S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2796
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 20, 2015
                                      ___________
       Introduced by M. of A. SIMOTAS, COLTON, HOOPER -- 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:
    1    Section 1. Subdivision 1 of section 50-a of the civil rights  law,  as
    2  amended  by  chapter  516  of  the  laws  of 2014, is amended to read as
    3  follows:
    4    1. All personnel records used to evaluate performance toward continued
    5  employment or promotion, under the  control  of  any  police  agency  or
    6  department  of  the state or any political subdivision thereof including
    7  authorities or agencies maintaining police forces of individuals defined
    8  as police officers in section 1.20 of the  criminal  procedure  law  and
    9  such  personnel records under the control of a sheriff's department or a
   10  department of correction of individuals employed as correction  officers
   11  and  such  personnel records under the control of a paid fire department
   12  or    force    of    individuals    employed    as    firefighters    or
   13  firefighter/paramedics  and  such personnel records under the control of
   14  the department of corrections and community supervision for  individuals
   15  defined  as  peace  officers  pursuant  to subdivisions twenty-three and
   16  twenty-three-a of section 2.10 of the criminal procedure  law  and  such
   17  personnel  records under the control of a probation department for indi-
   18  viduals defined as peace officers pursuant to subdivision twenty-four of
   19  section 2.10 of the criminal procedure law shall be considered confiden-
   20  tial and not subject to inspection or review without the express written
   21  consent of  such  police  officer,  firefighter,  firefighter/paramedic,
   22  correction officer or peace officer within the department of corrections
   23  and  community  supervision  or  probation  department  except as may be
   24  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.
                                                                  LBD02262-02-5
       A. 2796                             2
    1  RECORDS SHALL INCLUDE ANY REPORT, PAPER, PICTURE, PHOTOGRAPH, COURT FILE
    2  OR OTHER DOCUMENT, IN THE CUSTODY OR POSSESSION OF ANY PUBLIC OFFICER OR
    3  EMPLOYEE,  WHICH TENDS TO IDENTIFY BY NAME OR IMAGE AN INDIVIDUAL WHO IS
    4  PERFORMING  OR  HAS  PERFORMED OFFICIAL DUTIES IN A COVERT OR UNDERCOVER
    5  CAPACITY AND WHOSE PERSONNEL  RECORDS  ARE  OTHERWISE  COVERED  BY  THIS
    6  SUBDIVISION.
    7    S  2. Section 60.15 of the criminal procedure law is amended by adding
    8  a new subdivision 3 to read as follows:
