The New York State Senate

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

                                 1816--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by M. of A. BRAUNSTEIN, TITONE, JAFFEE, COOK, WEPRIN, ENGLE-
  BRIGHT, BRINDISI, GABRYSZAK, STECK -- Multi-Sponsored by -- M.  of  A.
  BOYLAND,  HIKIND,  McDONOUGH,  RIVERA -- read once and referred to the
  Committee on Codes --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT to amend the criminal procedure law, in relation to confidential
  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 60.23 to read as follows:
S 60.23 RULES OF EVIDENCE; CONFIDENTIAL INFORMANTS.
  1.   AS USED IN THIS SECTION,  THE  FOLLOWING  TERMS  SHALL  HAVE  THE
FOLLOWING MEANINGS:
  (A)  "CONFIDENTIAL INFORMANT" MEANS A PERSON WHO COOPERATES WITH A LAW
ENFORCEMENT AGENCY CONFIDENTIALLY IN ORDER TO PROTECT THE PERSON OR  THE
AGENCY'S INTELLIGENCE GATHERING OR INVESTIGATIVE EFFORTS AND:
  (I)  SEEKS  TO  AVOID  ARREST  OR PROSECUTION FOR A CRIME, OR MITIGATE
PUNISHMENT FOR A CRIME IN WHICH A SENTENCE WILL BE OR HAS BEEN  IMPOSED;
AND
  (II) IS ABLE, BY REASON OF HIS OR HER FAMILIARITY OR CLOSE ASSOCIATION
WITH SUSPECTED CRIMINALS, TO:
  (A) MAKE A CONTROLLED BUY OR CONTROLLED SALE OF CONTRABAND, CONTROLLED
SUBSTANCES,  OR  OTHER  ITEMS  THAT  ARE MATERIAL TO A CRIMINAL INVESTI-
GATION;
  (B) SUPPLY REGULAR OR CONSTANT INFORMATION ABOUT SUSPECTED  OR  ACTUAL
CRIMINAL ACTIVITIES TO A LAW ENFORCEMENT AGENCY; OR
  (C) OTHERWISE PROVIDE INFORMATION IMPORTANT TO ONGOING CRIMINAL INTEL-
LIGENCE GATHERING OR CRIMINAL INVESTIGATIVE EFFORTS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02188-07-3

