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                              * ARTICLE 65
                  USE OF CLOSED-CIRCUIT TELEVISION FOR
                         CERTAIN CHILD WITNESSES
Section 65.00   Definitions.
        65.10   Closed-circuit television; general rule; declaration of
                  vulnerability.
        65.20   Closed-circuit television; procedure for application and
                  grounds for determination.
        65.30   Closed-circuit television; special testimonial
                  procedure.
                  * NB Repealed effective September 1, 2013

* S 65.00 Definitions.
  As used in this article:
  1. "Child witness" means a person twelve years old or less who is or
will be called to testify in a criminal proceeding, other than a grand
jury proceeding, concerning an offense defined in article one hundred
thirty of the penal law or section 255.25 of such law which is the
subject of such criminal proceeding.
  2. "Vulnerable child witness" means a child witness whom a court has
declared to be vulnerable.
  3. "Testimonial room" means any room, separate and apart from the
courtroom, which is furnished comfortably and less formally than a
courtroom and from which the testimony of a vulnerable child witness can
be transmitted to the courtroom by means of live, two-way closed-circuit
television.
  4. "Live, two-way closed-circuit television" means a simultaneous
transmission, by closed-circuit television, or other electronic means,
between the courtroom and the testimonial room in accordance with the
provisions of section 65.30.
  5. "Operator" means the individual authorized by the court to operate
the closed-circuit television equipment used in accordance with the
provisions of this article.
  6. A person occupies "a position of authority with respect to a child"
when he or she is a parent, guardian or other person responsible for the
custody or care of the child at the relevant time or is any other person
who maintains an ongoing personal relationship with such parent,
guardian or other person responsible for custody or care, which
relationship involves his or her living, or his or her frequent and
repeated presence, in the same household or premises as the child.
  * NB Repealed Effective September 1, 2013

* S 65.10 Closed-circuit television; general rule; declaration of
              vulnerability.
  1. A child witness shall be declared vulnerable when the court, in
accordance with the provisions of section 65.20, determines by clear and
convincing evidence that it is likely, as a result of extraordinary
circumstances, that such child witness will suffer severe mental or
emotional harm if required to testify at a criminal proceeding without
the use of live, two-way closed-circuit television and that the use of
such live, two-way closed-circuit television will help prevent, or
diminish the likelihood or extent of, such harm.
  2. When the court declares a child witness to be vulnerable, it shall,
except as provided in subdivision four of section 65.30, authorize the
taking of the testimony of the vulnerable child witness from the
testimonial room by means of live, two-way closed-circuit television.
Under no circumstances shall the provisions of this article be construed
to authorize a closed-circuit television system by which events in the
courtroom are not transmitted to the testimonial room during the
testimony of the vulnerable child witness.
  3. Nothing herein shall be contrued to preclude the court from
exercising its power to close the courtroom or from exercising any
authority it otherwise may have to protect the well-being of a witness
and the rights of the defendant.
  * NB Repealed Effective September 1, 2013

* S 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 five of this section, the district attorney  shall,  subject
to  a protective order, comply with the provisions of subdivision one of
section 240.45 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  two  of  section 240.45 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, 2013

* S 65.30 Closed-circuit television; special testimonial procedures.
  1. When the court has entered an order pursuant to section 65.20, the
testimony of the vulnerable child witness shall be taken in the
testimonial room and the image and voice of the vulnerable child
witness, as well as the image of all other persons other than the
operator present in the testimonial room, shall be transmitted live by
means of closed-circuit television to the courtroom. The courtroom shall
be equipped with monitors sufficient to permit the judge, jury,
defendant and attorneys to observe the demeanor of the vulnerable child
witness during his or her testimony. Unless the courtroom has been
closed pursuant to court order, the public shall also be permitted to
hear the testimony and view the image of the vulnerable child witness.
  2. In all instances, the image of the jury shall be simultaneously
transmitted to the vulnerable child witness in the testimonial room. If
the court order issued pursuant to section 65.20 specifies that the
vulnerable child witness shall testify outside the physical presence of
the defendant, the image of the defendant and the image and voice of the
person examining the vulnerable child witness shall also be
simultaneously transmitted to the vulnerable child witness in the
testimonial room.
  3. The operator shall place herself or himself and the closed-circuit
television equipment in a position that permits the entire testimony of
the vulnerable child witness to be transmitted to the courtroom but
limits the ability of the vulnerable child witness to see or hear the
operator or the equipment.
  4. Notwithstanding any provision of this article, if the court in a
particular case involving a vulnerable child witness determines that
there is no live, two-way closed-circuit television equipment available
in the court or another court in the county or which can be transported
to the court from another county or that such equipment, if available,
is technologically inadequate to protect the constitutional rights of
the defendant, it shall not permit the use of the closed-circuit
television procedures authorized by this article.
  5. If the order of the court entered pursuant to section 65.20
requires that the defendant remain in the courtroom, the attorney for
the defendant and the district attorney shall also remain in the
courtroom unless the court is satisfied that their presence in the
testimonial room will not impede full and private communication between
the defendant and his or her attorney and will not encourage the jury to
draw an inference adverse to the interest of the defendant.
  6. Upon request of the defendant, the court shall instruct the jury
that they are to draw no inference from the use of live, two-way
closed-circuit television in the examination of the vulnerable child
witness.
  7. The vulnerable child witness shall testify under oath except as
specified in subdivision two of section 60.20. The examination and
cross-examination of the vulnerable child witness shall, in all other
respects, be conducted in the same manner as if the vulnerable child
witness had testified in the courtroom.
  8. When the testimony of the vulnerable child witness is transmitted
from the testimonial room into the courtroom, the court stenographer
shall record the textimony in the same manner as if the vulnerable child
witness had testified in the courtroom.
  * NB Repealed Effective September 1, 2013