    9    3. WHEN A PUBLIC OFFICER OR EMPLOYEE, INCLUDING BUT NOT LIMITED  TO  A
   10  POLICE  OFFICER AS DEFINED IN SECTION 1.20 OF THIS PART OR A PEACE OFFI-
   11  CER AS DEFINED IN SECTION 2.10  OF  THIS  PART,  IS  PERFORMING  OR  HAS
   12  PERFORMED  OFFICIAL  DUTIES  IN  A  COVERT OR UNDERCOVER CAPACITY AND IS
   13  CALLED AS A WITNESS IN A CRIMINAL PROCEEDING:
   14    (A) THE PEOPLE MAY MAKE A REQUEST OF THE COURT THAT  THE  IDENTITY  OF
   15  THE  WITNESS BE PROTECTED. THERE SHALL BE A PRESUMPTION THAT THE WITNESS
   16  WOULD BE ENDANGERED OR HIS OR HER EFFECTIVENESS COMPROMISED  IF  HIS  OR
   17  HER  IDENTITY  IS  DISCLOSED  AND  THAT THEREFORE THE PEOPLE HAVE MADE A
   18  SHOWING THAT THE WITNESS SHOULD BE EXCUSED FROM  PROVIDING  HIS  OR  HER
   19  IDENTITY.  THE  DEFENDANT  MAY  THEREUPON  SEEK TO REBUT THE PRESUMPTION
   20  AND/OR DEMONSTRATE THE MATERIALITY OF  THE  WITNESS'S  IDENTITY  TO  THE
   21  ISSUE  OF  GUILT OR INNOCENCE. IF THE PRESUMPTION HAS NOT BEEN REBUTTED,
   22  THE COURT SHALL THEN BALANCE THE INTERESTS AND IF IT DETERMINES THAT THE
   23  NEED OF THE PUBLIC OFFICER OR EMPLOYEE WITNESS FOR ANONYMITY EXCEEDS THE
   24  DEFENDANT'S NEED TO  OBTAIN  THE  WITNESS'S  IDENTITY  FOR  PURPOSES  OF
   25  CROSS-EXAMINATION, THE COURT SHALL DIRECT THAT THE WITNESS TESTIFY UNDER
   26  A PSEUDONYM SUCH AS A SHIELD NUMBER.
   27    (B)  IF REQUESTED BY THE PEOPLE, THE COURT SHALL TAKE SUCH OTHER MEAS-
   28  URES AS ARE NECESSARY, CONSISTENT WITH RIGHTS OF THE DEFENDANT, TO SAFE-
   29  GUARD THE IDENTITY OF THE WITNESS.
   30    (C) UPON REQUEST OF THE DEFENDANT DURING A JURY TRIAL, THE COURT SHALL
   31  INSTRUCT THE JURY THAT THE USE OF A PSEUDONYM OR  ANY  OTHER  ADDITIONAL
   32  MEASURE  TO  PROTECT  THE  IDENTITY  OF THE WITNESS IS NOT A FACTOR FROM
   33  WHICH AN INFERENCE UNFAVORABLE TO THE DEFENDANT MAY BE DRAWN.
   34    S 3. The family court act is amended by adding a new section 343.6  to
   35  read as follows:
