NY State Senate Bill 2009-S2117

Senate Bill S2117

2009-2010 Legislative Session

Authorizes prosecuting agency to move to have identity of undercover public officers and employees protected while testifying in court

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to codes
Feb 11, 2009	referred to codes

co-Sponsors

2009-S2117 (ACTIVE) - Details

See Assembly Version of this Bill:: A3512
Current Committee:: Senate Codes
Law Section:: Civil Rights Law
Laws Affected:: Amd §50-a, Civ Rts L; amd §60.15, CP L; add §343.6, Fam Ct Act; add §4516-a, CPLR
Versions Introduced in Other Legislative Sessions:: 2011-2012: S1751, A4872
2013-2014: S2174, A2139
2015-2016: S1467, A2796
2017-2018: S224, A4096
2019-2020: A851

2009-S2117 (ACTIVE) - Summary

Authorizes the people in a criminal proceeding, the presentment agency in a juvenile delinquency proceeding and a governmental agency or public employer in a civil enforcement action to move to protect the identity, address and any other identifying information of any witness who is an undercover public officer or employee when the disclosure of the identity of such officer or employee would endanger the officer's life or employee's or compromise his or her continued effectiveness.

2009-S2117 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2117

 TITLE OF BILL :
An act to amend the civil rights law, the criminal procedure law, the
family court act and the civil practice law and rules, in relation to
protecting the identity of undercover public officers and employees


 PURPOSE :
This bill would amend Civil Rights Law §50-a to include within the
confidentiality provisions for police personnel records those records
that include the identity of undercover police officers. The bill
would also amend Criminal Procedure Law §60.l6 to create a procedure
whereby a District Attorney may request that an undercover officer's
identity be protected. There would be a rebuttable presumption that an
undercover police officer would be endangered, or his or her
effectiveness compromised, by public disclosure of his or her
identity. Therefore, unless the presumption is rebutted, the court
would be required to direct the witness to testify under a pseudonym
such as a shield number. The bill allows the District Attorney to ask
the court for additional measures to protect the police officer's
identity if necessary. These requests would continue to be governed by
standards articulated by the United States Supreme Court in WALLER V.
GEORGIA, 467 U.S. 39,48 (1984). In addition, the bill would allow a
defendant to require the court to instruct the jury that no inference
unfavorable to the defendant may be drawn because the undercover

police officer is testifying under a pseudonym or form of any other
similar protective measure.

 JUSTIFICATION :
Undercover police officers perform their duty under extraordinarily
dangerous circumstances. These brave officers, male and female, of
various ethnic and racial backgrounds, all of whom volunteer for this
assignment, put their safety at risk to make the City and State of New
York safer. The safety of their loved ones is also sometimes at risk
as a corollary to their dangerous work.  Tragically, too many have
been murdered, shot, stabbed and beaten by narcotics dealers. The
distribution and sale of illicit drugs permeate many of New York
City's neighborhoods. The astronomical profits of the illegal
narcotics trade motivate narcotics dealers to take extreme risks and
zealously protect their operation at all costs. Dealers and
distributors are often individuals who do not hesitate to resort to
violence. They commit violent crime and attract violence to any area
in which they operate. To guard themselves from the attack of rival
drug gangs, prevent the loss of their money and property and avoid the
detection of law enforcement, drug gangs set up elaborate systems of
protection that include the use of people and technology. A drug sales
"team" may include street managers, heavily armed enforcers, lookouts
and at the lower levels, steerers. Sophisticated dealers protect their
operation with video surveillance and other technology. Because the
world of drug dealing has changed and in fact has in large measure
moved indoors, utilizing high levels of technological protection,
there is an ever greater need for undercover operations in order to
conduct even the most simple "buy and bust".  Given the realities of
today's information technology and the easy access to it, having a
person's name may yield his or her residence address and the
directions to it. This bill would add protection for undercover
officers to the law by making the identity of an undercover officer a
"personnel record" for purposes of Civil Rights Law §50-a, which
requires a court order for release. In addition, it would create a
rebuttable presumption that an undercover· police officer would be
endangered, or his or her effectiveness compromised, by public
disclosure of his or her name. Therefore, unless the presumption is
rebutted, the court would be required to direct that the witness
testify under a pseudonym such as a shield number. This bill would
help protect undercover officers' identities and thus their safety. In
addition, upon a request from the defendant, the court would be
required to instruct the jury that no negative inference could be
drawn because the undercover police officer testified under a
pseudonym or from any other similar protective measure. Indeed, if
undercover police officers routinely testify under pseudonyms, it
would be easier for a jury not to draw any adverse inferences against
the individual defendants.

