N.Y. Comp. Codes R. & Regs. tit. 9 § 517.3

Current through Register Vol. 46, No. 25, June 18, 2024

Section 517.3 - Exclusionary rules and related matters concerning self-incrimination, search and seizure, and eyewitness identification

(a) Privilege concerning compulsory self-incrimination.

(1) General rule. The privileges against self-incrimination provided by the Fifth Amendment to the Constitution of the United States and Military Law, section 130.31 are applicable only to evidence of a testimonial or communicative nature. The privilege most beneficial to the individual asserting the privilege shall be applied.

(2) Standing.

(i) In general. The privilege of a witness to refuse to respond to a question the answer to which may tend to incriminate the witness is a personal one that the witness may exercise or waive at the discretion of the witness.

(ii) Judicial advice. If a witness who is apparently uninformed of the privileges under this subdivision appears likely to incriminate himself or herself, the military judge should advise the witness of the right to decline to make any answer that might tend to incriminate the witness and that any self-incriminating answer the witness might make can later be used as evidence against the witness. Counsel for any party or for the witness may request the military judge to so advise a witness provided that such a request is made out of the hearing of the witness and, except in a special court-martial without a military judge, the members. Failure to so advise a witness does not make the testimony of the witness inadmissible.

(3) Exercise of the privilege. If a witness states that the answer to a question may tend to incriminate him or her, the witness may not be required to answer unless facts and circumstances are such that no answer the witness might make to the question could have the effect of tending to incriminate the witness or that the witness has, with respect to the question, waived the privilege against self-incrimination. A witness may not assert the privilege if the witness is not subject to criminal penalty as a result of an answer by reason of immunity, running of the statute of limitations, or similar reason.

(i) Immunity generally. The minimum grant of immunity adequate to overcome the privilege is that which under either N.Y.R.C.M. 704 or other proper authority provides that neither the testimony of the witness nor any evidence obtained from the testimony may be used against the witness at any subsequent trial other than in a prosecution for perjury, false swearing, the making of a false official statement, or failure to comply with an order to testify after the military judge has ruled that the privilege may not be asserted by reason of immunity.

(ii) Notification of immunity or leniency. When a prosecution witness before a court-martial has been granted immunity or leniency in exchange for testimony, the grant shall be reduced to writing and shall be served on the accused prior to arraignment or within a reasonable time before the witness testifies. If notification is not made as required by this subdivision, the military judge may grant a continuance until notification is made, prohibit or strike the testimony of the witness, or enter such other order as may be required.

(4) Waiver by a witness. A witness who answers a question without having asserted the privilege against self-incrimination and thereby admits a self-incriminating fact may be required to disclose all information relevant to that fact except when there is a real danger of further self-incrimination. This limited waiver of the privilege applies only at the trial in which the answer is given, does not extend to a rehearing or new or other trial, and is subject to Mil. R. Evid. 608(b).

(5) Waiver by the accused. When an accused testifies voluntarily as a witness, the accused thereby waives the privilege against self-incrimination with respect to the matters concerning which he or she so testifies. If the accused is on trial for two or more offenses and on direct examination testifies concerning the issue of guilt or innocence as to only one or some of the offenses, the accused may not be cross-examined as to guilt or innocence with respect to the other offenses unless the cross-examination is relevant to an offense concerning which the accused has testified. This waiver is subject to Mil. R. Evid. 608(b).

(6) Effect of claiming the privilege.

(i) Generally. The fact that a witness has asserted the privilege against self-incrimination in refusing to answer a question cannot be considered as raising any inference unfavorable to either the accused or the government.

(ii) On cross-examination. If a witness asserts the privilege against self-incrimination on cross-examination, the military judge, upon motion, may strike the direct testimony of the witness in whole or in part, unless the matters to which the witness refuses to testify are purely collateral.

(iii) Pretrial. The fact that the accused during official questioning and in exercise of rights under the Fifth Amendment to the Constitution of the United States or Military Law, section 130.31, remained silent, refused to answer a certain question, requested counsel, or requested that the questioning be terminated is inadmissible against the accused.

(7) Instructions. When the accused does not testify at trial, defense counsel may request that the members of the court be instructed to disregard that fact and not to draw any adverse inference from it. Defense counsel may request that the members not be so instructed. Defense counsel's election shall be binding upon the military judge except that the military judge may give the instruction when the instruction is necessary in the interests of justice.

(b) Privilege concerning mental examination of an accused.

(1) General rule. The accused has a privilege to prevent any statement made by the accused at a mental examination ordered under N.Y.R.C.M. 706 and any derivative evidence obtained through use of such a statement from being received into evidence against the accused on the issue of guilt or innocence or during sentencing proceedings. This privilege may be claimed by the accused notwithstanding the fact that the accused may have been warned of the rights provided by Mil. R. Evid. 305 at the examination.

(2) Exceptions.

(i) There is no privilege under this subdivision when the accused first introduces into evidence such statements or derivative evidence.

(ii) An expert witness for the prosecution may testify as to reasons for the expert's conclusions and the reasons therefor as to the mental state of the accused if expert testimony offered by the defense as to the mental condition of the accused has been received in evidence, but such testimony may not extend to statements of the accused except as provided in subparagraph (i) of this paragraph.

(3) Release of evidence. If the defense offers expert testimony concerning the mental condition of the accused, the military judge, upon motion, shall order the release to the prosecution of the full contents, other than any statements made by the accused, of any report prepared pursuant to N.Y.R.C.M. 706. If the defense offers statements made by the accused at such examination, the military judge may upon motion order the disclosure of such statements made by the accused and contained in the report as may be necessary in the interests of justice.

(4) Noncompliance by the accused. The military judge may prohibit an accused who refuses to cooperate in a mental examination authorized under N.Y.R.C.M. 706 from presenting any expert medical testimony as to any issue that would have been the subject of the mental examination.

(5) Procedure. The privilege in this subdivision may be claimed by the accused only under the procedure set forth in Mil. R. Evid. 304 for an objection or a motion to suppress.

(c) Degrading questions. No person may be compelled to make a statement or produce evidence before any military tribunal if the statement or evidence is not material to the issue and may tend to degrade that person.

