S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4096
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 1, 2017
                                ___________
 
 Introduced by M. of A. SIMOTAS, COLTON, HOOPER, SIMANOWITZ, MONTESANO --
   read once and referred 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  516  of  the  laws  of 2014, 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  and  such
 personnel  records under the control of a probation department for indi-
 viduals defined as peace officers pursuant to subdivision twenty-four of
 section 2.10 of the criminal procedure law shall be considered confiden-
 tial 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  or  probation  department  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.
              

                                                            LBD04148-01-7

 A. 4096                             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.
   §  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.
   § 3. The family court act is amended by adding a new section 343.6  to
 read as follows:
   §  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.

 A. 4096                             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.
   §  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.
   § 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.
   § 6. This act shall take effect on the thirtieth day  after  it  shall
 have become a law.