Section 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, 2011