NY State Senate Bill 2017-S224

Senate Bill S224

2017-2018 Legislative Session

Authorizes prosecuting agency to move to have identity of undercover public officers and employees protected while testifying in court

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 20, 2018	committed to rules
Apr 23, 2018	advanced to third reading
Apr 18, 2018	2nd report cal.
Apr 17, 2018	1st report cal.814
Jan 03, 2018	referred to codes
Jan 04, 2017	referred to codes

Votes

- Apr 17, 2018 - Codes Committee Vote
  S224
  
  16
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Codes Committee Vote: Apr 17, 2018
      
      aye (16)
      
      Akshar
      
      Bailey
      
      Boyle
      
      Gallivan
      
      Golden
      
      Griffo
      
      Hoylman-Sigal
      
      Kaminsky
      
      Krueger
      
      Lanza
      
      Little
      
      O'Mara
      
      Peralta
      
      Savino
      
      Serrano
      
      Tedisco

2017-S224 (ACTIVE) - Details

See Assembly Version of this Bill:: A4096
Current Committee:: Senate Rules
Law Section:: Civil Rights Law
Laws Affected:: Amd §50-a, Civ Rts L; amd §60.15, CP L; add §343.6, Fam Ct Act; add R4516-a, CPLR
Versions Introduced in Other Legislative Sessions:: 2009-2010: S2117, A3512
2011-2012: S1751, A4872
2013-2014: S2174, A2139
2015-2016: S1467, A2796
2019-2020: A851

2017-S224 (ACTIVE) - Summary

Authorizes the people in a criminal proceeding, the presentment agency in a juvenile delinquency proceeding and a governmental agency or public employer in a civil enforcement action to move to protect the identity, address and any other identifying information of any witness who is an undercover public officer or employee when the disclosure of the identity of such officer or employee would endanger the officer's life or employee's life or compromise his or her continued effectiveness.

2017-S224 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S224

 TITLE OF BILL :  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

 PURPOSE OR GENERAL IDEA OF BILL :

To protect the identity of undercover police officers when they are
required to testify in court.

 SUMMARY OF PROVISIONS :

Section one of this bill amends Civil Rights Law section 50-a to
include within the confidentiality provisions for police personnel
records those records that include the identity of undercover police
officers.

Section two of this bill amends Criminal Procedure Law section 60.15
by adding a new subdivision (3) to create a procedure whereby a
District Attorney may request that an undercover officer's identity be
protected. There would be a rebuttable presumption that an undercover
police officer would be endangered, or his or her effectiveness
compromised, by public disclosure of her identity. Upon request by the
defendant, the Court is required to instruct the jury that no

inference unfavorable to the defendant may be drawn because the
undercover police officer is testifying under a pseudonym or form of
any other similar protective measure. Additionally, the District
Attorney is allowed to ask the court for additional measures to
protect the police officer's identity, if necessary. These requests
would continue to be governed by standards articulated by the United
States Supreme Court in Waller v. Georgia, 467 U.S. 39,48 (1984).

Section three of this bill amends Family Court Act by adding a new
section 343.6 to create a procedure whereby the presentment agency may
request that the identity of a police officer or other public employee
who performed his or her official duties in an undercover or covert
capacity be protected when such officer or employee is called as a
witness. There would be a rebuttable presumption that an undercover
police officer or public employee would be endangered, or his or her
effectiveness compromised, by public disclosure of her identity.
Additionally, the presentment agency is allowed to ask the court for
additional measures to protect the police officer or public employee's
identity, if necessary. These requests would continue to be governed
by standards articulated by the United States Supreme Court in Waller
v. Georgia, 467 U.S. 39,48 (1984).

Section four of this bill amends the Civil Practice Law and Rules to
add a new rule 4516-a to create a procedure whereby a governmental
entity or a public employer may request that the identity of a police
officer or other employee who performed his or her official duties in
an undercover or covert capacity be protected when such officer or
employee is called as a witness in a civil enforcement action brought
by a governmental agency. There would be a rebuttable presumption that
the undercover police officer or employee would be endangered, or his
or her effectiveness compromised, by public disclosure of her
identity. Upon request by the party against whom the action has been
brought, the Court is required to instruct the jury that no inference
unfavorable to the defendant may be drawn because the undercover
police officer or employee is testifying under a pseudonym or form of
any other similar protective measure. Additionally, the governmental
agency or public employer is allowed to ask the court for additional
measures to protect the police officer or public employee's identity,
if necessary. These requests would continue to be governed by

standards articulated by the United States Supreme Court in Waller v.
Georgia, 467 U.S. 39,48 (1984).

Section five of this bill provides a severability clause providing
that should any portion of this act be deemed to be invalid by a Court
of competent jurisdiction, the remaining provisions of this act shall
remain in full force and effect.

Section six of this bill provides that this act shall take effect
immediately.

 EXISTING LAW :

Section 50-a of the Civil Rights Law provides that all personnel
records used to evaluate performance towards continued employment or
promotion are to be kept confidential.

 JUSTIFICATION :

Undercover police officers perform their duty under extraordinarily
dangerous circumstances. These brave officers put their safety at risk
to make the city and State of New York safer. The safety of these
officer's loved ones is also sometimes at risk as a result of their
dangerous work.

Tragically, too many have been murdered, shot, stabbed and beaten by
narcotics dealers. This violence and murder does not stop on the
street; it extends into our judicial system as well, in the form of
witness intimidation. When this intimidation is directed at undercover
police officers, it undermines the efforts of law enforcement to
penetrate criminal drug gangs and obtain the evidence necessary to put
their leaders and operatives behind bars. Currently, state law does
not do enough to secure the availability of one of the most important
and effective sources of this evidence is the testimony of undercover
police officers. This bill changes that by giving greater protection
to the identity of undercover police officers that are called upon to
testify in court.

 PRIOR LEGISLATIVE HISTORY :

2016: S.1467 - Passed the Senate
2015: S.1467 - Passed the Senate
2014: S.2174 - Passed the Senate
2013: S.2174 - Passed the Senate
2012: S.1751-A - Passed the Senate
2011: S.1751 - Passed the Senate
2009-10: S.2011 - Referred to Codes
2007-8: S.5355-A - Referred to Codes
2005-6: S.1870-A - Passed the Senate both years

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect on the thirtieth day after it shall have
become a law

2017-S224 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    224
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2017
                                ___________
 
 Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
   printed to be committed 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD04148-01-7

 S. 224                              2
 
 mandated by lawful court order.  FOR PURPOSES OF THIS SECTION, PERSONNEL
 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.

 S. 224                              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.

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