S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    257
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              January 5, 2017
                                ___________
 
 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:
 
   Section  1.  The  criminal  procedure  law  is amended by adding a new
 section 60.23 to read as follows:
 § 60.23 RULES OF EVIDENCE; CONFIDENTIAL INFORMANTS.
   1.   AS USED IN THIS SECTION,  THE  FOLLOWING  TERMS  SHALL  HAVE  THE
 FOLLOWING MEANINGS:
   (A)  "CONFIDENTIAL INFORMANT" MEANS A PERSON WHO COOPERATES WITH A LAW
 ENFORCEMENT AGENCY CONFIDENTIALLY IN ORDER TO PROTECT THE PERSON OR  THE
 AGENCY'S INTELLIGENCE GATHERING OR INVESTIGATIVE EFFORTS AND:
   (I)  SEEKS  TO  AVOID  ARREST  OR PROSECUTION FOR A CRIME, OR MITIGATE
 PUNISHMENT FOR A CRIME IN WHICH A SENTENCE WILL BE OR HAS BEEN  IMPOSED;
 AND
   (II) IS ABLE, BY REASON OF HIS OR HER FAMILIARITY OR CLOSE ASSOCIATION
 WITH SUSPECTED CRIMINALS, TO:
   (A) MAKE A CONTROLLED BUY OR CONTROLLED SALE OF CONTRABAND, CONTROLLED
 SUBSTANCES,  OR  OTHER  ITEMS  THAT  ARE MATERIAL TO A CRIMINAL INVESTI-
 GATION;
   (B) SUPPLY REGULAR OR CONSTANT INFORMATION ABOUT SUSPECTED  OR  ACTUAL
 CRIMINAL ACTIVITIES TO A LAW ENFORCEMENT AGENCY; OR
   (C) OTHERWISE PROVIDE INFORMATION IMPORTANT TO ONGOING CRIMINAL INTEL-
 LIGENCE GATHERING OR CRIMINAL INVESTIGATIVE EFFORTS.
   (B)  "CONTROLLED  BUY"  MEANS  THE  PURCHASE OF CONTRABAND, CONTROLLED
 SUBSTANCES, OR OTHER ITEMS THAT ARE MATERIAL TO A CRIMINAL INVESTIGATION
 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.
                                                            LBD01690-01-7
              