(d) Confessions and admissions.

(1) General rule. Except as provided in paragraph (2) of this subdivision, an involuntary statement or any derivative evidence therefrom may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this subdivision.

(2) Exceptions.

(i) Where the statement is involuntary only in terms of noncompliance with the requirements concerning counsel under Mil. R. Evid. 305(d), 305(e), and 305(g), this subdivision does not prohibit use of the statement to impeach by contradiction the in-court testimony of the accused or the use of such statement in a later prosecution against the accused for perjury, false swearing, or the making of a false official statement.

(ii) Evidence that was obtained as a result of an involuntary statement may be used when the evidence would have been obtained even if the involuntary statement had not been made.

(iii) Derivative evidence. Evidence that is challenged under this subdivision as derivative evidence may be admitted against the accused if the military judge finds by a preponderance of the evidence that the statement was made voluntarily, that the evidence was not obtained by use of the statement, or that the evidence would have been obtained even if the statement had not been made.

(3) Definitions. As used in these rules:

(i) A confession is an acknowledgment of guilt.

(ii) An admission is a self-incriminating statement falling short of an acknowledgment of guilt, even if it was intended by its maker to be exculpatory.

(iii) A statement is involuntary if it is obtained in violation of the self-incrimination privilege or due process clause of the Fifth Amendment to the Constitution of the United States, article 31, or through the use of coercion, unlawful influence, or unlawful inducement.

(4) Procedure.

(i) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense the contents of all statements, oral or written made by the accused that are relevant to the case, known to the trial counsel, and within the control of the Armed Forces.

(ii) Motions and objections.

(a) Motions to suppress or objections under this subdivision or Mil. R. Evid. 302 or 305 to statements that have been disclosed shall be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the objection.

(b) If the prosecution intends to offer against the accused a statement made by the accused that was not disclosed prior to arraignment, the prosecution shall provide timely notice to the military judge and to counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interests of justice.

(c) If evidence is disclosed as derivative evidence under this subdivision prior to arraignment, any motion to suppress or objection under this subdivision or Mil. R. Evid. 302 or 305 shall be made in accordance with the procedure for challenging a statement under clause (a) of this subparagraph. If such evidence has not been so disclosed prior to arraignment, the requirements of clause (b) apply.

(iii) Specificity. The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the taking of a statement, the military judge may make any order required in the interests of justice, including authorization for the defense to make a general motion to suppress or general objection.

(iv) Rulings. A motion to suppress or an objection to evidence made prior to plea shall be ruled upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at trial, but no such determination shall be deferred if a party's right to appeal the ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, the military judge shall state essential findings of fact on the record.

(v) Effect of guilty plea. Except as otherwise expressly provided in N.Y.R.C.M. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all privileges against self-incrimination and all motion's and objections under this subdivision with respect to that offense regardless of whether raised prior to plea.

(5) Burden of proof. When an appropriate motion or objection has been made by the defense under this subdivision, the prosecution has the burden of establishing the admissibility of the evidence. When a specific motion or objection has been required under subparagraph (4)(iii) of this subdivision, the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.

(i) In general. The military judge must find by a preponderance of the evidence that a statement by the accused was made voluntarily before it may be received into evidence. When trial is by a special court-martial without a military judge, a determination by the president of the court that a statement was made voluntarily is subject to objection by any member of the court. When such objection is made, it shall be resolved pursuant to N.Y.R.C.M. 801(e)(3)(C).

(ii) Weight of the evidence. If a statement is admitted into evidence, the military judge shall permit the defense to present relevant evidence with respect to the voluntariness of the statement and shall instruct the members to give such weight to the statement as it deserves under all the circumstances. When trial is by military judge without members, the military judge shall determine the appropriate weight to give the statement.

(6) Defense evidence. The defense may present evidence relevant to the admissibility of evidence as to which there has been an objection or motion to suppress under this subdivision. An accused may testify for the limited purpose of denying that the accused made the statement or that the statement was made voluntarily. Prior to the introduction of such testimony by the accused, the defense shall inform the military judge that the testimony is offered under this paragraph. When the accused testifies under this paragraph, the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.

(7) Corroboration. An admission or a confession of the accused may be considered as evidence against the accused on the question of guilt or innocence only if independent evidence, either direct or circumstantial, has been introduced that corroborates the essential facts admitted to justify sufficiently an inference of their truth other uncorroborated confessions or admissions of the accused that would themselves require corroboration may not be used to supply this independent evidence. If the independent evidence raises an inference of the truth of some but not all of the essential facts admitted, then the confession or admission may be considered as evidence against the accused only with respect to those essential facts stated in the confession or admission that are corroborated by the independent evidence. Corroboration is not required for a statement made by the accused before the court by which the accused is being tried, for statements made prior to or contemporaneously with the act, or for statements offered under a rule of evidence other than that pertaining to the admissibility of admissions or confessions.

(i) Quantum of evidence needed. The independent evidence necessary to establish corroboration need not be sufficient of itself to establish beyond a reasonable doubt the truth of facts stated in the admission or confession. The independent evidence need raise only an inference of the truth of the essential facts admitted. The amount and type of evidence introduced as corroboration is a factor to be considered by the trier of fact in determining the weight, if any, to be given to the admission or confession.

(ii) Procedure. The military judge alone shall determine when adequate evidence of corroboration has been received. Corroborating evidence usually is to be introduced before the admission or confession is introduced but the military judge may admit evidence subject to later corroboration.

(8) Miscellaneous.

(i) Oral statements. A voluntary oral confession or admission of the accused may be proved by the testimony of anyone who heard the accused make it, even if it was reduced to writing and the writing is not accounted for.

(ii) Completeness. If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.

(iii) Certain admissions by silence. A person's failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation.

(iv) Refusal to obey order to submit body substance. If an accused refuses a lawful order to submit for chemical analysis a sample of his or her blood, breath, urine or other body substance, evidence of such refusal may be admitted into evidence on:

(a) a charge of violating an order to submit such a sample; or

(b) any other charge on which the results of the chemical analysis would have been admissible.

(e) Warnings about rights.

(1) General rule. A statement obtained in violation of this subdivision is involuntary and shall be treated under Mil. R. Evid. 304.

