senate Bill S5732A

2013-2014 Legislative Session

Relates to confidential informants

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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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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to codes
Oct 25, 2013 print number 5732a
amend and recommit to codes
Jun 10, 2013 referred to codes

Bill Amendments

Original
A (Active)
Original
A (Active)

S5732 - Bill Details

See Assembly Version of this Bill:
A1816A
Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Add §60.23, CP L

S5732 - Bill Texts

view summary

Relates to confidential informants; defines terms; requires the law enforcement agencies which use confidential informants to establish policies and procedures to assess the suitability of using a person as a confidential informant; makes related provisions.

view sponsor memo
BILL NUMBER:S5732

TITLE OF BILL: An act to amend the criminal procedure law, in
relation to confidential informants

PURPOSE OR GENERAL IDEA OF BILL: To amend the law in relation to
confidential informants by defining confidential informants; by
imposing restrictions on who and who may not be a confidential
informant; by regulating the use of confidential informants.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Adds a new section 60.23 to the criminal procedure law.
This new section defines confidential informant, controlled buy,
controlled sale, law enforcement agency, and target offender.

This section also requires law enforcement agencies that use
confidential informants to inform each person who is requested to
serve as a confidential informant: that the agency cannot promise
inducements in exchange for serving as a confidential informant; that
the value of his or her assistance and any effect of the assistance on
pending criminal matters can be determined only by the appropriate
legal authority; that 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.
The agency must also ensure that personnel who are involved in the use
or recruitment of confidential informants are trained in the law
enforcement agency's policies and procedures, and must 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.

The section requires the law enforcement agency that uses confidential
informants to establish policies and procedures addressing the
recruitment, control and use of confidential informants. The policies
and procedures must state the information that will be maintained
about each confidential informant; general guidelines for handling
informants; a process for advising the informant of conditions,
restrictions, and procedures associated with participating in the
agency's investigative or intelligence gathering activities; the
designated supervisory or command level review and oversight in the
use of a confidential informant; limits or restrictions on off-duty
association or relationships by agency personnel with confidential
informants; guidelines, to deactivate confidential informants and
communications with them; and the level of supervisory approval
required before a juvenile is used as a confidential informant.

The section also provides for establishing policies and procedures to
assess the suitability of using a person as an informant by
considering a variety of factors, including the person's age,
maturity, mental capacity; 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; the reliability of the person; the effect
upon agency efforts that the disclosure of the person's cooperation in
the community may have; whether the person is a substance abuser or


has a history of substance abuse or is in a court-supervised drug
treatment program; the person's criminal history or prior. criminal
record; and whether the use of the person is important to or vital to
the success of an investigation.

The section also requires law enforcement agencies to establish
written security procedures that provide for the secured retention of
records related to the use of confidential sources; limit the
availability of the records relating to confidential informants to
those within the law enforcement agency or law enforcement community,
or those having a need to review the records, or whose access has been
required by court process; require the notation of each person who
accesses the records; provide for review by the agency to ensure the
security procedures are followed; and define the process by which
records concerning an informant may be lawfully destroyed.

The section requires state or local law enforcement agencies that use
confidential informants to conduct a periodic review of actual agency
confidential informant practices to ensure conformity with the
agency's policies and procedures and this section. The section does
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
addition right, substantive or procedural, enforceable at law by a
defendant in a criminal proceeding.

Section 2. Provides for the effective date.

JUSTIFICATION: This legislation is based on Florida's "Rachel's Law."
In 2008, Rachel Hoffman, a 23 year-old Florida State University
graduate, and who was not a trained narcotics operative, was recruited
by Tallahassee police to be a confidential informant. She agreed to be
a confidential informant because of a prior arrest and a belief that
charges against her. could be reduced or dropped. However, when Ms.
Hoffman was sent to a controlled buy, she was killed by the people she
was sent to meet because they had figured out she was a confidential
informant.

Confidential informants play an important role in curbing the sale and
use of drugs in our state, and oftentimes law enforcement must act
expediently while investigating criminal activity. However, there are
few safeguards to protect confidential informants,. Many of them are
untrained, and choose to proceed with these operations because of the
assurances made by police in the course of their recruitment.
Confidential informants are in a vulnerable position; police officers
making such assurances and continuing to use informants beyond stated
contract terms is not a rare occurrence.

Not only are many of the confidential informants untrained, but many
are more at risk of harm than others because of their age, maturity,
families, and history of substance abuse. The Florida law requires law
enforcement agencies to consider a variety of factors when determining
whether to use an individual as a confidential informant, such as
those provided for in this legislation.

Proceeding to enter into confidential informant contracts without
legal counsel places these informants at risk. Miranda Rights and the


Sixth Amendment do not apply to confidential informants because they
may not be formally arrested or charged with a crime. As a result,
many consent to their use because they are unable to seek counsel for
advice or to review any contract which they enter into with the police
departments; such contracts may be unspecific and the details are
rarely recorded, but they are contracts nonetheless. This legislation
would mandate that they be given the opportunity to consult counsel.

This legislation would regulate the use of confidential informants.
Regulating this practice is necessary to protect the lives of
informants in New York.

PRIOR LEGISLATIVE HISTORY: None.

