NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4992A
SPONSOR: Paulin 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 SPECIFIC PROVISIONS:
Section 1 adds a new section 60.77 to the criminal procedure law 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 assault. Such evidence may be considered on any matter to
which is it relevant, including to prove that the defendant acted in
conformity therewith or had a propensity to engage in similar wrongful
acts. This section also states 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. It
does follow 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 trying to bring evidence in 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
as highly prejudicial. Evidence of prior bad acts or crimes will only be
allowed in if the probative value of the evidence outweighs any preju-
dice towards the defendant.
This bill would allow New York courts to admit evidence that a defendant
has committed any prior sexual offenses in a criminal proceeding in
which a defendant is accused of a sexual offense.
The Harvey Weinstein case has highlighted the need to codify FRE 413 in
New York. In 2020, he was convicted in New York of a 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 admittance of evidence
of his prior sex assaults under the Molineux Rule. At that time,
Weinstein's defense team unsuccessfully filed an appeal arguing that
such evidence should never have been allowed. 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 erroneous-
ly 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.
Sexual offenses are especially heinous crimes and given the likelihood
of recidivism, it is necessary to codify FRE 413 and allow for evidence
of prior offense to be admitted in sexual offense proceedings. Success-
fully bringing in such evidence under Molineux is a difficult hurdle for
prosecutors, and codifying FRE 413 will ensure that such evidence is
permissible and will not be subject to challenges.
LEGISLATIVE HISTORY:
A10588 of 2022, referred to Codes.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
4992--A
2023-2024 Regular Sessions
IN ASSEMBLY
February 27, 2023
___________
Introduced by M. of A. PAULIN, DINOWITZ, GUNTHER, BURDICK, RAGA, SIMON,
GLICK, HEVESI, SHIMSKY, WALLACE, LUNSFORD, SANTABARBARA, FAHY, CURRAN
-- 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
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 in which a defendant is accused of a sexu-
6 al offense, the court may admit evidence that the defendant committed
7 any other sexual offense. Such evidence may be considered on any matter
8 to which it is relevant, including to prove that the defendant acted in
9 conformity therewith or had a propensity to engage in similar wrongful
10 acts.
11 2. The court, in its discretion, may exclude such evidence if its
12 probative value is outweighed by the probability that its admission will
13 create undue prejudice to the defendant.
14 3. For purposes of this section, "sexual offense" shall include an act
15 committed in any jurisdiction that involves conduct proscribed by any
16 section of article one hundred thirty of the penal law, or by section
17 230.34 or 230.34-a of the penal law.
18 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02949-09-4