A. 1816--A                          2

  (B)  "CONTROLLED  BUY"  MEANS  THE  PURCHASE OF CONTRABAND, CONTROLLED
SUBSTANCES, OR OTHER ITEMS THAT ARE MATERIAL TO A CRIMINAL INVESTIGATION
FROM A TARGET OFFENDER WHICH IS INITIATED, MANAGED, OVERSEEN OR  PARTIC-
IPATED IN BY LAW ENFORCEMENT PERSONNEL WITH THE KNOWLEDGE OF A CONFIDEN-
TIAL INFORMANT.
  (C)  "CONTROLLED  SALE"  MEANS  THE    SALE  OF CONTRABAND, CONTROLLED
SUBSTANCES, OR OTHER ITEMS THAT ARE MATERIAL TO A CRIMINAL INVESTIGATION
TO A TARGET OFFENDER WHICH IS INITIATED, MANAGED, OVERSEEN,  OR  PARTIC-
IPATED IN BY LAW ENFORCEMENT PERSONNEL WITH THE KNOWLEDGE OF A CONFIDEN-
TIAL INFORMANT.
  (D) "LAW ENFORCEMENT AGENCY" MEANS ANY AGENCY HAVING A PRIMARY MISSION
OF  PREVENTING  AND  DETECTING  CRIME  AND THE ENFORCEMENT OF THE PENAL,
CRIMINAL, TRAFFIC, OR HIGHWAY LAWS OF THE STATE AND THAT IN  FURTHERANCE
OF THAT PRIMARY MISSION EMPLOYS LAW ENFORCEMENT OFFICERS.
  (E)  "TARGET  OFFENDER"  MEANS THE PERSON SUSPECTED BY LAW ENFORCEMENT
PERSONNEL TO BE IMPLICATED IN CRIMINAL  ACTS  BY  THE  ACTIVITIES  OF  A
CONFIDENTIAL INFORMANT.
  2. A LAW ENFORCEMENT AGENCY THAT USES CONFIDENTIAL INFORMANTS SHALL:
  (A)  INFORM  EACH  PERSON  WHO IS REQUESTED TO SERVE AS A CONFIDENTIAL
INFORMANT THAT THE AGENCY CANNOT PROMISE INDUCEMENTS SUCH AS A GRANT  OF
IMMUNITY,  DROPPED OR REDUCED CHARGES, OR REDUCED SENTENCES OR PLACEMENT
ON PROBATION IN EXCHANGE FOR SERVING AS A CONFIDENTIAL INFORMANT.
  (B) INFORM EACH PERSON WHO IS REQUESTED TO  SERVE  AS  A  CONFIDENTIAL
INFORMANT  THAT  THE  VALUE  OF  HIS OR HER ASSISTANCE AS A CONFIDENTIAL
INFORMANT AND ANY EFFECT THAT ASSISTANCE MAY HAVE  ON  PENDING  CRIMINAL
MATTERS CAN BE DETERMINED ONLY BY THE APPROPRIATE LEGAL AUTHORITY.
  (C)  EACH  PERSON  WHO IS SOLICITED TO ACT AS A CONFIDENTIAL INFORMANT
MUST BE GIVEN THE OPPORTUNITY  TO  CONSULT  WITH  LEGAL  COUNSEL  BEFORE
ENTERING  INTO  A SUBSTANTIAL ASSISTANCE AGREEMENT. IF THE PERSON IS NOT
REPRESENTED BY LEGAL COUNSEL AT THE TIME OF THE  SOLICITATION,  THE  LAW
ENFORCEMENT AGENCY MUST ADVISE THE PERSON OF HIS OR HER RIGHT TO CONSULT
WITH  LEGAL  COUNSEL  BEFORE  ENTERING  INTO  THE SUBSTANTIAL ASSISTANCE
AGREEMENT.
  (D) ENSURE THAT ALL PERSONNEL WHO ARE INVOLVED IN THE USE OR  RECRUIT-
MENT OF CONFIDENTIAL INFORMANTS ARE TRAINED IN THE LAW ENFORCEMENT AGEN-
CY'S POLICIES AND PROCEDURES. THE AGENCY SHALL KEEP DOCUMENTATION DEMON-
STRATING THE DATE OF SUCH TRAINING.
  (E)  ADOPT POLICIES AND PROCEDURES THAT ASSIGN THE HIGHEST PRIORITY IN
OPERATIONAL DECISIONS AND ACTIONS TO THE PRESERVATION OF THE  SAFETY  OF
CONFIDENTIAL  INFORMANTS,  LAW  ENFORCEMENT PERSONNEL, TARGET OFFENDERS,
AND THE PUBLIC.
  3. A LAW ENFORCEMENT AGENCY THAT USES  CONFIDENTIAL  INFORMANTS  SHALL
ESTABLISH  POLICIES  AND  PROCEDURES ADDRESSING THE RECRUITMENT, CONTROL
AND USE OF CONFIDENTIAL INFORMANTS. THE POLICIES  AND  PROCEDURES  SHALL
STATE THE:
  (A)  INFORMATION  THAT  THE  LAW  ENFORCEMENT  AGENCY  SHALL  MAINTAIN
CONCERNING EACH CONFIDENTIAL INFORMANT;
  (B) GENERAL GUIDELINES FOR HANDLING CONFIDENTIAL INFORMANTS;
  (C)  PROCESS  TO  ADVISE  A  CONFIDENTIAL  INFORMANT  OF   CONDITIONS,
RESTRICTIONS,  AND PROCEDURES ASSOCIATED WITH PARTICIPATING IN THE AGEN-
CY'S INVESTIGATIVE OR INTELLIGENCE GATHERING ACTIVITIES;
  (D) DESIGNATED SUPERVISORY OR COMMAND LEVEL REVIEW  AND  OVERSIGHT  IN
THE USE OF A CONFIDENTIAL INFORMANT;
  (E) LIMITS OR RESTRICTIONS ON OFF-DUTY ASSOCIATION OR SOCIAL RELATION-
SHIPS  BY  AGENCY  PERSONNEL  INVOLVED  IN INVESTIGATIVE OR INTELLIGENCE
GATHERING WITH CONFIDENTIAL INFORMANTS;

