senate Bill S1229

2011-2012 Legislative Session

Regulates the use of informants by the prosecuting attorney and law enforcement personnel

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to codes
Jan 06, 2011 referred to codes

S1229 - Bill Details

See Assembly Version of this Bill:
A437
Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Add ยง60.77, CP L
Versions Introduced in 2009-2010 Legislative Session:
S6341, A3712

S1229 - Bill Texts

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Regulates the use of informants by the prosecuting attorney and law enforcement personnel; requires law enforcement personnel to submit an annual report to the department of state with statistical information relating to their use of informants.

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BILL NUMBER:S1229

TITLE OF BILL:

An act
to amend the criminal procedure law, in relation to the regulation of
the use of informants

PURPOSE OR GENERAL IDEA OF BILL:

To introduce more transparency, uniformity and formality into law
enforcement's use of informants. To protect society from the
troubling side effects of this largely unregulated practice.

SUMMARY OF SPECIFIC PROVISIONS:

Compiles annual statistics about law enforcement use of informants to
assist with judicial and legislative oversight. Provides defendants
and their attorneys with vital information about informants offering
testimony against them through full disclosure, reliability hearings
and depositions. Places limits on who can be turned into an informant.

JUSTIFICATION:

This bill is designed to provide guidelines, and to allow for more
legislative, judicial and public scrutiny over the practice of using
informants to solve crimes to ensure that it is truly benefiting
society and creating safer neighborhoods for New Yorkers. It also
attempts to provide for more continuity in the circumstances
surrounding the creation and maintenance of informants. The bill does
not intend to eliminate the practice, rather it seeks to set
standards and achieve greater oversight of the entire process.

Informants provide information to government officials, police,
prosecutors, etc exchange for some sort of government benefit. It is
a very common and pervasive practice in today's law enforcement, that
largely goes unchecked, unregulated and without scrutiny.

Most often, informant use is particularly referring to someone who
provides information about another person's criminal behavior in
exchange for a government conferred benefit, such as avoidance of
prosecution or arrest, a reduction of charges, privileges while in
prison etc. Informing can be an enormous labor and time saving device
for both police and prosecutors that can be essential for prosecution
of certain types of cases.

However, legislative, judicial and public entities rarely have the
opportunity to review these negotiations. Informant agreements do not
require judicial approval to make sure they are in society's best,
interest, as plea agreements do. Instead, the practice relies almost
completely on police and prosecutorial discretion. The use of
informants also creates a system in which defendants are often
convicted largely on the testimony of what is essentially a 'paid'
informant. This testimony can be very difficult to contradict and
extremely persuasive to a jury.
There are no official statistics or numbers relating to how often


informants are used, where, or what crimes are being traded for what
information, or what kind of convictions result.

Moreover, there is absolutely no uniformity in informant practices.
The situation and the arrangements vary greatly. Police routinely
overlook
past, present and continuing crimes such as drug abuse and dealing, or
worse because they do not want to lose their informant.

The question then arises, does this result in a net gain or loss for
the community? Potentially, the informant system is contributing to
crime, in addition to fighting it. Moreover, it is fairly well known
that informants are sometimes selective in who they 'rat out,' basing
it on their own convenience rather than an individual's threat to
society.

Despite the apparent advantages to the informant, they also incur
serious risks. The informant is deprived of many of the protections
and rights that our constitution was designed to include. When
someone agrees to be an informant in order to avoid an arrest, they
are essentially admitting guilt, often without the benefit of
defense counsel, Miranda warning, or written agreement. These
agreements can last years and offer no guarantee against eventual
arrest. During this time, the informant is constantly in peril.
Frequently, those who are discovered by their peers, to be informants
face dire consequences.

The management of informants needs to be made more uniform and formal
in order to protect everyone involved.

In conclusion, the practice of using informants can be detrimental to
the community as a whole. The fact that informants can commit certain
crimes with police permission gives the impression that criminality
and morality are relative. It promotes disloyalty and heightens
mistrust and anger between law enforcement and communities and within
the communities themselves.

PRIOR LEGISLATIVE HISTORY:

A.10096 of 2006
A.1124 of 2007-2008
2009: S.6341 (Duane) Died in Rules; A.3712 (Lentol) Died in Codes
2010: S.6341 (Duane) Died in Codes; A.3712 (Lentol) Died in Codes

FISCAL IMPLICATIONS:

None to the State.

EFFECTIVE DATE:

September first next succeeding the date on which it shall have become a
law.