FISCAL IMPLICATIONS: None to state.

EFFECTIVE DATE: The first of November 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
________________________________________________________________________

                                  5732

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 10, 2013
                               ___________

Introduced  by  Sen. PERKINS -- 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  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.
  (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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02188-01-3

S. 5732                             2

  (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 USED 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;
  (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.

S. 5732                             3

  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 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.

S5732A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A1816A
Current Committee:
Law Section:
Criminal Procedure Law
Laws Affected:
Add §60.23, CP L

S5732A (ACTIVE) - Bill Texts

view summary

Relates to confidential informants; defines terms; requires the law enforcement agencies which use confidential informants to establish policies and procedures to assess the suitability of using a person as a confidential informant; makes related provisions.

view sponsor memo
BILL NUMBER:S5732A

TITLE OF BILL: An act to amend the criminal procedure law, in
relation to confidential informants

PURPOSE OR GENERAL IDEA OF BILL:

To amend the criminal procedure law in relation to confidential
informants by defining confidential informants: by imposing
restrictions on who and who may not be a confidential informant; by
regulating the use of confidential informants.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1. Adds a new section 60.23 to the criminal procedure law.

60.23.1: This new section defines the following terms: confidential
informant, controlled buy, controlled sale, law enforcement agency and
target offender.

60.23.2: This section requires law enforcement agencies that use
confidential informants to inform each person who is requested to
serve as a confidential informant: that the agency cannot promise
inducements in exchange for serving as a confidential informant; that
the value of his or her assistance and any effect of the assistance on
pending criminal matters can be determined only by the appropriate
legal authority; and that 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.
The agency must also ensure that personnel who are involved in the use
or recruitment of confidential informants are trained in the law
enforcement agency's policies and procedures, and must 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.

60.23.3: The section requires the law enforcement agency that uses
confidential informants to establish policies and procedures
addressing the recruitment, control and use of confidential
informants. The policies and procedures must state the information
that will be maintained about each confidential informant; general
guidelines for handling informants; a process for advising the
informant of conditions, restrictions, and procedures associated with
participating in the agency's investigative or intelligence gathering
activities; the designated supervisory or command level review and
oversight in the use of a confidential informant; limits or
restrictions on off-duty association or relationships by agency
personnel with confidential informants; guidelines to deactivate
confidential informants and communications with them; and the level of
supervisory approval required before a juvenile is used as a
confidential informant.

60.23.4: The section provides for establishing policies and procedures
to assess the suitability of using a person as an informant by
considering a variety of factors, including the person's age,
maturity, mental capacity, and youthful offender status; 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; the
reliability of the person; the effect upon agency efforts that the
disclosure of the person's cooperation in the community may have;
whether the person is a substance abuser or has a history of substance
abuse or is in a court-supervised drug treatment program; the person's
criminal history or prior criminal record; and whether the use of the
person is important to or vital to the success of an investigation.

60.23.5: The section requires law enforcement agencies to establish
written security procedures that provide for the secured retention of
records related to the use of confidential sources; limits the
availability of the records relating to confidential informants to
those within the law enforcement agency or law enforcement community,
or those having a need to review the records, or whose access has been
required by court process; requires the notation of each person who
accesses the records: provides for review by the agency to ensure the
security procedures are followed; and defines the process by which
records concerning an informant may be lawfully destroyed.

60.23.6: The section requires state or local law enforcement agencies
that use confidential informants to conduct a periodic review of
actual agency confidential informant practices to ensure conformity
with the agency's policies and procedures and this section.

60.23.7: The section makes clear this legislation does 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, enforceable at law by a defendant in a
criminal proceeding.

Section 2. Provides for the effective date.

JUSTIFICATION:

This legislation is based on Florida's "Rachel's Law." In 2008, Rachel
Hoffman, a 23 year-old Florida State University graduate, was
recruited by Tallahassee police to be a confidential informant. She
agreed to be a confidential informant because of a prior arrest and a
belief that charges against her could be reduced or dropped. However,
when she was sent to a controlled buy, she was killed by those who had
found out she was a confidential informant.

Confidential informants play an important role in curbing the sale and
use of drugs in our state, but without safeguards to protect the
informants, and the liability of the officers who recruit them,
thousands of individuals are at risk.

This legislation would regulate the use of confidential informants.
Such regulation would include the adoption of policies and procedures
by law enforcement agencies governing the ability to use confidential
informants and disclosure of information to the informants.

PRIOR LEGISLATIVE HISTORY:


New legislation in 2013; referred to the Codes Committee in both
houses.

FISCAL IMPLICATIONS:

None specifically noted.

EFFECTIVE DATE:

The first of November next succeeding the date on which it shall have
become a

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

                                 5732--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 10, 2013
                               ___________

Introduced  by  Sen. PERKINS -- read twice and ordered printed, and when
  printed to be  committed  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.
  (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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02188-08-3

S. 5732--A                          2

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;
  (F) GUIDELINES TO DEACTIVATE CONFIDENTIAL INFORMANTS, INCLUDING GUIDE-
LINES FOR DEACTIVATING COMMUNICATIONS WITH CONFIDENTIAL INFORMANTS; AND

S. 5732--A                          3

  (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.

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