(2) Definitions. As used in this subdivision:

(i) A person subject to the code includes a person acting as a knowing agent of a military unit or of a person subject to the code.

(ii) Interrogation includes any formal or informal questioning in which an incriminating response either is sought or is a reasonable consequence of such questioning.

(3) Warnings concerning the accusation, right to remain silent, and use of statements. A person subject to the State code who is required to give warnings under Military Law section 130.31 may not interrogate or request any statement from an accused or a person suspected of an offense without first:

(i) informing the accused or suspect of the nature of the accusation;

(ii) advising the accused or suspect that the accused or suspect has the right to remain silent; and

(iii) advising the accused or suspect that any statement made may be used as evidence against the accused or suspect in a trial by court-martial.

(4) Counsel rights and warnings.

(i) General rule. When evidence of a testimonial or communicative nature within the meaning of the Fifth Amendment to the Constitution of the United States either is sought or is a reasonable consequence of an interrogation, an accused or a person suspected of an offense is entitled to consult with counsel as provided by subparagraph (ii) of this paragraph, to have such counsel present at the interrogation, and to be warned of these rights prior to the interrogation if:

(a) the interrogation is conducted by a person subject to the code who is required to give warnings under Military Law section 130.31 and the accused or suspect is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom of action in any significant way; or

(b) the interrogation is conducted by a person subject to the code acting in a law enforcement capacity, or an agent of such a person, the interrogation is conducted subsequent to preferral of charges or the imposition of pretrial restraint under R.C.M. 304, and the interrogation concerns the offenses or matters that were the subject of the preferral of charges or were the cause of the imposition of pretrial restraint.

(ii) Counsel. When a person entitled to counsel under this subdivision requests counsel, a judge advocate who is a member of the Bar of this State shall be provided by the State of New York at no expense to the person and without regard to the person's indigency or lack thereof before the interrogation may proceed. In addition to counsel supplied by the State of New York, the person may retain civilian counsel at no expense to the State of New York. An accused or suspect does not have a right under this subdivision to have military counsel of his or her own selection.

(5) Notice to counsel. When a person subject to the code who is required to give warnings under paragraph (3) of this subdivision intends to question an accused or person suspected of an offense and knows or reasonably should know that counsel either has been appointed for or retained by the accused or suspect with respect to that offense, the counsel must be notified of the intended interrogation and given a reasonable time in which to attend before the interrogation may proceed.

(6) Exercise of rights. If a person chooses to exercise the privilege against self-incrimination or the right to counsel under this subdivision, questioning must cease immediately.

(7) Waiver.

(i) General rule. After receiving applicable warnings under this subdivision, a person may waive the rights described therein and in Mil. R. Evid. 301 and make a statement. The waiver must be made freely, knowingly, and intelligently. A written waiver is not required. The accused or suspect must acknowledge affirmatively that he or she understands the rights involved, affirmatively decline the right to counsel and affirmatively consent to making a statement.

(ii) Counsel. If the right to counsel in paragraph (4) of this subdivision is applicable and the accused or suspect does not decline affirmatively the right to counsel, the prosecution must demonstrate by a preponderance of the evidence that the individual waived the right to counsel. In addition, if the notice to counsel in paragraph (5) of this subdivision is applicable, a waiver of the right to counsel is not effective unless the prosecution demonstrates by a preponderance of the evidence that reasonable efforts to notify the counsel were unavailing or that the counsel did not attend an interrogation scheduled within a reasonable period of time after the required notice was given.

(8) Nonmilitary interrogations.

(i) General rule. When a person subject to the code is interrogated by an official or agent of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States, or any political subdivision of such a state, commonwealth, or possession, and such official or agent is not required to give warnings under paragraph (3) of this subdivision, the person's entitlement to rights warnings and the validity of any waiver of applicable rights shall be determined by the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar interrogations.

(ii) Foreign interrogations. Neither warnings under paragraph (3) or (4), nor notice to counsel under paragraph (5) of this subdivision are required during an interrogation conducted abroad by officials of a foreign government or their agents unless such interrogation is conducted, instigated, or participated in by military personnel or their agents or by those officials or agents listed in subparagraph (i) of this paragraph. A statement obtained during such an interrogation is involuntary within the meaning of Mil. R. Evid. 304(b)(3) if it is obtained through the use of coercion, unlawful influence, or unlawful inducement. An interrogation is not "participated in" by military personnel or their agents or by the officials or agents listed in subparagraph (i) of this paragraph merely because such a person was present at an interrogation conducted in a foreign nation by officials of a foreign government or their agents, or because such a person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign interrogation.

(f) Statements by one of several accused. When two or more accused are tried at the same trial, evidence of a statement made by one of them which is admissible only against him or her or only against some but not all of the accused may not be received in evidence unless all references inculpating an accused against whom the statement is inadmissible are deleted effectively or the maker of the statement is subject to cross-examination.

(g) Evidence obtained from unlawful searches and seizures.

(1) General rule. Evidence obtained as a result of an unlawful search or seizure made by a person acting in a governmental capacity is inadmissible against the accused if:

(i) Objection. The accused makes a timely motion to suppress or an objection to the evidence under this subdivision; and

(ii) Adequate interest. The accused had a reasonable expectation of privacy in the person, place or property searched; the accused had a legitimate interest in the property or evidence seized when challenging a seizure; or the accused would otherwise have grounds to object to the search or seizure under the Constitution of the United States as applied to members of the Armed Forces.

(2) Exceptions.

(i) Evidence that was obtained as a result of an unlawful search or seizure may be used to impeach by contradiction the in-court testimony of the accused.

(ii) Evidence that was obtained as a result of an unlawful search or seizure may be used when the evidence would have been obtained even if such unlawful search or seizure had not been made.

(iii) Evidence that was obtained as a result of an unlawful search or seizure may be used if:

(a) the search or seizure resulted from an authorization to search, seize or apprehend issued by an individual competent to issue the authorization under Mil. R. Evid. 315(d) or from a search warrant or arrest warrant issued by competent civilian authority;

(b) the individual issuing the authorization or warrant had a substantial basis for determining the existence of probable cause; and

(c) the officials seeking and executing the authorization or warrant reasonably and with good faith relied on the issuance of the authorization or warrant. Good faith shall be determined on an objective standard.

