NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4992B
SPONSOR: Paulin TITLE OF BILL:
An act to amend the criminal procedure law, in relation to allowing
evidence of a defendant's prior sexual assault to be admissible in a
sexual assault proceeding
PURPOSE:
To allow courts to admit evidence that a defendant has committed prior
sexual offenses in a criminal proceeding in which a defendant is accused
of a sexual offense.
SUMMARY OF PROVISIONS:
Section 1 adds a new section 60.77 to the criminal procedure law to
allow courts to admit evidence of any other crime, wrong, or act for a
non-propensity purpose. This section also allows the court to admit
evidence that a defendant has committed prior sexual offenses in a crim-
inal proceeding in which such defendant is accused of a sexual assault.
Such evidence may be considered on any matter to which is it relevant.
This section further states that the court, in its discretion, may
exclude evidence if its probative value is outweighed by the probability
that its admission will create undue prejudice to the defendant.
Section 2 provides the effective date.
JUSTIFICATION:
Unlike most states, New York does not have a statutory code of evidence.
The majority of New York's evidence rules come from case law, and a
limited number of rules are contained in the Criminal Procedure Law.
Sixteen states have adopted the Federal Rules of Evidence (FRE). Pursu-
ant to FRE 413, in a criminal case in which a defendant is accused of a
sexual assault, the court may admit evidence that the defendant commit-
ted any other past sexual assault. New York has not adopted FRE 413;
rather, New York courts apply the narrower Molineux Rule, named for a
Court of Appeals case, which allows prosecutors to bring in proof of a
defendant's prior bad acts or crimes to "establish motive, opportunity,
intent, common scheme or plan, knowledge, identity or absence of mistake
or accident" (See People v. Molineux, 168 N.Y. 264, 1901).
Prosecutors attempting to bring in evidence under the Molineux Rule have
a very high threshold to cross. It is not often used successfully in New
York, since any evidence of prior bad acts or crimes is typically deemed
highly prejudicial. Evidence of prior bad acts or crimes will only be
admitted if the probative value of the evidence outweighs undue preju-
dice to the defendant.
This bill would allow New York courts to admit evidence that a defendant
had committed a prior sexual offense in a criminal proceeding in which a
defendant is accused of a sexual offense, and further codify the
purposes for which evidence of a prior crime or bad act is admissible.
The need for this legislation was highlighted by Court of Appeals'
recent overturn of Harvey Weinstein's 2020 conviction of criminal sexual
act in the first degree and rape in the third degree, for offenses
against two women. The judge in his trial allowed for the admission of
evidence of his prior sex assaults under the Molineux Rule. Weinstein's
defense team objected to the admission of the evidence at trial, and
following his conviction unsuccessfully filed an appeal to the Appellate
Division arguing that such evidence should never have been admitted.
However, in 2024, Weinstein's team was successful and the New York Court
of Appeals over turned the 2020 conviction, concluding that, "the trial
court erroneously admitted testimony of uncharged, alleged prior sexual
acts against persons other than the complainants of the underlying
case."
This legislation is necessary to ensure that survivors will be able to
rely on this type of evidence in future cases. According to the Depart-
ment of Justice, recidivism rates for those who commit sexual assaults
are approximately 24% percent after 15 years. Furthermore, rapists and
sex offenders are far more likely overall, as compared to non-sex offen-
ders, to reoffend with a sexual crime, making evidence of prior sexual
offense highly probative.
Sexual offenses are especially heinous crimes and given the likelihood
of recidivism, it is necessary to allow for evidence of prior offenses
to be admitted in sexual offense proceedings. Successfully bringing in
such evidence under Molineux is a difficult hurdle for prosecutors, and
allowing courts to admit relevant evidence of prior sexual offenses will
allow the finder of fact to examine all relevant evidence in a sexual
offense trial.
LEGISLATIVE HISTORY:
A10588 of 2022, referred to Codes.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
4992--B
2023-2024 Regular Sessions
IN ASSEMBLY
February 27, 2023
___________
Introduced by M. of A. PAULIN, DINOWITZ, GUNTHER, BURDICK, RAGA, SIMON,
GLICK, HEVESI, SHIMSKY, WALLACE, SANTABARBARA, FAHY, CURRAN, L. ROSEN-
THAL, SEAWRIGHT, McDONALD, CONRAD, THIELE, ARDILA, KIM, COLTON, LEE,
PHEFFER AMATO, SIMONE, EACHUS, ZACCARO, PRETLOW, LEVENBERG, McDONOUGH,
HUNTER, ROZIC, BARRETT, STIRPE, CLARK, BUTTENSCHON, STERN -- read once
and referred to the Committee on Codes -- recommitted to the Committee
on Codes in accordance with Assembly Rule 3, sec. 2 -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- again reported from said committee with amend-
ments, ordered reprinted as amended and recommitted to said committee
AN ACT to amend the criminal procedure law, in relation to allowing
evidence of a defendant's prior sexual assault to be admissible in a
sexual assault proceeding
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding a new
2 section 60.77 to read as follows:
3 § 60.77 Rules of evidence; admissibility of defendant committing another
4 sexual offense in a sexual offense case.
5 1. In a criminal proceeding, evidence of any other crime, wrong, or
6 act may be admissible for any non-propensity purpose, such as proving
7 motive, opportunity, intent, preparation, plan, knowledge, state of mind
8 of the defendant, state of mind of the victim or other party, identity,
9 absence of mistake, lack of accident, modus operandi, common scheme or
10 plan, or any other non-propensity purpose.
11 2. In a criminal proceeding in which a defendant is accused of a sexu-
12 al offense, the court may admit evidence that the defendant committed
13 any other sexual offense. Such evidence may be considered on any matter
14 to which it is relevant.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02949-10-4
A. 4992--B 2
1 3. The court, in its discretion, may exclude evidence described in
2 this section if its probative value is outweighed by the probability
3 that its admission will create undue prejudice to the defendant.
4 4. For purposes of this section, "sexual offense" shall include an act
5 committed in any jurisdiction that involves conduct proscribed by any
6 section of article one hundred thirty of the penal law, or by section
7 230.34 or 230.34-a of the penal law.
8 § 2. This act shall take effect immediately.
