 or 255.27 of the penal law.

S 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.

S 60.46 Rules of evidence, family offense proceedings in family court.
  Evidence of a written or oral admission or any testimony given by
either party, or evidence derived therefrom, in a proceeding under
article eight of the family court act without the benefit of counsel in
such proceeding may not be received into evidence in a criminal
proceeding except for the purposes of impeachment unless such party
waives the right to counsel on the record. Nothing herein shall be
deemed to prohibit any testimony or exhibits received into evidence in a
criminal proceeding, or any orders, decisions or judgments arising from
such proceeding from being received into evidence in any proceeding
under article eight of the family court act.

S 60.47 Possession of condoms; receipt into evidence.
   Evidence  that  a  person was in possession of one or more condoms may
 not be admitted  at  any  trial,  hearing,  or  other  proceeding  in  a
 prosecution  for  section  230.00 or section 240.37 of the penal law for
 the purpose of establishing probable cause for an arrest or proving  any
 person's commission or attempted commission of such offense.

S 60.48 Rules of evidence; admissibility of evidence of victim`s manner
             of dress in sex offense cases.
  Evidence of the manner in which the victim was dressed at the time of
the commission of an offense may not be admitted in a prosecution for
any offense, or an attempt to commit an offense, defined in article one
hundred thirty of the penal law, unless such evidence is determined by
the court to be relevant and admissible in the interests of justice,
after an offer of proof by the proponent of such evidence outside the
hearing of the jury, or such hearing as the court may require, and a
statement by the court of its findings of fact essential to its
determination.

S 60.50 Rules of evidence; statements of defendants; corroboration.
  A person may not be convicted of any offense solely upon evidence of a
confession or admission made by him without additional proof that the
offense charged has been committed.

S 60.55 Rules of evidence; psychiatric testimony in certain cases.
  1. When, in connection with the affirmative defense of lack of
criminal responsibility by reason of mental disease or defect, a
psychiatrist or licensed psychologist testifies at a trial concerning
the defendant`s mental condition at the time of the conduct charged to
constitute a crime, he must be permitted to make a statement as to the
nature of any examination of the defendant, the diagnosis of the mental
condition of the defendant and his opinion as to the extent, if any, to
which the capacity of the defendant to know or appreciate the nature and
consequence of such conduct, or its wrongfulness, was impaired as a
result of mental disease or defect at that time.
  The psychiatrist or licensed psychologist must be permitted to make
any explanation reasonably serving to clarify his diagnosis and opinion,
and may be cross-examined as to any matter bearing on his competency or
credibility or the validity of his diagnosis or opinion.
  2. Any statement made by the defendant to a psychiatrist or licensed
psychologist during his examination of the defendant shall be
inadmissible in evidence on any issue other than that of the affirmative
defense of lack of criminal responsibility, by reason of mental disease
or defect. The statement shall, however, be admissible upon the issue of
the affirmative defense of lack of criminal responsibility by reason of
mental disease or defect, whether or not it would otherwise be deemed a
privileged communication. Upon receiving the statement in evidence, the
court must instruct the jury that the statement is to be considered only
on the issue of such affirmative defense and may not be considered by it
in its determination of whether the defendant committed the act
constituting the crime charged.

S 60.60 Rules of evidence; certificates concerning judgments of
             conviction and fingerprints.
  1.  A certificate issued by a criminal court, or the clerk thereof,
certifying that a judgment of conviction against a designated defendant
has been entered in such court, constitutes presumptive evidence of the
facts stated in such certificate.
  2.  A report of a public servant charged with the custody of official
fingerprint records which contains a certification that the fingerprints
of a designated person who has previously been convicted of an offense
are identical with those of a defendant in a criminal action,
constitutes presumptive evidence of the fact that such defendant has
previously been convicted of such offense.

S 60.70 Rules of evidence; dangerous drugs destroyed pursuant to court order.
  The destruction of dangerous drugs pursuant to the provisions of
article seven hundred fifteen hereof shall not preclude the admission on
trial or in a proceeding in connection therewith of testimony or
evidence where such testimony or evidence would otherwise have been
admissible if such drugs had not been destroyed.

S 60.75 Rules of evidence; chemical test evidence.
  In any prosecution where two or more offenses against the same
defendant are properly joined in one indictment or charged in two
accusatory instruments properly consolidated for trial purposes and
where one such offense charges a violation of any subdivision of section
eleven hundred ninety-two of the vehicle and traffic law, chemical test
evidence properly admissible as evidence of intoxication under
subdivision one of section eleven hundred ninety-five of such law shall
also, if relevant, be received in evidence with regard to the remaining
charges in the indictments.

S 60.76 Rules of evidence; rape crisis counselor evidence in certain cases.
  Where disclosure of a communication which would have been privileged
pursuant to section forty-five hundred ten of the civil practice law and
rules is sought on the grounds that the privilege has been waived or
that disclosure is required pursuant to the constitution of this state
or the United States, the party seeking disclosure must file a written
motion supported by an affidavit containing specific factual allegations
providing grounds that disclosure is required. Upon the filing of such
motion and affidavit, the court shall conduct an in camera review of the
communication outside the presence of the jury and of counsel for all
parties in order to determine whether disclosure of any portion of the
communication is required.

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