(3) Nature of search or seizure. A search or seizure is "unlawful" if it was conducted, instigated, or participated in by:

(i) Military personnel. Military personnel or their agents and was in Violation of the Constitution of the United States as applied to members of the Armed Forces, an Act of Congress applicable to trials by court-martial that requires exclusion of evidence obtained in violation thereof, or Mil. R. Evid. 312- 317.

(ii) Other officials. Other officials or agents of the United States of the District of Columbia, or of a State, Commonwealth, or possession of the United States or any political subdivision of such a State, Commonwealth, or possession and was in violation of the Constitution of the United States, or is unlawful under the principles of law generally applied in the trial of criminal cases in the United States district courts involving a similar search or seizure.

(iii) Officials of a foreign government. Officials of a foreign government or their agents and was obtained as a result of a foreign search or seizure which subjected the accused to gross and brutal maltreatment.

A search or seizure is not "participated in" merely because a person is present at a search or seizure conducted in a foreign nation by officials of a foreign government or their agents, or because a person acted as an interpreter or took steps to mitigate damage to property or physical harm during the foreign search or seizure.

(4) Motions to suppress and objections.

(i) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense all evidence seized from the person or property of the accused, or believed to be owned by the accused, that it intends to offer into evidence against the accused at trial.

(ii) Motion or objection.

(a) When evidence has been disclosed under subparagraph (i) of this paragraph, any motion to suppress or objection under this subdivision shall be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move or object constitutes a waiver of the motion or objection.

(b) If the prosecution intends to offer evidence seized from the person or property of the accused that was not disclosed prior to arraignment, the prosecution shall provide timely notice to the military judge and to counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interest of justice.

(c) If evidence is disclosed as derivative evidence under this paragraph prior to arraignment, any motion to suppress or objection under this subdivision shall be made in accordance with the procedure for challenging evidence under clause (a) of this subparagraph. If such evidence has not been so disclosed prior to arraignment, the requirements of clause (b) of this paragraph apply.

(iii) Specificity. The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the search or seizure, the military judge may enter any order required by the interests of justice, including authorization for the defense to make a general motion to suppress or a general objection.

(iv) Rulings. A motion to suppress or an objection to evidence made prior to plea shall be ruled upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at the trial of the general issue or until after findings, but no such determination shall be deferred if a party's right to appeal the ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, the military judge shall state essential findings of fact on the record.

(5) Burden of proof.

(i) In general. When an appropriate motion or objection has been made by the defense under paragraph (4) of this subdivision, the prosecution has the burden of proving by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure, that the evidence would have been obtained even if the unlawful search or seizure had not been made, or that the evidence was obtained by officials who reasonably and with good faith relied on the issuance of an authorization to search, seize, or apprehend or a search warrant or an arrest warrant.

(ii) Derivative evidence. Evidence that is challenged under this subdivision as derivative evidence may be admitted against the accused if the military judge finds by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure, that the evidence would have been obtained even if the unlawful search or seizure had not been made, or that the evidence was obtained by officials who reasonably and with good faith relied on the issuance of an authorization to search, seize or apprehend or a search warrant or an arrest warrant.

(iii) Specific motions or objections. When a specific motion or objection has been required under paragraph (4)(iii) of this subdivision, the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence.

(6) Defense evidence. The defense may present evidence relevant to the admissibility of evidence as to which there has been an appropriate motion or objection under this subdivision. An accused may testify for the limited purpose of contesting the legality of the search or seizure giving rise to the challenged evidence. Prior to the introduction of such testimony by the accused, the defense shall inform the military judge that the testimony is offered under this paragraph. When the accused testifies under this paragraph, the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.

(7) Scope of motions and objections challenging probable cause.

(i) Generally. If the defense challenges evidence seized pursuant to a search warrant or search authorization on the grounds that the warrant or authorization was not based upon probable cause, the evidence relevant to the motion is limited to evidence concerning the information actually presented to or otherwise known by the authorizing officer, except as provided in subparagraph (ii) of this paragraph.

(ii) False statements. If the defense makes a substantial preliminary showing that a government agent included a false statement knowingly and intentionally or with reckless disregard for the truth in the information presented to the authorizing officer, and if the allegedly false statement is necessary to the finding of probable cause, the defense, upon request, shall be entitled to a hearing. At the hearing, the defense has the burden of establishing by a preponderance of the evidence the allegation of falsity or reckless disregard for the truth.

If the defense meets its burden, the prosecution has the burden of proving by a preponderance of the evidence, with the false information set aside, that the remaining information presented to the authorizing officer is sufficient to establish probable cause. If the prosecution does not meet its burden, the objection or motion shall be granted unless the search is otherwise lawful under these rules.

(8) Objections to evidence seized unlawfully. If a defense motion or objection under this subdivision is sustained in whole or in part, the members may not be informed of that fact except insofar as the military judge must instruct the members to disregard evidence.

(9) Effect of guilty plea. Except as otherwise expressly provided in N.Y.R.C.M. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all issues under the Fourth Amendment to the Constitution of the United States and Mil. R. Evid. 311-317 with respect to that offense whether or not raised prior to plea.

(h) Body views and intrusions.

(1) General rule. Evidence obtained from body views and intrusions conducted in accordance with this subdivision is admissible at trial when relevant and not otherwise inadmissible under these rules.

(2) Visual examination of the body.

(i) Consensual. Visual examination of the unclothed body may be made with the consent of the individual subject to the inspection in accordance with Mil. R. Evid. 314(e).

(ii) Involuntary. An involuntary display of the unclothed body, including a visual examination of body cavities, may be required only if conducted in reasonable fashion and authorized under the following provisions of the Military Rules of Evidence: inspections and inventories under Mil. R. Evid. 313; searches under Mil. R. Evid. 314(b) and 314(c) if there is a reasonable suspicion that weapons, contraband, or evidence of crime is concealed on the body of the person to be searched; searches within jails and similar facilities under Mil. R. Evid. 314(j) if reasonably necessary to maintain the security of the institution or its personnel; searches incident to lawful apprehension under Mil. R. Evid. 314(g); emergency searches under Mil. R. Evid. 314(i); and probable cause searches under Mil. R. Evid. 315. An examination of the unclothed body under this subdivision should be conducted whenever practicable by a person of the same sex as that of the person being examined; provided, however, that failure to comply with this requirement does not make an examination an unlawful search within the meaning of Mil. R. Evid. 311.