 LEGISLATIVE HISTORY :
S.5335-A of 2007-08. Referred to Codes
S.1870-A-of 2005-06. Passed Senate.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
Immediately.

2009-S2117 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2117

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 11, 2009
                               ___________

Introduced  by  Sens. GOLDEN, MORAHAN -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes

AN ACT to amend the civil rights law, the criminal  procedure  law,  the
  family  court act and the civil practice law and rules, in relation to
  protecting the identity of undercover public officers and employees

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 1 of section 50-a of the civil rights law, as
amended by chapter 137 of the laws  of  2002,  is  amended  to  read  as
follows:
  1.  All personnel records, used to evaluate performance toward contin-
ued employment or promotion, under the control of any police  agency  or
department  of  the state or any political subdivision thereof including
authorities or agencies maintaining police forces of individuals defined
as police officers in section 1.20 of the  criminal  procedure  law  and
such  personnel records under the control of a sheriff's department or a
department of correction of individuals employed as correction  officers
and  such  personnel records under the control of a paid fire department
or    force    of    individuals    employed    as    firefighters    or
firefighter/paramedics  and  such personnel records under the control of
the division of parole for individuals defined as peace officers  pursu-
ant  to  subdivisions twenty-three and twenty-three-a of section 2.10 of
the criminal procedure law shall  be  considered  confidential  and  not
subject  to  inspection or review without the express written consent of
such  police  officer,  firefighter,  firefighter/paramedic,  correction
officer  or peace officer within the division of parole except as may be
mandated by lawful court order. FOR PURPOSES OF THIS SECTION,  PERSONNEL
RECORDS SHALL INCLUDE ANY REPORT, PAPER, PICTURE, PHOTOGRAPH, COURT FILE
OR OTHER DOCUMENT, IN THE CUSTODY OR POSSESSION OF ANY PUBLIC OFFICER OR
EMPLOYEE,  WHICH TENDS TO IDENTIFY BY NAME OR IMAGE AN INDIVIDUAL WHO IS
PERFORMING OR HAS PERFORMED OFFICIAL DUTIES IN A  COVERT  OR  UNDERCOVER