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

                                  1229

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             January 6, 2011
                               ___________

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  the  regu-
  lation of the use of informants

  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; USE OF CONFIDENTIAL INFORMANTS.
  1. WHENEVER A PROSECUTING ATTORNEY PLANS TO USE AN INFORMANT TO TESTI-
FY  AGAINST  A  DEFENDANT,  THE  ATTORNEY  FOR  SUCH  DEFENDANT SHALL BE
SUPPLIED WITH:
  A. THE COMPLETE CRIMINAL RECORD OF THE INFORMANT;
  B. ANY TESTIMONY OR INFORMATION THE  INFORMANT  HAS  PROVIDED  OR  HAS
PROMISED TO PROVIDE FOR ANY LEGAL ACTION;
  C.  ALL  STATEMENTS  MADE  BY  THE  INFORMANT ABOUT THE SPECIFIC LEGAL
ACTION IN QUESTION; AND
  D. ALL PROMISES, COMPROMISES, OR PROTECTIONS OFFERED BY THE  PROSECUT-
ING ATTORNEY TO THE INFORMANT IN EXCHANGE FOR HIS OR HER TESTIMONY. THIS
SHALL  ALSO INCLUDE ANY INFORMATION ABOUT CRIMES COMMITTED BY THE INFOR-
MANT FOR WHICH CHARGES WILL NOT BE BROUGHT IN EXCHANGE FOR  HIS  OR  HER
TESTIMONY.
  2.  THE  ATTORNEY  FOR THE DEFENDANT SHALL BE GIVEN THE OPPORTUNITY TO
DEPOSE THE INFORMANT PRIOR TO ENTERING INTO  ANY  PLEA  NEGOTIATIONS  OR
GOING TO TRIAL.
  3. UPON THE REQUEST OF THE ATTORNEY FOR THE DEFENDANT, THE JUDGE SHALL
GRANT A RELIABILITY HEARING, WHICH SHALL BE USED TO DETERMINE THE CREDI-
BILITY OF THE INFORMANT'S TESTIMONY. BOTH THE PROSECUTION AND THE ATTOR-
NEY  FOR  THE  DEFENDANT SHALL BE ENTITLED TO OFFER EVIDENCE RELATING TO
THE INFORMANT'S RELIABILITY. THE JUDGE, IN HIS OR  HER  OWN  DISCRETION,
SHALL  WEIGH  THE  EVIDENCE AND DETERMINE IF THE INFORMANT IS A RELIABLE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01158-01-1

S. 1229                             2

WITNESS. IF THE INFORMANT IS FOUND TO BE UNRELIABLE, HE OR SHE SHALL  BE
PROHIBITED FROM TESTIFYING AGAINST THE DEFENDANT.
  4.  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW RELATING TO THE PLEA
BARGAINS, NO PROSECUTING ATTORNEY SHALL OFFER A DISMISSAL OF  OR  REFUSE
TO  BRING  CHARGES  FOR  THE  CRIMES  OF  MURDER, MANSLAUGHTER, RAPE, OR
KIDNAPPING IN EXCHANGE FOR THE TESTIMONY OF A PERSON.
  5. IF A PERSON HAS COMMITTED A CRIME THAT, IF CONVICTED, WOULD  RESULT
IN  A  CONVICTION  OF  A CLASS A MISDEMEANOR OR ANY CLASS OF FELONY, LAW
ENFORCEMENT OFFICERS OR THE PROSECUTING ATTORNEY MUST  RECEIVE  JUDICIAL
CONSENT  BEFORE  USING  SUCH  CHARGE AS A PLEA OFFER IN EXCHANGE FOR THE
TESTIMONY OF THE PERSON.
  6. COMMENCING JANUARY FIRST IN THE YEAR FOLLOWING THE  EFFECTIVE  DATE
OF THIS SECTION, AND EVERY JANUARY FIRST THEREAFTER, ALL LAW ENFORCEMENT
PERSONNEL  WHO USE INFORMANTS SHALL FILE A REPORT WITH THE DEPARTMENT OF
STATE. THE REPORT SHALL BE AVAILABLE TO PUBLIC  INSPECTION  AND  MAY  BE
MADE AVAILABLE ON THE DEPARTMENT OF STATE WEBSITE OR IN OTHER ELECTRONIC
FORMATS. THE REPORT SHALL INCLUDE:
  A.  THE  EXACT  NUMBER  OF  INFORMANTS  CREATED  AND SUSTAINED BY EACH
DEPARTMENT OR OFFICE;
  B. THE NUMBER OF OCCURRENCES WHEN A SUSPECT BECOMES AN INFORMANT WITH-
OUT EVER BEING OFFICIALLY CHARGED WITH A CRIME;
  C. THE NUMBER OF OCCURRENCES WHEN A SUSPECT HAS CHARGES DROPPED  AFTER
AGREEING TO BECOME AN INFORMANT;
  D.  THE  SPECIFIC  OFFENSES THAT HAVE BEEN DROPPED AS THE RESULT OF AN
INDIVIDUAL BECOMING AN INFORMANT;
  E. THE NUMBER OF ARRESTS THAT ARE THE DIRECT OR INDIRECT RESULT OF THE
USE OF AN INFORMANT AND THE ROLE PLAYED BY THE INFORMANT FOR  EACH  SUCH
ARREST;
  F. THE NUMBER OF CONVICTIONS THAT ARE THE DIRECT OR INDIRECT RESULT OF
THE  USE  OF  AN INFORMANT AND THE ROLE PLAYED BY THE INFORMANT FOR EACH
SUCH CONVICTION; AND
  G. THE AGE, RACE, GENDER, AND NEIGHBORHOOD OF RESIDENCE OF EACH INFOR-
MANT.
  S 2. This act shall  take  effect  on  the  first  of  September  next
succeeding the date on which it shall have become a law.

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