(3) Intrusion into body cavities. A reasonable nonconsensual physical intrusion into the mouth, nose, and ears may be made when a visual examination of the body under paragraph (2) of this subdivision is permissible. Nonconsensual intrusions into other body cavities may be made:

(i) For purposes of seizure. When there is a clear indication that weapons, contraband, or other evidence of crime is present, to remove weapons, contraband, or evidence of crime discovered under paragraph (2) and subparagraph (ii) of this paragraph or under Mil. R. Evid. 316(d)(4)(c) if such intrusion is made in a reasonable fashion by a person with appropriate medical qualifications:

(ii) For purposes of search. To search for weapons, contraband, or evidence of crime if authorized by a search warrant or search authorization under Mil. R. Evid. 315 and conducted by a person with appropriate medical qualifications.

Notwithstanding this subdivision, a search under Mil. R. Evid. 314(h) may be made without a search warrant or authorization if such search is based on a reasonable suspicion that the individual is concealing weapons, contraband, or evidence of crime.

(4) Extraction of body fluids. Nonconsensual extraction of body fluids, including blood and urine, may be made from the body of an individual pursuant to a search warrant or a search authorization under Mil. R. Evid. 315. Nonconsensual extraction of body fluids may be made without such warrant or authorization, notwithstanding Mil. R. Evid. 315(g), only when there is clear indication that evidence of crime will be found and that there is reason to believe that the delay that would result if a warrant or authorization were sought could result in the destruction of the evidence. Involuntary extraction of body fluids under this subdivision must be done in a reasonable fashion by a person with appropriate medical qualifications.

(5) Other intrusive searches. Nonconsensual intrusive searches of the body made to locate or obtain weapons, contraband, or evidence of crime and not within the scope of paragraph (2) or (3) of this subdivision may be made only upon search warrant or search authorization under Mil. R. Evid. 315 and only if such search is conducted in a reasonable fashion by a person with appropriate medical qualifications and does not endanger the health of the person to be searched. Compelling a person to ingest substances for the purposes of locating the properly described above or to compel the bodily elimination of such property is a search within the meaning of this section. Notwithstanding this subdivision, a person who is neither a suspect nor an accused may not be compelled to submit to an intrusive search of the body for the sole purpose of obtaining evidence of crime.

(6) Intrusions for valid medical purposes. Nothing in this subdivision shall be deemed to interfere with the lawful authority of the Armed Forces to take whatever action may be necessary to preserve the health of a service member. Evidence or contraband obtained from an examination or intrusion conducted for a valid medical purpose may be seized and is not evidence obtained from an unlawful search or seizure within the meaning of Mil. R. Evid. 311.

(i) Inspections and inventories in the Armed Forces.

(1) General rule. Evidence obtained from inspections and inventories in the Armed Forces conducted in accordance with this subdivision is admissible at trial when relevant and not otherwise inadmissible under these rules.

(2) Inspections. An "inspection" is an examination of the whole or in part of a unit, organization, installation, vessel, aircraft, or vehicle, including an examination conducted at entrance and exit points, conducted as an incident of command the primary purpose of which is to determine and to ensure the security, military fitness, or good order and discipline of the unit, organization, installation, vessel, aircraft, or vehicle. An inspection may include but is not limited to an examination to determine and to ensure that any or all of the following requirements are met: that the command is properly equipped, functioning properly, maintaining proper standards or readiness, sea or airworthiness, sanitation and cleanliness, and that personnel are present, fit, and ready for duty. An inspection also includes an examination to locate and confiscate unlawful weapons and other contraband. An order to produce body fluids, such as urine, is permissible in accordance with this subdivision. An examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inspection within the meaning of this subdivision. If a purpose of an examination is to locate weapons or contraband, and if:

(i) the examination was directed immediately following a report of a specific offense in the unit, organization, installation, vessel, aircraft, or vehicle and was not previously scheduled;

(ii) specific individuals are selected for examination; or

(iii) persons examined are subjected to substantially different intrusions during the same examination, the prosecution must prove by clear and convincing evidence that the examination was an inspection within the meaning of this subdivision.

(2) Inspections shall be conducted in a reasonable fashion and shall comply with Mil R. Evid. 312, if applicable. Inspections may utilize any reasonable natural or technological aid and may be conducted with or without notice to those inspected. Unlawful weapons, contraband, or other evidence of crime located during an inspection may be seized.

(3) Inventories. Unlawful weapons, contraband, or other evidence of crime discovered in the process of an inventory, the primary purpose of which is administrative in nature, may be seized. Inventories shall be conducted in a reasonable fashion and shall comply with Mil. R. Evid. 312, if applicable. An examination made for the primary purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings is not an inventory within the meaning of this subdivision.

(j) Searches not requiring probable cause.

(1) General rule. Evidence obtained from reasonable searches not requiring probable cause conducted pursuant to this subdivision is admissible at trial when relevant and not otherwise inadmissible under these rules.

(2) Searches upon entry to or exit from United States installations, aircraft, and vessels abroad. In addition to the authority to conduct inspections under Mil. R. Evid. 313(b), a commander of a United States military installation, enclave, or aircraft on foreign soil, or in foreign or international airspace, or a United States vessel in foreign or international waters, may authorize appropriate personnel to search persons or the property of such persons upon entry to or exit from the installation, enclave, aircraft, or vessel to ensure the security, military fitness, or good order and discipline of the command. Such searches may not be conducted at a time or in a manner contrary to an express provision of a treaty or agreement to which the United States is a party. Failure to comply with a treaty or agreement, however, does not render a search unlawful within the meaning of Mil. R. Evid. 311. A search made for the primary purpose of obtaining evidence for use in a trial by court-martial or other disciplinary proceeding is not authorized by this paragraph.