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05712-01-9

S. 2117                             2

CAPACITY  AND  WHOSE  PERSONNEL  RECORDS  ARE  OTHERWISE COVERED BY THIS
SUBDIVISION.
  S  2. Section 60.15 of the criminal procedure law is amended by adding
a new subdivision 3 to read as follows:
  3. WHEN A PUBLIC OFFICER OR EMPLOYEE, INCLUDING BUT NOT LIMITED  TO  A
POLICE  OFFICER AS DEFINED IN SECTION 1.20 OF THIS PART OR A PEACE OFFI-
CER AS DEFINED IN SECTION 2.10  OF  THIS  PART,  IS  PERFORMING  OR  HAS
PERFORMED  OFFICIAL  DUTIES  IN  A  COVERT OR UNDERCOVER CAPACITY AND IS
CALLED AS A WITNESS IN A CRIMINAL PROCEEDING:
  (A) THE PEOPLE MAY MAKE A REQUEST OF THE COURT THAT  THE  IDENTITY  OF
THE  WITNESS BE PROTECTED. THERE SHALL BE A PRESUMPTION THAT THE WITNESS
WOULD BE ENDANGERED OR HIS OR HER EFFECTIVENESS COMPROMISED  IF  HIS  OR
HER  IDENTITY  IS  DISCLOSED  AND  THAT THEREFORE THE PEOPLE HAVE MADE A
SHOWING THAT THE WITNESS SHOULD BE EXCUSED FROM  PROVIDING  HIS  OR  HER
IDENTITY.  THE  DEFENDANT  MAY  THEREUPON  SEEK TO REBUT THE PRESUMPTION
AND/OR DEMONSTRATE THE MATERIALITY OF  THE  WITNESS'S  IDENTITY  TO  THE
ISSUE  OF  GUILT OR INNOCENCE. IF THE PRESUMPTION HAS NOT BEEN REBUTTED,
THE COURT SHALL THEN BALANCE THE INTERESTS AND IF IT DETERMINES THAT THE
NEED OF THE PUBLIC OFFICER OR EMPLOYEE WITNESS FOR ANONYMITY EXCEEDS THE
DEFENDANT'S NEED TO  OBTAIN  THE  WITNESS'S  IDENTITY  FOR  PURPOSES  OF
CROSS-EXAMINATION, THE COURT SHALL DIRECT THAT THE WITNESS TESTIFY UNDER
A PSEUDONYM SUCH AS A SHIELD NUMBER.
  (B)  IF REQUESTED BY THE PEOPLE, THE COURT SHALL TAKE SUCH OTHER MEAS-
URES AS ARE NECESSARY, CONSISTENT WITH RIGHTS OF THE DEFENDANT, TO SAFE-
GUARD THE IDENTITY OF THE WITNESS.
  (C) UPON REQUEST OF THE DEFENDANT DURING A JURY TRIAL, THE COURT SHALL
INSTRUCT THE JURY THAT THE USE OF A PSEUDONYM OR  ANY  OTHER  ADDITIONAL
MEASURE  TO  PROTECT  THE  IDENTITY  OF THE WITNESS IS NOT A FACTOR FROM
WHICH AN INFERENCE UNFAVORABLE TO THE DEFENDANT MAY BE DRAWN.
  S 3. The family court act is amended by adding a new section 343.6  to
read as follows:
  S  343.6.  RULES  OF  EVIDENCE; TESTIMONY GIVEN BY A PUBLIC OFFICER OR
EMPLOYEE. WHEN A PUBLIC OFFICER OR EMPLOYEE, INCLUDING BUT  NOT  LIMITED
TO A POLICE OFFICER AS DEFINED IN SECTION 1.20 OF THE CRIMINAL PROCEDURE
LAW  OR  A  PEACE  OFFICER  AS  DEFINED  IN SECTION 2.10 OF SUCH LAW, IS
PERFORMING OR HAS PERFORMED OFFICIAL DUTIES IN A  COVERT  OR  UNDERCOVER
CAPACITY AND IS CALLED AS A WITNESS IN A DELINQUENCY PROCEEDING:
  1.  THE  PRESENTMENT  AGENCY  MAY MAKE A REQUEST OF THE COURT THAT THE
IDENTITY OF THE WITNESS BE PROTECTED. THERE SHALL BE A PRESUMPTION  THAT
THE  WITNESS WOULD BE ENDANGERED OR HIS OR HER EFFECTIVENESS COMPROMISED
IF HIS OR HER IDENTITY IS DISCLOSED AND THAT THEREFORE  THE  PRESENTMENT
AGENCY  HAS  MADE  A  SHOWING  THAT  THE  WITNESS SHOULD BE EXCUSED FROM
PROVIDING HIS OR HER IDENTITY.   THE RESPONDENT MAY  THEREUPON  SEEK  TO
REBUT   THE  PRESUMPTION  AND/OR  DEMONSTRATE  THE  MATERIALITY  OF  THE
WITNESS'S IDENTITY TO THE ISSUE OF GUILT OR INNOCENCE. IF  THE  PRESUMP-
TION  HAS  NOT BEEN REBUTTED, THE COURT SHALL THEN BALANCE THE INTERESTS
AND IF IT DETERMINES THAT THE NEED OF THE  PUBLIC  OFFICER  OR  EMPLOYEE
WITNESS  FOR  ANONYMITY  EXCEEDS  THE  RESPONDENT'S  NEED  TO OBTAIN THE
WITNESS'S IDENTITY FOR PURPOSES OF CROSS-EXAMINATION,  THE  COURT  SHALL
DIRECT  THAT  THE  WITNESS  TESTIFY  UNDER  A PSEUDONYM SUCH AS A SHIELD
NUMBER.
  2. IF REQUESTED BY THE PRESENTMENT AGENCY, THE COURT SHALL  TAKE  SUCH
OTHER  MEASURES AS ARE NECESSARY, CONSISTENT WITH RIGHTS OF THE RESPOND-
ENT, TO SAFEGUARD THE IDENTITY OF THE WITNESS.
  S 4. The civil practice law and rules  is  amended  by  adding  a  new
section 4516-a to read as follows:

S. 2117                             3

  S  4516-A. TESTIMONY BY CERTAIN PUBLIC OFFICERS AND EMPLOYEES.  WHEN A
PUBLIC OFFICER OR EMPLOYEE, INCLUDING BUT NOT LIMITED TO A POLICE  OFFI-
CER  AS DEFINED IN SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW OR A PEACE
OFFICER AS DEFINED IN SECTION 2.10 OF SUCH LAW,  IS  PERFORMING  OR  HAS
PERFORMED  OFFICIAL  DUTIES  IN  A  COVERT OR UNDERCOVER CAPACITY AND IS
CALLED AS A WITNESS IN A CIVIL ENFORCEMENT ACTION BROUGHT BY  A  GOVERN-
MENTAL ENTITY:
  (A) SUCH GOVERNMENTAL ENTITY OR THE PUBLIC EMPLOYER OF THE WITNESS MAY
MAKE  A  REQUEST  OF  THE  COURT  THAT  THE  IDENTITY  OF THE WITNESS BE
PROTECTED. THERE SHALL BE A PRESUMPTION THAT THE WITNESS WOULD BE ENDAN-
GERED OR HIS OR HER EFFECTIVENESS COMPROMISED IF HIS OR HER IDENTITY  IS
DISCLOSED  AND  THAT  THEREFORE THE GOVERNMENT ENTITY HAS MADE A SHOWING
THAT THE WITNESS SHOULD BE EXCUSED FROM PROVIDING HIS OR  HER  IDENTITY.
THE RESPONDENT MAY THEREUPON SEEK TO REBUT THE PRESUMPTION AND/OR DEMON-
STRATE  THE  MATERIALITY OF THE WITNESS'S IDENTITY TO THE ISSUE OF GUILT
OR INNOCENCE. IF THE PRESUMPTION HAS NOT BEEN REBUTTED, THE COURT  SHALL
THEN  BALANCE  THE  INTERESTS  AND IF IT DETERMINES THAT THE NEED OF THE
PUBLIC OFFICER OR EMPLOYEE WITNESS FOR ANONYMITY  EXCEEDS  THE  RESPOND-
ENT'S NEED TO OBTAIN THE WITNESS'S IDENTIFY FOR PURPOSES OF CROSS-EXAMI-
NATION,  THE COURT SHALL DIRECT THAT THE WITNESS TESTIFY UNDER A PSEUDO-
NYM SUCH AS A SHIELD NUMBER.
  (B) IF REQUESTED BY SUCH GOVERNMENTAL ENTITY OR SUCH PUBLIC  EMPLOYER,
THE  COURT  SHALL  TAKE SUCH OTHER MEASURES AS ARE NECESSARY, CONSISTENT
WITH RIGHTS OF THE ADVERSE PARTY,  TO  SAFEGUARD  THE  IDENTITY  OF  THE
WITNESS.
  (C)  DURING  A  JURY TRIAL, UPON REQUEST BY THE PARTY AGAINST WHOM THE
ACTION IS BROUGHT, THE COURT SHALL INSTRUCT THE JURY THAT THE USE  OF  A
PSEUDONYM OR ANY OTHER ADDITIONAL MEASURE TO PROTECT THE IDENTITY OF THE
WITNESS  IS  NOT  A  FACTOR  FROM WHICH AN INFERENCE UNFAVORABLE TO SUCH
PARTY MAY BE DRAWN.
  (D) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PROHIBIT  OR  OTHER-
WISE  AFFECT APPROPRIATE MEASURES TO SAFEGUARD THE IDENTITY OF A WITNESS
THAT MAY BE TAKEN IN ANY CIVIL ACTION THAT IS NOT WITHIN  THE  SCOPE  OF
THIS SECTION.
  S 5. Severability. If any clause, sentence, paragraph, section or part
of  this act shall be adjudged by any court of competent jurisdiction to
be invalid, the judgment shall not  affect,  impair  or  invalidate  the
remainder thereof, but shall be confined in its operation to the clause,
sentence,  paragraph,  section  of part thereof directly involved in the
controversy in which the judgment shall have been rendered.
  S 6. This act shall take effect immediately.

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Senate Bill S2117

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Martin J. Golden