S T A T E   O F   N E W   Y O R K
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                                  2139

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

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:

  Section 1. Subdivision 1 of section 50-a of the civil rights  law,  as
amended  by  section 53 of subpart B of part C of chapter 62 of the laws
of 2011, 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  shall  be
considered  confidential 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  except  as  may  be
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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD02555-01-3

A. 2139                             2

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

A. 2139                             3

  S 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.
  S 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.
  S 6. This act shall take effect immediately.