(3) Searches of Federal or State government property. Federal or State government property may be searched under this subdivision unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein at the time of the search. Under normal circumstances, a person does not have a reasonable expectation of privacy in government property that is not issued for personal use. Wall or floor lockers in living quarters issued for the purpose of storing personal possessions normally are issued for personal use; but the determination as to whether a person has a reasonable expectation of privacy in government property issued for personal use depends on the facts and circumstances at the time of the search.

(4) Consent searches.

(i) General rule. Searches may be conducted of any person or property with lawful consent.

(ii) Who may consent. A person may consent to a search of his or her person or property, or both, unless control over such property has been given to another. A person may grant consent to search property when the person exercises control over that property.

(iii) Scope of consent. Consent may be limited in any way by the person granting consent, including limitations in terms of time, place, or property and may be withdrawn at any time.

(iv) Voluntariness. To be valid, consent must be given voluntarily. Voluntariness is a question to be determined from all the circumstances. Although a person's knowledge of the right to refuse to give consent is a factor to be considered in determining voluntariness, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Mere submission to the color of authority of personnel performing law enforcement duties or acquiescence in an announced or indicated purpose to search is not a voluntary consent.

(v) Burden of proof. Consent must be shown by clear and convincing evidence. The fact that a person was in custody while granting consent is a factor to be considered in determining the voluntariness of the consent, but it does not affect the burden of proof.

(5) Searches incident to a lawful stop.

(i) Stops. A person authorized to apprehend under R.C.M. 302(b) and others performing law enforcement duties may stop another person temporarily when the person making the stop has information or observes unusual conduct that leads him or her reasonably to conclude in light of his or her experience that criminal activity may be afoot. The purpose of the stop must be investigatory in nature.

(ii) Frisks. When a lawful stop is performed, the person stopped may be frisked for weapons when that person is reasonably believed to be armed and presently dangerous. Contraband or evidence located in the process of a lawful frisk may be seized.

(iii) Motor vehicles. When a person lawfully stopped is the driver or a passenger in a motor vehicle, the passenger compartment of the vehicle may be searched for weapons if the official who made the stop has a reasonable belief that the person stopped is dangerous and that the person stopped may gain immediate control of a weapon.

(6) Searches incident to a lawful apprehension.

(i) General rule. A person who has been lawfully apprehended may be searched.

(ii) Search for weapons and destructible evidence. A search may be conducted for weapons or destructible evidence in the area within the immediate control of a person who has been apprehended. The area within the person's "immediate control" is the area which the individual searching could reasonably believe that the person apprehended could reach with a sudden movement to obtain such property; provided, that the passenger compartment of an automobile, and containers within the passenger compartment may be searched as a contemporaneous incident of the apprehension of an occupant of the automobile, regardless whether the person apprehended has been removed from the vehicle.

(iii) Examination for other persons. When an apprehension takes place at a location in which other persons reasonably might be present who might interfere with the apprehension or endanger those apprehending, a reasonable examination may be made of the general area in which such other persons might be located.

(7) Searches within jails, confinement facilities, or similar facilities. Searches within jails, confinement facilities, or similar facilities may be authorized by persons with authority over the institution.

(8) Emergency searches to save life or for related purposes. In emergency circumstances to save life or for a related purpose, a search may be conducted of persons or property in a good faith effort to render immediate medical aid, to obtain information that will assist in the rendering of such aid, or to prevent immediate or ongoing personal injury.

(9) Searches of open fields or woodlands. A search of open fields or woodlands is not an unlawful search within the meaning of Mil. R. Evid. 311.

(10) Other searches. A search of a type not otherwise included in this subdivision and not requiring probable cause under Mil. R. Evid. 315 may be conducted when permissible under the Constitution of the United States and State of New York as applied to members of the Armed Forces and State Organized Militia.

(k) Probable cause searches.

(1) General rule. Evidence obtained from searches requiring probable cause conducted in accordance with this subdivision is admissible at trial when relevant and not otherwise inadmissible under these rules.

(2) Definitions. As used in these rules:

(i) An authorization to search is an express permission, written or oral, issued by competent military authority to search a person or an area for specified property or evidence or for a specific person and to seize such property, evidence, or person. It may contain an order directing subordinate personnel to conduct a search in a specified manner.

(ii) A search warrant is an express permission to search and seize issued by competent civilian authority.

(3) Scope of authorization. A search authorization may be issued under this subdivision for a search of:

(i) Persons. The person of anyone subject to Federal or State military law or the law of war wherever found.

(ii) Military property. Military property of the United States or the State of New York of nonappropriated fund activities of an Armed Force of the United States wherever located.

(iii) Persons and property within military control. Persons or property situated on or in a military installation, encampment, vessel, aircraft, vehicle, or any other location under military control, wherever located.

(iv) Nonmilitary property within a foreign country.

(a) Property owned, used, occupied by, or in the possession of an agency of the United States other than the Department of Defense when situated in a foreign country. A search of such property may not be conducted without the concurrence of an appropriate representative of the agency concerned. Failure to obtain such concurrence, however, does not render a search unlawful within the meaning of Mil. R. Evid. 311.

(b) Other property situated in a foreign country. If the United States is a party to a treaty or agreement that governs a search in a foreign country, the search shall be conducted in accordance with the treaty or agreement. If there is no treaty or agreement, concurrence should be obtained from an appropriate representative of the foreign country with respect to a search under this clause (b) of this subparagraph. Failure to obtain such concurrence or noncompliance with a treaty or agreement, however, does not render a search unlawful within the meaning of Mil. R. Evid. 311.

(4) Power to authorize. Authorization to search pursuant to this subdivision may be granted by an impartial individual in the following categories:

(i) Commander. A commander or other person serving in a position designated by the Chief of Staff to the Governor as either a person analogous to an officer in charge or a position of command, who has control over the place where the property or person to be searched is situated or found, or, if that place is not under military control, having control over persons subject to Federal or State military law or the law of war.

(ii) Military judge.

An otherwise impartial authorizing official does not lose that character merely because he or she is present at the scene of a search or is otherwise readily available to persons who may seek the issuance of a search authorization; nor does such an official lose impartial character merely because the official previously and impartially authorized investigative activities when such previous authorization is similar in intent or function to a pretrial authorization made by the United States district courts.