   36    S  343.6.  RULES  OF  EVIDENCE; TESTIMONY GIVEN BY A PUBLIC OFFICER OR
   37  EMPLOYEE. WHEN A PUBLIC OFFICER OR EMPLOYEE, INCLUDING BUT  NOT  LIMITED
   38  TO A POLICE OFFICER AS DEFINED IN SECTION 1.20 OF THE CRIMINAL PROCEDURE
   39  LAW  OR  A  PEACE  OFFICER  AS  DEFINED  IN SECTION 2.10 OF SUCH LAW, IS
   40  PERFORMING OR HAS PERFORMED OFFICIAL DUTIES IN A  COVERT  OR  UNDERCOVER
   41  CAPACITY AND IS CALLED AS A WITNESS IN A DELINQUENCY PROCEEDING:
   42    1.  THE  PRESENTMENT  AGENCY  MAY MAKE A REQUEST OF THE COURT THAT THE
   43  IDENTITY OF THE WITNESS BE PROTECTED. THERE SHALL BE A PRESUMPTION  THAT
   44  THE  WITNESS WOULD BE ENDANGERED OR HIS OR HER EFFECTIVENESS COMPROMISED
   45  IF HIS OR HER IDENTITY IS DISCLOSED AND THAT THEREFORE  THE  PRESENTMENT
   46  AGENCY  HAS  MADE  A  SHOWING  THAT  THE  WITNESS SHOULD BE EXCUSED FROM
   47  PROVIDING HIS OR HER IDENTITY.   THE RESPONDENT MAY  THEREUPON  SEEK  TO
   48  REBUT   THE  PRESUMPTION  AND/OR  DEMONSTRATE  THE  MATERIALITY  OF  THE
   49  WITNESS'S IDENTITY TO THE ISSUE OF GUILT OR INNOCENCE. IF  THE  PRESUMP-
   50  TION  HAS  NOT BEEN REBUTTED, THE COURT SHALL THEN BALANCE THE INTERESTS
   51  AND IF IT DETERMINES THAT THE NEED OF THE  PUBLIC  OFFICER  OR  EMPLOYEE
   52  WITNESS  FOR  ANONYMITY  EXCEEDS  THE  RESPONDENT'S  NEED  TO OBTAIN THE
   53  WITNESS'S IDENTITY FOR PURPOSES OF CROSS-EXAMINATION,  THE  COURT  SHALL
   54  DIRECT  THAT  THE  WITNESS  TESTIFY  UNDER  A PSEUDONYM SUCH AS A SHIELD
   55  NUMBER.
       A. 2796                             3
    1    2. IF REQUESTED BY THE PRESENTMENT AGENCY, THE COURT SHALL  TAKE  SUCH
    2  OTHER  MEASURES AS ARE NECESSARY, CONSISTENT WITH RIGHTS OF THE RESPOND-
    3  ENT, TO SAFEGUARD THE IDENTITY OF THE WITNESS.
    4    S  4. The civil practice law and rules is amended by adding a new Rule
    5  4516-a to read as follows:
    6    RULE 4516-A. TESTIMONY BY CERTAIN PUBLIC OFFICERS AND EMPLOYEES.  WHEN
    7  A PUBLIC OFFICER OR EMPLOYEE, INCLUDING BUT  NOT  LIMITED  TO  A  POLICE
    8  OFFICER  AS  DEFINED  IN SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW OR A
    9  PEACE OFFICER AS DEFINED IN SECTION 2.10 OF SUCH LAW, IS  PERFORMING  OR
   10  HAS  PERFORMED OFFICIAL DUTIES IN A COVERT OR UNDERCOVER CAPACITY AND IS
   11  CALLED AS A WITNESS IN A CIVIL ENFORCEMENT ACTION BROUGHT BY  A  GOVERN-
   12  MENTAL ENTITY:
   13    (A) SUCH GOVERNMENTAL ENTITY OR THE PUBLIC EMPLOYER OF THE WITNESS MAY
   14  MAKE  A  REQUEST  OF  THE  COURT  THAT  THE  IDENTITY  OF THE WITNESS BE
   15  PROTECTED. THERE SHALL BE A PRESUMPTION THAT THE WITNESS WOULD BE ENDAN-
   16  GERED OR HIS OR HER EFFECTIVENESS COMPROMISED IF HIS OR HER IDENTITY  IS
   17  DISCLOSED  AND  THAT  THEREFORE THE GOVERNMENT ENTITY HAS MADE A SHOWING
   18  THAT THE WITNESS SHOULD BE EXCUSED FROM PROVIDING HIS OR  HER  IDENTITY.
   19  THE RESPONDENT MAY THEREUPON SEEK TO REBUT THE PRESUMPTION AND/OR DEMON-
   20  STRATE  THE  MATERIALITY OF THE WITNESS'S IDENTITY TO THE ISSUE OF GUILT
   21  OR INNOCENCE. IF THE PRESUMPTION HAS NOT BEEN REBUTTED, THE COURT  SHALL
   22  THEN  BALANCE  THE  INTERESTS  AND IF IT DETERMINES THAT THE NEED OF THE
   23  PUBLIC OFFICER OR EMPLOYEE WITNESS FOR ANONYMITY  EXCEEDS  THE  RESPOND-
   24  ENT'S NEED TO OBTAIN THE WITNESS'S IDENTITY FOR PURPOSES OF CROSS-EXAMI-
   25  NATION,  THE COURT SHALL DIRECT THAT THE WITNESS TESTIFY UNDER A PSEUDO-
   26  NYM SUCH AS A SHIELD NUMBER.
   27    (B) IF REQUESTED BY SUCH GOVERNMENTAL ENTITY OR SUCH PUBLIC  EMPLOYER,
   28  THE  COURT  SHALL  TAKE SUCH OTHER MEASURES AS ARE NECESSARY, CONSISTENT
   29  WITH RIGHTS OF THE ADVERSE PARTY,  TO  SAFEGUARD  THE  IDENTITY  OF  THE
   30  WITNESS.
   31    (C)  DURING  A  JURY TRIAL, UPON REQUEST BY THE PARTY AGAINST WHOM THE
   32  ACTION IS BROUGHT, THE COURT SHALL INSTRUCT THE JURY THAT THE USE  OF  A
   33  PSEUDONYM OR ANY OTHER ADDITIONAL MEASURE TO PROTECT THE IDENTITY OF THE
   34  WITNESS  IS  NOT  A  FACTOR  FROM WHICH AN INFERENCE UNFAVORABLE TO SUCH
   35  PARTY MAY BE DRAWN.
   36    (D) NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PROHIBIT  OR  OTHER-
   37  WISE  AFFECT APPROPRIATE MEASURES TO SAFEGUARD THE IDENTITY OF A WITNESS
   38  THAT MAY BE TAKEN IN ANY CIVIL ACTION THAT IS NOT WITHIN  THE  SCOPE  OF
   39  THIS SECTION.
   40    S 5. Severability. If any clause, sentence, paragraph, section or part
   41  of  this act shall be adjudged by any court of competent jurisdiction to
   42  be invalid, the judgment shall not  affect,  impair  or  invalidate  the
   43  remainder thereof, but shall be confined in its operation to the clause,
   44  sentence,  paragraph,  section  or part thereof directly involved in the
   45  controversy in which the judgment shall have been rendered.
   46    S 6. This act shall take effect immediately.