senate Bill S1751A

2011-2012 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 - Passed Senate


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

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Actions

view actions (18)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Mar 29, 2012 referred to codes
delivered to assembly
passed senate
Mar 22, 2012 advanced to third reading
Mar 21, 2012 2nd report cal.
Mar 20, 2012 1st report cal.416
Mar 14, 2012 print number 1751a
amend and recommit to codes
Jan 04, 2012 referred to codes
returned to senate
died in assembly
Jun 02, 2011 referred to codes
delivered to assembly
passed senate
May 23, 2011 advanced to third reading
May 18, 2011 2nd report cal.
May 17, 2011 1st report cal.722
Jan 12, 2011 referred to codes

Votes

view votes

Mar 20, 2012 - Codes committee Vote

S1751A
15
1
committee
15
Aye
1
Nay
0
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show Codes committee vote details

May 17, 2011 - Codes committee Vote

S1751
14
1
committee
14
Aye
1
Nay
1
Aye with Reservations
0
Absent
0
Excused
0
Abstained
show committee vote details

Bill Amendments

Original
A (Active)
Original
A (Active)

Co-Sponsors

S1751 - Bill Details

See Assembly Version of this Bill:
A4872A
Current Committee:
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 R4516-a, CPLR
Versions Introduced in 2009-2010 Legislative Session:
S2117, A3512

S1751 - Bill Texts

view 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.

view sponsor memo
BILL NUMBER:S1751

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.2117 of 2009-10 - Referred to Codes
S.5335-A of 2007-08 - Referred to Codes
S.1870-A-of 2005-06 - Passed Senate.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediately.

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

                                  1751

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 12, 2011
                               ___________

Introduced by Sens. GOLDEN, RANZENHOFER -- read twice and ordered print-
  ed, 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.
                                                           LBD04209-02-1

S. 1751                             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  Rule
4516-a to read as follows:

S. 1751                             3

  RULE 4516-A. TESTIMONY BY CERTAIN PUBLIC OFFICERS AND EMPLOYEES.  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 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 IDENTITY 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.

Co-Sponsors

S1751A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A4872A
Current Committee:
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 R4516-a, CPLR
Versions Introduced in 2009-2010 Legislative Session:
S2117, A3512

S1751A (ACTIVE) - Bill Texts

view 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.

view sponsor memo
BILL NUMBER:S1751A

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.l5 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.2117 of 2009-10 - Referred to Codes
S.5335A of 2007-08 - Referred to Codes
S.1870A of 2005-06 - Passed Senate

FISCAL IMPLICATIONS:;
None.

EFFECTIVE DATE:
Immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1751--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 12, 2011
                               ___________

Introduced by Sens. GOLDEN, RANZENHOFER -- read twice and ordered print-
  ed,  and  when  printed  to  be committed to the Committee on Codes --
  recommitted to the Committee on Codes in accordance with  Senate  Rule
  6,  sec. 8 -- committee discharged, bill amended, ordered reprinted as
  amended and recommitted to said committee

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 section 53 of subpart B of part C of chapter 62 of  the  laws
of 2011, is amended to read as follows:
  1. All personnel records used to evaluate performance toward continued
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  department of corrections and community supervision for individuals
defined as peace officers  pursuant  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
department  of  corrections  and  community supervision except as may be
mandated by lawful court order.  FOR PURPOSES OF THIS SECTION, PERSONNEL

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04209-03-2

S. 1751--A                          2

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
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.

S. 1751--A                          3

  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 Rule
4516-a to read as follows:
  RULE 4516-A. TESTIMONY BY CERTAIN PUBLIC OFFICERS AND EMPLOYEES.  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 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 IDENTITY 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  or 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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