(5) Power to search. Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, when in the execution of guard or police duties, any criminal investigator, member of the Air Force security police, military police, or shore patrol, or person designated by proper authority to perform guard or police duties, or any agent of any such person, may conduct or authorize a search when a search authorization has been granted under this subdivision or a search would otherwise be proper under paragraph (7) of this subdivision.

(6) Basis for search authorizations.

(i) Probable cause requirement. A search authorization issued under this subdivision must be based upon probable cause.

(ii) Probable cause determination. Probable cause to search exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched. A search authorization may be based upon hearsay evidence in whole or in part. A determination of probable cause under this subdivision shall be based upon any or all of the following:

(a) written statements communicated to the authorizing officer;

(b) oral statements communicated to the authorizing official in person, via telephone, or by other appropriate means of communication; or

(c) such information as may be known by the authorizing official that would not preclude the officer from acting in an impartial fashion.

The Chief of Staff to the Governor may prescribe additional requirements.

(7) Exigencies. A search warrant or search authorization is not required under this subdivision for a search based on probable cause when:

(i) Insufficient time. There is reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the removal, destruction, or concealment of the property or evidence sought.

(ii) Lack of communications. There is a reasonable military operational necessity that is reasonably believed to prohibit or prevent communication with a person empowered to grant a search warrant or authorization and there is a reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the removal, destruction, or concealment of the property or evidence sought.

(iii) Search of operable vehicle. An operable vehicle is to be searched, except in the circumstances where a search warrant or authorization is required by the Constitution of the United States or the State of New York, this Chapter, or these rules.

(iv) Not required by the Constitution. A search warrant or authorization is not otherwise required by the Constitution of the United States or the State of New York as applied to members of the Armed Forces or State organized militia.

For purpose of this rule, a vehicle is "operable" unless a reasonable person would have known at the time of search that the vehicle was not functional for purposes of transportation.

(8) Execution.

(i) Notice. If the person whose property is to be searched is present during a search conducted pursuant to a search authorization granted under this subdivision, the person conducting the search should when possible notify him or her of the act of authorization and the general substance of the authorization. Such notice may be made prior to or contemporaneously with the search. Failure to provide such notice does not make a search unlawful within the meaning of Mil. R. Evid. 311.

(ii) Inventory. An inventory of the property seized shall be made at the time of a seizure under this subdivision or as soon as practicable thereafter. At an appropriate time, a copy of the inventory shall be given to a person from whose possession or premises the property was taken. Failure to make an inventory, furnish a copy thereof, or otherwise comply with this subparagraph does not render a search or seizure unlawful within the meaning of Mil. R. Evid. 311.

(iii) Foreign searches. Exeucution of a search authorization outside the United States and within the jurisdiction of a foreign nation should be in conformity with existing agreements between the United States and the foreign nation. Noncompliance with such an agreement does not make an otherwise lawful search unlawful.

(iv) Search warrants. Any civilian or military criminal investigator authorized to request search warrants pursuant to applicable law or regulation is authorized to serve and execute search warrants. The execution of a search warrant affects admissibility only insofar as exclusion of evidence is required by the Constitution of the United States, an applicable Act of Congress, or the Constitution of the State of New York.

(l) Seizures.

(1) General rule. Evidence obtained from seizures conducted in accordance with this subdivision is admissible at trial if the evidence was not obtained as a result of an unlawful search and if the evidence is relevant and not otherwise inadmissible under these rules.

(2) Seizure of property. Probable cause to seize property or evidence exists when there is a reasonable belief that the property or evidence is an unlawful weapon, contraband, evidence of crime, or might be used to resist apprehension or to escape.

(3) Apprehension. Apprehension is governed by N.Y.R.C.M. 302.

(4) Seizure of property or evidence.

(i) Abandoned property. Abandoned property may be seized without probable cause and without a search warrant or search authorization. Such seizure may be made by any person.

(ii) Consent. Property or evidence may be seized with consent consistent with the requirements applicable to consensual searches under Mil. R. Evid. 314.

(iii) Federal or State government property. Government property may be seized without probable cause and without a search warrant or search authorization by any person listed in paragraph (5) of this subdivision, unless the person to whom the property is issued or assigned has a reasonable expectation of privacy therein, as provided in Mil. R. Evid. 314(d), at the time of the seizure.

(iv) Other property. Property or evidence not included in subparagraphs (i)- (iii) of this paragraph may be seized for use in evidence by any person listed in paragraph (5) of this subdivision if:

(a) Authorization. The person is authorized to seize the property or evidence by a search warrant or a search authorization under Mil. R. Evid. 315.

(b) Exigent circumstances. The person has probable cause to seize the property or evidence and under Mil. R. Evid. 315(g) a search warrant or search authorization is not required.

(c) Plain view. The person while in the course of otherwise lawful activity observes in a reasonable fashion property or evidence that the person has probable cause to seize.

(v) Temporary detention. Nothing in this subdivision shall prohibit temporary detention of property on less than probable cause when authorized under the Constitution of the United States and the State of New York.

(5) Power to seize. Any commissioned officer, warrant officer, petty officer, non-commissioned officer, and, when in the execution of guard or police duties, any criminal investigator, member of the Air Force security police, military police, or shore patrol, or individual designated by proper authority to perform guard or police duties, or any agent or any such person, may seize property pursuant to this subdivision.

(6) Other seizures. A seizure of a type not otherwise included in this subdivision may be made when permissible under the Constitution of the United States and State of New York as applied to members of the Armed Forces or State organized militia.

(m) Interception of wire and oral communications.

(1) General rule. Wire or oral communications constitute evidence obtained as a result of an unlawful search or seizure within the meaning of Mil. R. Evid. 311 when such evidence may be excluded under the Fourth Amendment to the Constitution of the United States as applied to members of the Armed Forces or if such evidence must be excluded under a statute applicable to members of the Armed Forces or the Constitution of the State of New York as applied to members of the State organized militia.

(n) Eyewitness identification.

(1) General rule.

