S T A T E O F N E W Y O R K
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5142
2017-2018 Regular Sessions
I N A S S E M B L Y
February 6, 2017
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Introduced by M. of A. TITUS, AUBRY, JAFFEE -- Multi-Sponsored by -- M.
of A. GLICK, GOTTFRIED, TITONE -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law, in relation to informant
testimony
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 60.77 to read as follows:
§ 60.77 RULES OF EVIDENCE: TESTIMONY OF AN INFORMANT WHO IS NOT AN
ACCOMPLICE.
1. DEFINITION. AS USED IN THIS SECTION, AN "INFORMANT" IS A PERSON WHO
IS NOT AN ACCOMPLICE AND WHO AGREES TO PROVIDE TESTIMONY OR EVIDENCE ON
AN UNDERSTANDING THAT HE OR SHE WILL RECEIVE A FAVORABLE DISPOSITION OR
RESOLUTION OF PENDING OR POSSIBLE CRIMINAL CHARGES, FINANCIAL BENEFIT
NOT ASSOCIATED WITH USUAL WITNESS APPEARANCE, OR OTHER SUBSTANTIAL BENE-
FIT FOR HIMSELF OR HERSELF OR ANOTHER PERSON.
2. THE TESTIMONY OF AN INFORMANT AGAINST THE DEFENDANT MAY BE ADMITTED
INTO EVIDENCE ONLY IF THE PROSECUTION PRESENTS EVIDENCE INDEPENDENT OF
THE INFORMANT'S TESTIMONY THAT TENDS TO CONNECT THE DEFENDANT TO THE
COMMISSION OF THE OFFENSE.
3. (A) UNLESS EARLIER DISCLOSURE IS OTHERWISE REQUIRED BY LAW, AT A
REASONABLE TIME PRIOR TO TRIAL OR ENTRY OF A GUILTY PLEA, THE PROSE-
CUTION SHALL DISCLOSE TO THE COURT AND THE DEFENSE THE EVIDENCE IT
CLAIMS TO BE CORROBORATIVE OF THE INFORMANT'S INFORMATION TENDING TO
CONNECT THE DEFENDANT WITH THE OFFENSE. AT A REASONABLE TIME PRIOR TO
TRIAL THE COURT SHALL DETERMINE WHETHER, WITHOUT THE INFORMANT'S TESTI-
MONY, THE PROSECUTOR'S PROPOSED EVIDENCE TENDS TO CONNECT THE DEFENDANT
TO THE OFFENSE. IF THE COURT FINDS THAT THE PROPOSED INDEPENDENT
EVIDENCE TENDS TO CONNECT THE DEFENDANT TO THE OFFENSE, THE INFORMANT
SHALL BE PERMITTED TO GIVE TESTIMONY AT A TRIAL. IF THE PROSECUTION
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02798-01-7
A. 5142 2
FAILS TO MAKE THE REQUIRED SHOWING, THE INFORMANT WILL NOT BE PERMITTED
TO TESTIFY CONCERNING THE DEFENDANT'S ROLE IN THE OFFENSE.
(B) AT A REASONABLE TIME PRIOR TO TRIAL OR ENTRY OF A GUILTY PLEA, THE
PROSECUTOR SHALL INFORM THE DEFENSE OF ANY PROMISE, BENEFIT, OR FAVORA-
BLE DISPOSITION GIVEN TO THE INFORMANT OR SOMEONE ELSE AT THE
INFORMANT'S REQUEST AND DELIVER TO THE DEFENSE ANY DOCUMENT, ELECTRONIC
RECORD, NOTES OR OTHER RECORD OF THE PROMISE; THE CIRCUMSTANCES IN WHICH
THE INFORMANT REVEALED THE INFORMATION; WHETHER THE INFORMANT AT ANY
TIME RETRACTED THE INFORMATION AND THE CIRCUMSTANCES OF SUCH RETRACTION;
THE INFORMANT'S RECORD OF CRIMINAL CONVICTIONS AND PRIOR CRIMINAL
CONDUCT; OTHER MATTERS IN WHICH THE INFORMANT HAS GIVEN AID TO OR TESTI-
FIED FOR THE PROSECUTION; AND SUCH OTHER INFORMATION AS THE DEFENSE
REQUESTS AND THE COURT DEEMS APPROPRIATE UNDER THE CIRCUMSTANCES.
(C) UPON MOTION OF THE PROSECUTOR AND ON A SHOWING THAT DISCLOSURE OF
THE INFORMANT'S IDENTITY WOULD ENDANGER THE INFORMANT, THAT THE
INFORMANT'S SERVICES TO THE STATE WOULD BE UNDERMINED, OR FOR OTHER
REASON FOUND COMPELLING BY THE COURT, THE IDENTITY OF THE INFORMANT MAY
BE REDACTED AND REMAIN UNDISCLOSED TO THE DEFENSE UNTIL SUCH TIME AS THE
COURT DEEMS APPROPRIATE OR REQUIRED BY LAW.
4. BEFORE THE DEFENDANT ENTERS A GUILTY PLEA THE COURT SHALL ADVISE
THE DEFENDANT THAT AT A TRIAL THE INFORMANT COULD BE CROSS-EXAMINED
CONCERNING CREDIBILITY AND RELIABILITY AND THAT BY PLEADING GUILTY TO
RESOLVE THE CASE, HE OR SHE WAIVES THE RIGHT TO CROSS-EXAMINE THE INFOR-
MANT.
5. (A) IF THE INFORMANT'S TESTIMONY OR EVIDENCE IS ADMITTED AT TRIAL,
THE COURT SHALL INSTRUCT THE JURY THAT IT SHOULD REVIEW THE RELIABILITY
AND CREDIBILITY OF THE INFORMANT'S TESTIMONY WITH CAUTION, SCRUTINY, AND
CARE, THAT THE JURY IS TO CONSIDER WHETHER THE TESTIMONY WAS INFLUENCED
BY ANY PROMISE OR BENEFIT TO THE INFORMANT OR SOMEONE AT HIS OR HER
REQUEST, AND SUCH OTHER FACTORS AS THE COURT CONSIDERS APPROPRIATE IN
THE CIRCUMSTANCES.
(B) IF THE INFORMANT'S TESTIMONY OR EVIDENCE IS ADMITTED AT TRIAL, THE
COURT SHALL INSTRUCT THE JURY THAT UNLESS IT FINDS THAT CREDIBLE
EVIDENCE INDEPENDENT OF THAT OF THE INFORMANT'S TENDS TO CONNECT THE
DEFENDANT TO THE OFFENSE, IT CANNOT CONSIDER THE TESTIMONY OF THE INFOR-
MANT IN MAKING ITS DECISION.
§ 2. This act shall take effect on the ninetieth day after it shall
have become a law and shall apply to any criminal proceeding commenced
on or after such date.