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

                                  7873

                            I N  S E N A T E

                              May 19, 2010
                               ___________

Introduced  by  Sen.  DUANE  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the criminal procedure law,  in  relation  to  informant
  testimony

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

  Section 1. The criminal procedure law  is  amended  by  adding  a  new
section 60.77 to read as follows:
S  60.77  RULES  OF  EVIDENCE:  TESTIMONY  OF AN INFORMANT WHO IS NOT AN
            ACCOMPLICE.
  1. DEFINITION. AS USED IN THIS SECTION, AN "INFORMANT" IS A PERSON WHO
IS NOT AN ACCOMPLICE AND WHO AGREES TO PROVIDE TESTIMONY OR EVIDENCE  ON
AN  UNDERSTANDING THAT HE OR SHE WILL RECEIVE A FAVORABLE DISPOSITION OR
RESOLUTION OF PENDING OR POSSIBLE CRIMINAL  CHARGES,  FINANCIAL  BENEFIT
NOT ASSOCIATED WITH USUAL WITNESS APPEARANCE, OR OTHER SUBSTANTIAL BENE-
FIT FOR HIMSELF OR HERSELF OR ANOTHER PERSON.
  2. THE TESTIMONY OF AN INFORMANT AGAINST THE DEFENDANT MAY BE ADMITTED
INTO  EVIDENCE  ONLY IF THE PROSECUTION PRESENTS EVIDENCE INDEPENDENT OF
THE INFORMANT'S TESTIMONY THAT TENDS TO CONNECT  THE  DEFENDANT  TO  THE
COMMISSION OF THE OFFENSE.
  3.  (A)  UNLESS  EARLIER DISCLOSURE IS OTHERWISE REQUIRED BY LAW, AT A
REASONABLE TIME PRIOR TO TRIAL OR ENTRY OF A  GUILTY  PLEA,  THE  PROSE-
CUTION  SHALL  DISCLOSE  TO  THE  COURT  AND THE DEFENSE THE EVIDENCE IT
CLAIMS TO BE CORROBORATIVE OF THE  INFORMANT'S  INFORMATION  TENDING  TO
CONNECT  THE  DEFENDANT  WITH THE OFFENSE. AT A REASONABLE TIME PRIOR TO
TRIAL THE COURT SHALL DETERMINE WHETHER, WITHOUT THE INFORMANT'S  TESTI-
MONY,  THE PROSECUTOR'S PROPOSED EVIDENCE TENDS TO CONNECT THE DEFENDANT
TO THE OFFENSE.  IF  THE  COURT  FINDS  THAT  THE  PROPOSED  INDEPENDENT
EVIDENCE  TENDS  TO  CONNECT THE DEFENDANT TO THE OFFENSE, THE INFORMANT
SHALL BE PERMITTED TO GIVE TESTIMONY AT  A  TRIAL.  IF  THE  PROSECUTION
FAILS  TO MAKE THE REQUIRED SHOWING, THE INFORMANT WILL NOT BE PERMITTED
TO TESTIFY CONCERNING THE DEFENDANT'S ROLE IN THE OFFENSE.
  (B) AT A REASONABLE TIME PRIOR TO TRIAL OR ENTRY OF A GUILTY PLEA, THE
PROSECUTOR SHALL INFORM THE DEFENSE OF ANY PROMISE, BENEFIT, OR  FAVORA-

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

                                                           LBD17111-01-0

S. 7873                             2

BLE   DISPOSITION  GIVEN  TO  THE  INFORMANT  OR  SOMEONE  ELSE  AT  THE
INFORMANT'S REQUEST AND DELIVER TO THE DEFENSE ANY DOCUMENT,  ELECTRONIC
RECORD, NOTES OR OTHER RECORD OF THE PROMISE; THE CIRCUMSTANCES IN WHICH
THE  INFORMANT  REVEALED  THE  INFORMATION; WHETHER THE INFORMANT AT ANY
TIME RETRACTED THE INFORMATION AND THE CIRCUMSTANCES OF SUCH RETRACTION;
THE INFORMANT'S  RECORD  OF  CRIMINAL  CONVICTIONS  AND  PRIOR  CRIMINAL
CONDUCT; OTHER MATTERS IN WHICH THE INFORMANT HAS GIVEN AID TO OR TESTI-
FIED  FOR  THE  PROSECUTION;  AND  SUCH OTHER INFORMATION AS THE DEFENSE
REQUESTS AND THE COURT DEEMS APPROPRIATE UNDER THE CIRCUMSTANCES.
  (C) UPON MOTION OF THE PROSECUTOR AND ON A SHOWING THAT DISCLOSURE  OF
THE   INFORMANT'S  IDENTITY  WOULD  ENDANGER  THE  INFORMANT,  THAT  THE
INFORMANT'S SERVICES TO THE STATE WOULD  BE  UNDERMINED,  OR  FOR  OTHER
REASON  FOUND COMPELLING BY THE COURT, THE IDENTITY OF THE INFORMANT MAY
BE REDACTED AND REMAIN UNDISCLOSED TO THE DEFENSE UNTIL SUCH TIME AS THE
COURT DEEMS APPROPRIATE OR REQUIRED BY LAW.
  4. BEFORE THE DEFENDANT ENTERS A GUILTY PLEA THE  COURT  SHALL  ADVISE
THE  DEFENDANT  THAT  AT  A  TRIAL THE INFORMANT COULD BE CROSS-EXAMINED
CONCERNING CREDIBILITY AND RELIABILITY AND THAT BY  PLEADING  GUILTY  TO
RESOLVE THE CASE, HE OR SHE WAIVES THE RIGHT TO CROSS-EXAMINE THE INFOR-
MANT.
  5.  (A) IF THE INFORMANT'S TESTIMONY OR EVIDENCE IS ADMITTED AT TRIAL,
THE COURT SHALL INSTRUCT THE JURY THAT IT SHOULD REVIEW THE  RELIABILITY
AND CREDIBILITY OF THE INFORMANT'S TESTIMONY WITH CAUTION, SCRUTINY, AND
CARE,  THAT THE JURY IS TO CONSIDER WHETHER THE TESTIMONY WAS INFLUENCED
BY ANY PROMISE OR BENEFIT TO THE INFORMANT OR  SOMEONE  AT  HIS  OR  HER
REQUEST,  AND  SUCH  OTHER FACTORS AS THE COURT CONSIDERS APPROPRIATE IN
THE CIRCUMSTANCES.
  (B) IF THE INFORMANT'S TESTIMONY OR EVIDENCE IS ADMITTED AT TRIAL, THE
COURT SHALL INSTRUCT  THE  JURY  THAT  UNLESS  IT  FINDS  THAT  CREDIBLE
EVIDENCE  INDEPENDENT  OF  THAT  OF THE INFORMANT'S TENDS TO CONNECT THE
DEFENDANT TO THE OFFENSE, IT CANNOT CONSIDER THE TESTIMONY OF THE INFOR-
MANT IN MAKING ITS DECISION.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have  become  a law and shall apply to any criminal proceeding commenced
on or after such date.