(i) Admissibility. Testimony concerning a relevant out of court identification by any person is admissible, subject to an appropriate objection under this subdivision, if such testimony is otherwise admissible under these rules. The witness making the identification and any person who has observed the previous identification may testify concerning it. When in testimony a witness identifies the accused as being, or not being, a participant in an offense or makes any other relevant identification concerning a person in the courtroom, evidence that on a previous occasion the witness made a similar identification is admissible to corroborate the witness' testimony as to identity even if the credibility or the witness has not been attacked directly, subject to appropriate objection under this subdivision.

(ii) Exclusionary rule. An identification of the accused as being a participant in an offense, whether such identification is made at the trial or otherwise, is inadmissible against the accused if:

(a) the accused makes a timely motion to suppress or an objection to the evidence under this subdivision and if the identification is the result of an unlawful lineup or other unlawful identification process conducted by the United States or other domestic authorities; or

(b) exclusion of the evidence is required by the due process clause of the Fifth Amendment to the Constitution of the United States as applied to members of the Armed Forces or the New York State Constitution. Evidence other than an identification of the accused that is obtained as a result of the unlawful lineup or unlawful identification process is inadmissible against the accused if the accused makes a timely motion to suppress or an objection to the evidence under this subdivision and if exclusion of the evidence is required under the Constitution of the United States as applied to members of the Armed Forces.

(2) Definition of unlawful.

(i) Lineups and other identification processes. A lineup or other identification process is "unlawful" if the identification is unreliable. An identification is unreliable if the lineup or other identification process, under the circumstances, is so suggestive as to create a substantial likelihood of misidentification.

(ii) Lineups: right to counsel. A lineup is "unlawful" if it is conducted in violation of the following rights to counsel:

(a) Military lineups. An accused or suspect is entitled to counsel if, after preferral of charges or imposition of pretrial restraint under R.C.M. 304 for the offense under investigation, the accused is subjected by persons subject to the State code or their agents to a lineup for the purpose of identification. When a person entitled to counsel under this subdivision requests counsel, a judge advocate who is a member of the Bar of this State shall be provided by the State of New York at no expense to the accused or suspect and without regard to indigency or lack thereof before the lineup may proceed. The accused or suspect may waive the rights provided in this subdivision if the waiver is freely, knowingly, and intelligently made.

(b) Nonmilitary lineups. When a person subject to the code is subjected to a lineup for purposes of identification by an official or agent of the United States, of the District of Columbia, or of a State, Commonwealth, or possession of the United States, or any political subdivision of such a State, Commonwealth, or possession, and the provisions of clause (a) of this subparagraph do not apply, the person's entitlement to counsel and the validity of any waiver of applicable rights shall be determined by the principles of law generally recognized in the trial of criminal cases in the United States district courts involving similar lineups; provided that such principles are not contrary to the Constitution of the State of New York.

(3) Motions to supress and objections.

(i) Disclosure. Prior to arraignment, the prosecution shall disclose to the defense all evidence of a prior identification of the accused as a lineup or other identification process that it intends to offer into evidence against the accused at trial.

(ii) Motion or objection.

(a) When such evidence has been disclosed, any motion to suppress or objection under this subdivision shall be made by the defense prior to submission of a plea. In the absence of such motion or objection, the defense may not raise the issue at a later time except as permitted by the military judge for good cause shown. Failure to so move constitutes a waiver of the motion or objection.

(b) If the prosecution intends to offer such evidence and the evidence was not disclosed prior to arraignment, the prosecution shall provide timely notice to the military judge and counsel for the accused. The defense may enter an objection at that time and the military judge may make such orders as are required in the interests of justice.

(iii) Specificity. The military judge may require the defense to specify the grounds upon which the defense moves to suppress or object to evidence. If defense counsel, despite the exercise of due diligence, has been unable to interview adequately those persons involved in the lineup or other identification process, the military judge may enter any order required by the interests of justice, including authorization for the defense to make a general motion to suppress or a general objection.

(4) Burden of proof. When a specific motion or objection has been required under subparagraph (3)(iii) of this subdivision, the burden on the prosecution extends only to the grounds upon which the defense moved to suppress or object to the evidence. When an appropriate objection under this subdivision has been made by the defense, the issue shall be determined by the military judge as follows:

(i) Right to counsel. When an objection raises the right to presence of counsel under this subdivision, the prosecution must prove by a preponderance of the evidence that counsel was present at the lineup or that the accused, having been advised of the right to the presence of counsel, voluntarily and intelligently waived that right prior to the lineup. When the military judge determines that an identification is the result of a lineup conducted without the presence of counsel or an appropriate waiver, any later identification by one present at such unlawful lineup is also a result thereof unless the military judge determines that the contrary has been shown by clear and convincing evidence.

(ii) Unreliable identification. When an objection raises the issue of an unreliable identification, the prosecution must prove by a preponderance of the evidence that the identification was reliable under the circumstances; provided, however, that if the military judge finds the evidence of identification inadmissible under this paragraph, a later identification may be admitted if the prosecution proves by clear and convincing evidence that the later identification is not the result of the inadmissible identification.

(5) Defense evidence. The defense may present evidence relevant to the issue of the admissibility of evidence as to which there has been an appropriate motion or objection under this subdivision. An accused may testify for the limited purpose of contesting the legality of the lineup or identification process giving rise to the challenged evidence. Prior to the introduction of such testimony by the accused, the defense shall inform the military judge that the testimony is offered under this paragraph. When the accused testifies under this paragraph, the accused may be cross-examined only as to the matter on which he or she testifies. Nothing said by the accused on either direct or cross-examination may be used against the accused for any purpose other than in a prosecution for perjury, false swearing, or the making of a false official statement.

(6) Rulings. A motion to suppress or an objection to evidence made prior to plea under this subdivision shall be ruled upon prior to plea unless the military judge, for good cause, orders that it be deferred for determination at the trial of the general issue or until after findings, but no such determination shall be deferred if a party's right to appeal the ruling is affected adversely. Where factual issues are involved in ruling upon such motion or objection, the military judge shall state his or her essential findings of fact on the record.

(7) Effect of guilty pleas. Except as otherwise expressly provided in N.Y.R.C.M. 910(a)(2), a plea of guilty to an offense that results in a finding of guilty waives all issues under this subdivision with respect to that offense whether or not raised prior to the plea.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 517.3