NYS CPL Law
Criminal Procedure Law
New York State Consolidated Laws
Article 660 - NY Criminal Procedure Law
SECURING TESTIMONY FOR USE IN A SUBSEQUENT PROCEEDING EXAMINATION OF WITNESSES CONDITIONALLY
S 660.10 Examination of witnesses conditionally; in general.
After a defendant has been arraigned upon an accusatory instrument,
and under circumstances prescribed in this article, a criminal court
may, upon application of either the people or a defendant, order that a
witness or prospective witness in the action be examined conditionally
under oath in order that such testimony may be received into evidence at
subsequent proceedings in or related to the action.
S 660.20 Examination of witnesses conditionally; grounds for order.
An order directing examination of a witness conditionally must be
based upon the ground that there is reasonable cause to believe that
1. Possesses information material to the criminal action or
proceeding in issue; and
2. Will not be amenable or responsive to legal process or available
as a witness at a time when his testimony will be sought, either because
(a) About to leave the state and not return for a substantial period
of time; or
(b) Physically ill or incapacited.
S 660.30 Examination of witnesses conditionally; when and to what
courts application may be made.
1. An application to examine a witness conditionally may be made at
any time after the defendant has been arraigned upon an accusatory
instrument and before termination of the action, or of a proceeding
therein or related thereto, in which the witness`s testimony is sought.
2. Such application must be made to and determined by the following
courts under the indicated circumstances:
(a) If the action is pending in a local criminal court as a result of
an accusatory instrument filed therewith, the application must be made
to and determined by such local criminal court;
(b) If the defendant has been held by a local criminal court for the
action of a grand jury on the basis of a felony complaint, or if an
indictment has been filed against him, the application must be made to
and determined by the superior court by which the grand jury was or is
to be impaneled or in which the indictment is pending. If the superior
court by which the grand jury is to be impaneled is the supreme court,
the motion may, in the alternative, be made in the county court of the
county in which the action is pending.
S 660.40 Examination of witnesses conditionally; application and notice.
1. An application to examine a witness conditionally must be made in
writing, must be subscribed and sworn to, and must contain:
(a) The title of the action, the offense or offenses charged, the
nature and status of the action, and the name and residential address of
the witness sought to be examined; and
(b) A statement that there is reasonable cause to believe that grounds
for such an examination, as specified in section 660.20, exist, together
with allegations of fact supporting such statement. Such allegations of
fact may be those of the applicant, or those of another person in an
accompanying deposition, or of both. They may be based either upon
personal knowledge of the deponent or upon information and belief,
provided that in the latter event the sources of such information and
the grounds of such belief are stated.
2. The application may also contain a request that the examination, in
addition to its being recorded in the same manner as would be required
were the witness testifying at trial, also be recorded by videotape or
other photographic method approved by and subject to standards and
administrative policies promulgated pursuant to section twenty-eight of
article six of the constitution.
3. A copy of the application, with reasonable notice and opportunity
to be heard, must be served upon the other party to the action. If the
defendant is the applicant, such service must be upon the district
attorney. If the people are the applicant, such service must be upon the
defendant and upon his attorney if any. The respondent party may file
and serve a sworn written answer to the application.
S 660.50 Examination of witnesses conditionally; determination of
1. Before ruling upon the application, the court may, in addition to
examining the papers and hearing oral argument, make any inquiry it
deems appropriate for the purpose of making findings of fact essential
to the determination. For such purpose, it may examine witnesses, under
oath or otherwise, subpoena or call witnesses and authorize the
attorneys for the parties to do so.
2. If the court is satisfied that grounds for the application exist,
it must order an examination of the witness conditionally at a
designated time and place. Such examination must be conducted by the
same court; except that, if it is to be held in another county, it may
be conducted by a designated superior court of such other county.
3. The court must order that the examination be recorded in the same
manner as would be required were the witness testifying at trial, and
the court may, in addition, order that the examination also be recorded
by videotape or other photographic method approved by and subject to
standards and administrative policies promulgated pursuant to section
twenty-eight of article six of the constitution.
4. Upon ordering the examination, the court must direct the party
securing the order of examination to serve a copy of the order upon the
respondent party and, if a defendant be such, upon his attorney also,
and must either issue a subpoena for the witness` attendance thereat or
authorize the applicant party`s attorney to do so.
S 660.60 Examination of witnesses conditionally; the examination proceeding.
1. The examination proceeding must be conducted in the same manner as
would be required were the witness testifying at a trial, and must be
recorded in such fashion as the court has directed pursuant to
subdivision three of section 660.50 of this chapter. The witness must
testify under oath. The applicant party must first examine the witness
and the respondent party may then cross-examine him, with each party
entitled to register objections and to receive rulings of the court
2. Upon conclusion of the examination, a transcript and any videotape
or photographic recording thereof must be certified and filed with the
court which ordered the examination.
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