S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1072
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                    January 8, 2015
                                      ___________
       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:
    1    Section  1.  The  criminal  procedure  law  is amended by adding a new
    2  section 60.23 to read as follows:
    3  S 60.23 RULES OF EVIDENCE; CONFIDENTIAL INFORMANTS.
    4    1.   AS USED IN THIS SECTION,  THE  FOLLOWING  TERMS  SHALL  HAVE  THE
    5  FOLLOWING MEANINGS:
    6    (A)  "CONFIDENTIAL INFORMANT" MEANS A PERSON WHO COOPERATES WITH A LAW
    7  ENFORCEMENT AGENCY CONFIDENTIALLY IN ORDER TO PROTECT THE PERSON OR  THE
    8  AGENCY'S INTELLIGENCE GATHERING OR INVESTIGATIVE EFFORTS AND:
    9    (I)  SEEKS  TO  AVOID  ARREST  OR PROSECUTION FOR A CRIME, OR MITIGATE
   10  PUNISHMENT FOR A CRIME IN WHICH A SENTENCE WILL BE OR HAS BEEN  IMPOSED;
   11  AND
   12    (II) IS ABLE, BY REASON OF HIS OR HER FAMILIARITY OR CLOSE ASSOCIATION
   13  WITH SUSPECTED CRIMINALS, TO:
   14    (A) MAKE A CONTROLLED BUY OR CONTROLLED SALE OF CONTRABAND, CONTROLLED
   15  SUBSTANCES,  OR  OTHER  ITEMS  THAT  ARE MATERIAL TO A CRIMINAL INVESTI-
   16  GATION;
   17    (B) SUPPLY REGULAR OR CONSTANT INFORMATION ABOUT SUSPECTED  OR  ACTUAL
   18  CRIMINAL ACTIVITIES TO A LAW ENFORCEMENT AGENCY; OR
   19    (C) OTHERWISE PROVIDE INFORMATION IMPORTANT TO ONGOING CRIMINAL INTEL-
   20  LIGENCE GATHERING OR CRIMINAL INVESTIGATIVE EFFORTS.
   21    (B)  "CONTROLLED  BUY"  MEANS  THE  PURCHASE OF CONTRABAND, CONTROLLED
   22  SUBSTANCES, OR OTHER ITEMS THAT ARE MATERIAL TO A CRIMINAL INVESTIGATION
   23  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.
                                                                  LBD02321-01-5
       A. 1072                             2
    1  IPATED IN BY LAW ENFORCEMENT PERSONNEL WITH THE KNOWLEDGE OF A CONFIDEN-
    2  TIAL INFORMANT.
    3    (C)  "CONTROLLED  SALE"  MEANS  THE    SALE  OF CONTRABAND, CONTROLLED
    4  SUBSTANCES, OR OTHER ITEMS THAT ARE MATERIAL TO A CRIMINAL INVESTIGATION
    5  TO A TARGET OFFENDER WHICH IS INITIATED, MANAGED, OVERSEEN,  OR  PARTIC-
    6  IPATED IN BY LAW ENFORCEMENT PERSONNEL WITH THE KNOWLEDGE OF A CONFIDEN-
    7  TIAL INFORMANT.
    8    (D) "LAW ENFORCEMENT AGENCY" MEANS ANY AGENCY HAVING A PRIMARY MISSION
    9  OF  PREVENTING  AND  DETECTING  CRIME  AND THE ENFORCEMENT OF THE PENAL,
   10  CRIMINAL, TRAFFIC, OR HIGHWAY LAWS OF THE STATE AND THAT IN  FURTHERANCE
   11  OF THAT PRIMARY MISSION EMPLOYS LAW ENFORCEMENT OFFICERS.
   12    (E)  "TARGET  OFFENDER"  MEANS THE PERSON SUSPECTED BY LAW ENFORCEMENT
   13  PERSONNEL TO BE IMPLICATED IN CRIMINAL  ACTS  BY  THE  ACTIVITIES  OF  A
   14  CONFIDENTIAL INFORMANT.
   15    2. A LAW ENFORCEMENT AGENCY THAT USES CONFIDENTIAL INFORMANTS SHALL:
   16    (A)  INFORM  EACH  PERSON  WHO IS REQUESTED TO SERVE AS A CONFIDENTIAL
   17  INFORMANT THAT THE AGENCY CANNOT PROMISE INDUCEMENTS SUCH AS A GRANT  OF
   18  IMMUNITY,  DROPPED OR REDUCED CHARGES, OR REDUCED SENTENCES OR PLACEMENT
   19  ON PROBATION IN EXCHANGE FOR SERVING AS A CONFIDENTIAL INFORMANT.
   20    (B) INFORM EACH PERSON WHO IS REQUESTED TO  SERVE  AS  A  CONFIDENTIAL
   21  INFORMANT  THAT  THE  VALUE  OF  HIS OR HER ASSISTANCE AS A CONFIDENTIAL
   22  INFORMANT AND ANY EFFECT THAT ASSISTANCE MAY HAVE  ON  PENDING  CRIMINAL
   23  MATTERS CAN BE DETERMINED ONLY BY THE APPROPRIATE LEGAL AUTHORITY.
   24    (C)  EACH  PERSON  WHO IS SOLICITED TO ACT AS A CONFIDENTIAL INFORMANT
   25  MUST BE GIVEN THE OPPORTUNITY  TO  CONSULT  WITH  LEGAL  COUNSEL  BEFORE
   26  ENTERING  INTO  A SUBSTANTIAL ASSISTANCE AGREEMENT. IF THE PERSON IS NOT
   27  REPRESENTED BY LEGAL COUNSEL AT THE TIME OF THE  SOLICITATION,  THE  LAW
   28  ENFORCEMENT AGENCY MUST ADVISE THE PERSON OF HIS OR HER RIGHT TO CONSULT
   29  WITH  LEGAL  COUNSEL  BEFORE  ENTERING  INTO  THE SUBSTANTIAL ASSISTANCE
   30  AGREEMENT.
   31    (D) ENSURE THAT ALL PERSONNEL WHO ARE INVOLVED IN THE USE OR  RECRUIT-
   32  MENT OF CONFIDENTIAL INFORMANTS ARE TRAINED IN THE LAW ENFORCEMENT AGEN-
   33  CY'S POLICIES AND PROCEDURES. THE AGENCY SHALL KEEP DOCUMENTATION DEMON-
   34  STRATING THE DATE OF SUCH TRAINING.
   35    (E)  ADOPT POLICIES AND PROCEDURES THAT ASSIGN THE HIGHEST PRIORITY IN
   36  OPERATIONAL DECISIONS AND ACTIONS TO THE PRESERVATION OF THE  SAFETY  OF
   37  CONFIDENTIAL  INFORMANTS,  LAW  ENFORCEMENT PERSONNEL, TARGET OFFENDERS,
   38  AND THE PUBLIC.
   39    3. A LAW ENFORCEMENT AGENCY THAT USES  CONFIDENTIAL  INFORMANTS  SHALL
   40  ESTABLISH  POLICIES  AND  PROCEDURES ADDRESSING THE RECRUITMENT, CONTROL
   41  AND USE OF CONFIDENTIAL INFORMANTS. THE POLICIES  AND  PROCEDURES  SHALL
   42  STATE THE:
   43    (A)  INFORMATION  THAT  THE  LAW  ENFORCEMENT  AGENCY  SHALL  MAINTAIN
   44  CONCERNING EACH CONFIDENTIAL INFORMANT;
   45    (B) GENERAL GUIDELINES FOR HANDLING CONFIDENTIAL INFORMANTS;
