S T A T E O F N E W Y O R K
________________________________________________________________________
257
2017-2018 Regular Sessions
I N A S S E M B L Y
January 5, 2017
___________
Introduced by M. of A. BRAUNSTEIN, TITONE, JAFFEE, COOK, WEPRIN, ENGLE-
BRIGHT, BRINDISI, STECK -- Multi-Sponsored by -- M. of A. HIKIND,
McDONOUGH, RIVERA -- read once and referred 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:
§ 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.
LBD01690-01-7
A. 257 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
A. 257 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.
§ 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.