Rules of evidence; admissibility of statements of defendants

§ 60.45 Rules of evidence; admissibility of statements of defendants.\n 1. Evidence of a written or oral confession, admission, or other\nstatement made by a defendant with respect to his participation or lack\nof participation in the offense charged, may not be received in evidence\nagainst him in a criminal proceeding if such statement was involuntarily\nmade.\n 2. A confession, admission or other statement is "involuntarily made"\nby a defendant when it is obtained from him:\n (a) By any person by the use or threatened use of physical force upon\nthe defendant or another person, or by means of any other improper\nconduct or undue pressure which impaired the defendant's physical or\nmental condition to the extent of undermining his ability to make a\nchoice whether or not to make a statement; or\n (b) By a public servant engaged in law enforcement activity or by a\nperson then acting under his direction or in cooperation with him:\n (i) by means of any promise or statement of fact, which promise or\nstatement creates a substantial risk that the defendant might falsely\nincriminate himself; or\n (ii) in violation of such rights as the defendant may derive from the\nconstitution of this state or of the United States.\n 3. (a) Where a person is subject to custodial interrogation by a\npublic servant at a detention facility, the entire custodial\ninterrogation, including the giving of any required advice of the rights\nof the individual being questioned, and the waiver of any rights by the\nindividual, shall be recorded by an appropriate video recording device\nif the interrogation involves a class A-1 felony, except one defined in\narticle two hundred twenty of the penal law; felony offenses defined in\nsection 130.95 and 130.96 of the penal law; or a felony offense defined\nin article one hundred twenty-five or one hundred thirty of such law\nthat is defined as a class B violent felony offense in section 70.02 of\nthe penal law. For purposes of this paragraph, the term "detention\nfacility" shall mean a police station, correctional facility, holding\nfacility for prisoners, prosecutor's office or other facility where\npersons are held in detention in connection with criminal charges that\nhave been or may be filed against them.\n (b) No confession, admission or other statement shall be subject to a\nmotion to suppress pursuant to subdivision three of section 710.20 of\nthis chapter based solely upon the failure to video record such\ninterrogation in a detention facility as defined in paragraph (a) of\nthis subdivision. However, where the people offer into evidence a\nconfession, admission or other statement made by a person in custody\nwith respect to his or her participation or lack of participation in an\noffense specified in paragraph (a) of this subdivision, that has not\nbeen video recorded, the court shall consider the failure to record as a\nfactor, but not as the sole factor, in accordance with paragraph (c) of\nthis subdivision in determining whether such confession, admission or\nother statement shall be admissible.\n (c) Notwithstanding the requirement of paragraph (a) of this\nsubdivision, upon a showing of good cause by the prosecutor, the\ncustodial interrogation need not be recorded. Good cause shall include,\nbut not be limited to:\n (i) If electronic recording equipment malfunctions.\n (ii) If electronic recording equipment is not available because it was\notherwise being used.\n (iii) If statements are made in response to questions that are\nroutinely asked during arrest processing.\n (iv) If the statement is spontaneously made by the suspect and not in\nresponse to police questioning.\n (v) If the statement is made during an interrogation that is conducted\nwhen the interviewer is unaware that a qualifying offense has occurred.\n (vi) If the statement is made at a location other than the "interview\nroom" because the suspect cannot be brought to such room, e.g., the\nsuspect is in a hospital or the suspect is out of state and that state\nis not governed by a law requiring the recordation of an interrogation.\n (vii) If the statement is made after a suspect has refused to\nparticipate in the interrogation if it is recorded, and appropriate\neffort to document such refusal is made.\n (viii) If such statement is not recorded as a result of an inadvertent\nerror or oversight, not the result of any intentional conduct by law\nenforcement personnel.\n (ix) If it is law enforcement's reasonable belief that such recording\nwould jeopardize the safety of any person or reveal the identity of a\nconfidential informant.\n (x) If such statement is made at a location not equipped with a video\nrecording device and the reason for using that location is not to\nsubvert the intent of the law. For purposes of this section, the term\n"location" shall include those locations specified in paragraph (b) of\nsubdivision four of section 305.2 of the family court act.\n (d) In the event the court finds that the people have not shown good\ncause for the non-recording of the confession, admission, or other\nstatement, but determines that a non-recorded confession, admission or\nother statement is nevertheless admissible because it was voluntarily\nmade then, upon request of the defendant, the court must instruct the\njury that the people's failure to record the defendant's confession,\nadmission or other statement as required by this section may be weighed\nas a factor, but not as the sole factor, in determining whether such\nconfession, admission or other statement was voluntarily made, or was\nmade at all.\n (e) Video recording as required by this section shall be conducted in\naccordance with standards established by rule of the division of\ncriminal justice services.\n