   46    (C)  PROCESS  TO  ADVISE  A  CONFIDENTIAL  INFORMANT  OF   CONDITIONS,
   47  RESTRICTIONS,  AND PROCEDURES ASSOCIATED WITH PARTICIPATING IN THE AGEN-
   48  CY'S INVESTIGATIVE OR INTELLIGENCE GATHERING ACTIVITIES;
   49    (D) DESIGNATED SUPERVISORY OR COMMAND LEVEL REVIEW  AND  OVERSIGHT  IN
   50  THE USE OF A CONFIDENTIAL INFORMANT;
   51    (E) LIMITS OR RESTRICTIONS ON OFF-DUTY ASSOCIATION OR SOCIAL RELATION-
   52  SHIPS  BY  AGENCY  PERSONNEL  INVOLVED  IN INVESTIGATIVE OR INTELLIGENCE
   53  GATHERING WITH CONFIDENTIAL INFORMANTS;
   54    (F) GUIDELINES TO DEACTIVATE CONFIDENTIAL INFORMANTS, INCLUDING GUIDE-
   55  LINES FOR DEACTIVATING COMMUNICATIONS WITH CONFIDENTIAL INFORMANTS; AND
       A. 1072                             3
    1    (G) LEVEL OF SUPERVISORY APPROVAL REQUIRED BEFORE A JUVENILE  IS  USED
    2  AS A CONFIDENTIAL INFORMANT.
    3    4.  A  LAW  ENFORCEMENT AGENCY THAT USES CONFIDENTIAL INFORMANTS SHALL
    4  ESTABLISH POLICIES AND PROCEDURES TO ASSESS THE SUITABILITY OF  USING  A
    5  PERSON  AS A CONFIDENTIAL INFORMANT BY CONSIDERING THE MINIMUM FOLLOWING
    6  FACTORS:
    7    (A) THE PERSON'S AGE, MATURITY, YOUTHFUL OFFENDER STATUS,  AND  MENTAL
    8  CAPACITY  IF SUCH PERSON IS MENTALLY DISABLED AS SUCH TERM IS DEFINED IN
    9  SUBDIVISION THREE OF SECTION 1.03 OF THE MENTAL HYGIENE LAW;
   10    (B) THE RISK THE PERSON POSES TO ADVERSELY AFFECT A PRESENT OR  POTEN-
   11  TIAL INVESTIGATION OR PROSECUTION;
   12    (C) THE EFFECT UPON AGENCY EFFORTS THAT THE DISCLOSURE OF THE PERSON'S
   13  COOPERATION IN THE COMMUNITY MAY HAVE;
   14    (D)  WHETHER  THE  PERSON  IS  A  SUBSTANCE ABUSER OR HAS A HISTORY OF
   15  SUBSTANCE ABUSE OR IS IN A COURT-SUPERVISED DRUG TREATMENT PROGRAM;
   16    (E) THE RISK OF PHYSICAL HARM TO THE  PERSON,  HIS  OR  HER  IMMEDIATE
   17  FAMILY,  OR  CLOSE  ASSOCIATES  AS  A RESULT OF PROVIDING INFORMATION OR
   18  ASSISTANCE, OR UPON THE DISCLOSURE OF THE  PERSON'S  ASSISTANCE  TO  THE
   19  COMMUNITY;
   20    (F) WHETHER THE PERSON HAS SHOWN ANY INDICATION OF EMOTIONAL INSTABIL-
   21  ITY, UNRELIABILITY OR OF FURNISHING FALSE INFORMATION;
   22    (G) THE PERSON'S CRIMINAL HISTORY OR PRIOR CRIMINAL RECORD; AND
   23    (H)  WHETHER  THE  USE  OF  THE PERSON IS IMPORTANT TO OR VITAL TO THE
   24  SUCCESS OF AN INVESTIGATION.
   25    5. A LAW ENFORCEMENT AGENCY THAT USES  CONFIDENTIAL  INFORMANTS  SHALL
   26  ESTABLISH WRITTEN SECURITY PROCEDURES THAT, AT A MINIMUM:
   27    (A)  PROVIDE  FOR  THE SECURED RETENTION OF ANY RECORDS RELATED TO THE
   28  LAW ENFORCEMENT AGENCY'S CONFIDENTIAL SOURCES, INCLUDING ACCESS TO FILES
   29  IDENTIFYING THE IDENTITY OF CONFIDENTIAL SOURCES;
   30    (B) LIMIT AVAILABILITY TO RECORDS RELATING TO CONFIDENTIAL  INFORMANTS
   31  TO  THOSE WITHIN THE LAW ENFORCEMENT AGENCY OR LAW ENFORCEMENT COMMUNITY
   32  HAVING A NEED TO KNOW OR REVIEW THOSE RECORDS, OR TO THOSE WHOSE  ACCESS
   33  HAS BEEN REQUIRED BY COURT PROCESS OR ORDER;
   34    (C)  REQUIRE NOTATION OF EACH PERSON WHO ACCESSES SUCH RECORDS AND THE
   35  DATE THAT THE RECORDS ARE ACCESSED;
   36    (D) PROVIDE FOR REVIEW AND OVERSIGHT BY THE LAW ENFORCEMENT AGENCY  TO
   37  ENSURE THAT THE SECURITY PROCEDURES ARE FOLLOWED; AND
   38    (E)  DEFINE  THE  PROCESS  BY  WHICH RECORDS CONCERNING A CONFIDENTIAL
   39  INFORMANT MAY BE LAWFULLY DESTROYED.
   40    6. A STATE OR LOCAL LAW  ENFORCEMENT  AGENCY  THAT  USES  CONFIDENTIAL
   41  INFORMANTS SHALL PERFORM A PERIODIC REVIEW OF ACTUAL AGENCY CONFIDENTIAL
   42  INFORMANT  PRACTICES TO ENSURE CONFORMITY WITH THE AGENCY'S POLICIES AND
   43  PROCEDURES AND THIS SECTION.
   44    7. THE PROVISIONS OF THIS SECTION AND POLICIES AND PROCEDURES  ADOPTED
   45  PURSUANT  TO  THIS  SECTION  DO  NOT GRANT ANY RIGHT OR ENTITLEMENT TO A
   46  CONFIDENTIAL INFORMANT OR A PERSON WHO IS REQUESTED TO BE A CONFIDENTIAL
   47  INFORMANT, AND ANY FAILURE TO ABIDE BY THIS SECTION MAY  NOT  BE  RELIED
   48  UPON TO CREATE ANY ADDITIONAL RIGHT, SUBSTANTIVE OR PROCEDURAL, ENFORCE-
   49  ABLE AT LAW BY A DEFENDANT IN A CRIMINAL PROCEEDING.
   50    S 2. This act shall take effect on the first of November next succeed-
   51  ing the date on which it shall have become a law.