A. 1816--A                          3

  (F) GUIDELINES TO DEACTIVATE CONFIDENTIAL INFORMANTS, INCLUDING GUIDE-
LINES FOR DEACTIVATING COMMUNICATIONS WITH CONFIDENTIAL INFORMANTS; AND
  (G)  LEVEL  OF SUPERVISORY APPROVAL REQUIRED BEFORE A JUVENILE IS USED
AS A CONFIDENTIAL INFORMANT.
  4. A LAW ENFORCEMENT AGENCY THAT USES  CONFIDENTIAL  INFORMANTS  SHALL
ESTABLISH  POLICIES  AND PROCEDURES TO ASSESS THE SUITABILITY OF USING A
PERSON AS A CONFIDENTIAL INFORMANT BY CONSIDERING THE MINIMUM  FOLLOWING
FACTORS:
  (A)  THE  PERSON'S AGE, MATURITY, YOUTHFUL OFFENDER STATUS, AND MENTAL
CAPACITY IF SUCH PERSON IS MENTALLY DISABLED AS SUCH TERM IS DEFINED  IN
SUBDIVISION THREE OF SECTION 1.03 OF THE MENTAL HYGIENE LAW;
  (B)  THE RISK THE PERSON POSES TO ADVERSELY AFFECT A PRESENT OR POTEN-
TIAL INVESTIGATION OR PROSECUTION;
  (C) THE EFFECT UPON AGENCY EFFORTS THAT THE DISCLOSURE OF THE PERSON'S
COOPERATION IN THE COMMUNITY MAY HAVE;
  (D) WHETHER THE PERSON IS A SUBSTANCE  ABUSER  OR  HAS  A  HISTORY  OF
SUBSTANCE ABUSE OR IS IN A COURT-SUPERVISED DRUG TREATMENT PROGRAM;
  (E)  THE  RISK  OF  PHYSICAL  HARM TO THE PERSON, HIS OR HER IMMEDIATE
FAMILY, OR CLOSE ASSOCIATES AS A  RESULT  OF  PROVIDING  INFORMATION  OR
ASSISTANCE,  OR  UPON  THE  DISCLOSURE OF THE PERSON'S ASSISTANCE TO THE
COMMUNITY;
  (F) WHETHER THE PERSON HAS SHOWN ANY INDICATION OF EMOTIONAL INSTABIL-
ITY, UNRELIABILITY OR OF FURNISHING FALSE INFORMATION;
  (G) THE PERSON'S CRIMINAL HISTORY OR PRIOR CRIMINAL RECORD; AND
  (H) WHETHER THE USE OF THE PERSON IS IMPORTANT  TO  OR  VITAL  TO  THE
SUCCESS OF AN INVESTIGATION.
  5.  A  LAW  ENFORCEMENT AGENCY THAT USES CONFIDENTIAL INFORMANTS SHALL
ESTABLISH WRITTEN SECURITY PROCEDURES THAT, AT A MINIMUM:
  (A) PROVIDE FOR THE SECURED RETENTION OF ANY RECORDS  RELATED  TO  THE
LAW ENFORCEMENT AGENCY'S CONFIDENTIAL SOURCES, INCLUDING ACCESS TO FILES
IDENTIFYING THE IDENTITY OF CONFIDENTIAL SOURCES;
  (B)  LIMIT AVAILABILITY TO RECORDS RELATING TO CONFIDENTIAL INFORMANTS
TO THOSE WITHIN THE LAW ENFORCEMENT AGENCY OR LAW ENFORCEMENT  COMMUNITY
HAVING  A NEED TO KNOW OR REVIEW THOSE RECORDS, OR TO THOSE WHOSE ACCESS
HAS BEEN REQUIRED BY COURT PROCESS OR ORDER;
  (C) REQUIRE NOTATION OF EACH PERSON WHO ACCESSES SUCH RECORDS AND  THE
DATE THAT THE RECORDS ARE ACCESSED;
  (D)  PROVIDE FOR REVIEW AND OVERSIGHT BY THE LAW ENFORCEMENT AGENCY TO
ENSURE THAT THE SECURITY PROCEDURES ARE FOLLOWED; AND
  (E) DEFINE THE PROCESS BY  WHICH  RECORDS  CONCERNING  A  CONFIDENTIAL
INFORMANT MAY BE LAWFULLY DESTROYED.
  6.  A  STATE  OR  LOCAL  LAW ENFORCEMENT AGENCY THAT USES CONFIDENTIAL
INFORMANTS SHALL PERFORM A PERIODIC REVIEW OF ACTUAL AGENCY CONFIDENTIAL
INFORMANT PRACTICES TO ENSURE CONFORMITY WITH THE AGENCY'S POLICIES  AND
PROCEDURES AND THIS SECTION.
  7.  THE PROVISIONS OF THIS SECTION AND POLICIES AND PROCEDURES ADOPTED
PURSUANT TO THIS SECTION DO NOT GRANT ANY  RIGHT  OR  ENTITLEMENT  TO  A
CONFIDENTIAL INFORMANT OR A PERSON WHO IS REQUESTED TO BE A CONFIDENTIAL
INFORMANT,  AND  ANY  FAILURE TO ABIDE BY THIS SECTION MAY NOT BE RELIED
UPON TO CREATE ANY ADDITIONAL RIGHT, SUBSTANTIVE OR PROCEDURAL, ENFORCE-
ABLE AT LAW BY A DEFENDANT IN A CRIMINAL PROCEEDING.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.