 A. 257                              2
 
 IPATED IN BY LAW ENFORCEMENT PERSONNEL WITH THE KNOWLEDGE OF A CONFIDEN-
 TIAL INFORMANT.
   (C)  "CONTROLLED  SALE"  MEANS  THE    SALE  OF CONTRABAND, CONTROLLED
 SUBSTANCES, OR OTHER ITEMS THAT ARE MATERIAL TO A CRIMINAL INVESTIGATION
 TO A TARGET OFFENDER WHICH IS INITIATED, MANAGED, OVERSEEN,  OR  PARTIC-
 IPATED IN BY LAW ENFORCEMENT PERSONNEL WITH THE KNOWLEDGE OF A CONFIDEN-
 TIAL INFORMANT.
   (D) "LAW ENFORCEMENT AGENCY" MEANS ANY AGENCY HAVING A PRIMARY MISSION
 OF  PREVENTING  AND  DETECTING  CRIME  AND THE ENFORCEMENT OF THE PENAL,
 CRIMINAL, TRAFFIC, OR HIGHWAY LAWS OF THE STATE AND THAT IN  FURTHERANCE
 OF THAT PRIMARY MISSION EMPLOYS LAW ENFORCEMENT OFFICERS.
   (E)  "TARGET  OFFENDER"  MEANS THE PERSON SUSPECTED BY LAW ENFORCEMENT
 PERSONNEL TO BE IMPLICATED IN CRIMINAL  ACTS  BY  THE  ACTIVITIES  OF  A
 CONFIDENTIAL INFORMANT.
   2. A LAW ENFORCEMENT AGENCY THAT USES CONFIDENTIAL INFORMANTS SHALL:
   (A)  INFORM  EACH  PERSON  WHO IS REQUESTED TO SERVE AS A CONFIDENTIAL
 INFORMANT THAT THE AGENCY CANNOT PROMISE INDUCEMENTS SUCH AS A GRANT  OF
 IMMUNITY,  DROPPED OR REDUCED CHARGES, OR REDUCED SENTENCES OR PLACEMENT
 ON PROBATION IN EXCHANGE FOR SERVING AS A CONFIDENTIAL INFORMANT.
   (B) INFORM EACH PERSON WHO IS REQUESTED TO  SERVE  AS  A  CONFIDENTIAL
 INFORMANT  THAT  THE  VALUE  OF  HIS OR HER ASSISTANCE AS A CONFIDENTIAL
 INFORMANT AND ANY EFFECT THAT ASSISTANCE MAY HAVE  ON  PENDING  CRIMINAL
 MATTERS CAN BE DETERMINED ONLY BY THE APPROPRIATE LEGAL AUTHORITY.
   (C)  EACH  PERSON  WHO IS SOLICITED TO ACT AS A CONFIDENTIAL INFORMANT
 MUST BE GIVEN THE OPPORTUNITY  TO  CONSULT  WITH  LEGAL  COUNSEL  BEFORE
 ENTERING  INTO  A SUBSTANTIAL ASSISTANCE AGREEMENT. IF THE PERSON IS NOT
 REPRESENTED BY LEGAL COUNSEL AT THE TIME OF THE  SOLICITATION,  THE  LAW
 ENFORCEMENT AGENCY MUST ADVISE THE PERSON OF HIS OR HER RIGHT TO CONSULT
 WITH  LEGAL  COUNSEL  BEFORE  ENTERING  INTO  THE SUBSTANTIAL ASSISTANCE
 AGREEMENT.
   (D) ENSURE THAT ALL PERSONNEL WHO ARE INVOLVED IN THE USE OR  RECRUIT-
 MENT OF CONFIDENTIAL INFORMANTS ARE TRAINED IN THE LAW ENFORCEMENT AGEN-
 CY'S POLICIES AND PROCEDURES. THE AGENCY SHALL KEEP DOCUMENTATION DEMON-
 STRATING THE DATE OF SUCH TRAINING.
   (E)  ADOPT POLICIES AND PROCEDURES THAT ASSIGN THE HIGHEST PRIORITY IN
 OPERATIONAL DECISIONS AND ACTIONS TO THE PRESERVATION OF THE  SAFETY  OF
 CONFIDENTIAL  INFORMANTS,  LAW  ENFORCEMENT PERSONNEL, TARGET OFFENDERS,
 AND THE PUBLIC.
   3. A LAW ENFORCEMENT AGENCY THAT USES  CONFIDENTIAL  INFORMANTS  SHALL
 ESTABLISH  POLICIES  AND  PROCEDURES ADDRESSING THE RECRUITMENT, CONTROL
 AND USE OF CONFIDENTIAL INFORMANTS. THE POLICIES  AND  PROCEDURES  SHALL
 STATE THE:
   (A)  INFORMATION  THAT  THE  LAW  ENFORCEMENT  AGENCY  SHALL  MAINTAIN
 CONCERNING EACH CONFIDENTIAL INFORMANT;
   (B) GENERAL GUIDELINES FOR HANDLING CONFIDENTIAL INFORMANTS;
   (C)  PROCESS  TO  ADVISE  A  CONFIDENTIAL  INFORMANT  OF   CONDITIONS,
 RESTRICTIONS,  AND PROCEDURES ASSOCIATED WITH PARTICIPATING IN THE AGEN-
 CY'S INVESTIGATIVE OR INTELLIGENCE GATHERING ACTIVITIES;
   (D) DESIGNATED SUPERVISORY OR COMMAND LEVEL REVIEW  AND  OVERSIGHT  IN
 THE USE OF A CONFIDENTIAL INFORMANT;
   (E) LIMITS OR RESTRICTIONS ON OFF-DUTY ASSOCIATION OR SOCIAL RELATION-
 SHIPS  BY  AGENCY  PERSONNEL  INVOLVED  IN INVESTIGATIVE OR INTELLIGENCE
 GATHERING WITH CONFIDENTIAL INFORMANTS;
   (F) GUIDELINES TO DEACTIVATE CONFIDENTIAL INFORMANTS, INCLUDING GUIDE-
 LINES FOR DEACTIVATING COMMUNICATIONS WITH CONFIDENTIAL INFORMANTS; AND

 A. 257                              3
 
   (G) LEVEL OF SUPERVISORY APPROVAL REQUIRED BEFORE A JUVENILE  IS  USED
 AS A CONFIDENTIAL INFORMANT.
   4.  A  LAW  ENFORCEMENT AGENCY THAT USES CONFIDENTIAL INFORMANTS SHALL
 ESTABLISH POLICIES AND PROCEDURES TO ASSESS THE SUITABILITY OF  USING  A
 PERSON  AS A CONFIDENTIAL INFORMANT BY CONSIDERING THE MINIMUM FOLLOWING
 FACTORS:
   (A) THE PERSON'S AGE, MATURITY, YOUTHFUL OFFENDER STATUS,  AND  MENTAL
 CAPACITY  IF SUCH PERSON IS MENTALLY DISABLED AS SUCH TERM IS DEFINED IN
 SUBDIVISION THREE OF SECTION 1.03 OF THE MENTAL HYGIENE LAW;
   (B) THE RISK THE PERSON POSES TO ADVERSELY AFFECT A PRESENT OR  POTEN-
 TIAL INVESTIGATION OR PROSECUTION;
   (C) THE EFFECT UPON AGENCY EFFORTS THAT THE DISCLOSURE OF THE PERSON'S
 COOPERATION IN THE COMMUNITY MAY HAVE;
   (D)  WHETHER  THE  PERSON  IS  A  SUBSTANCE ABUSER OR HAS A HISTORY OF
 SUBSTANCE ABUSE OR IS IN A COURT-SUPERVISED DRUG TREATMENT PROGRAM;
   (E) THE RISK OF PHYSICAL HARM TO THE  PERSON,  HIS  OR  HER  IMMEDIATE
 FAMILY,  OR  CLOSE  ASSOCIATES  AS  A RESULT OF PROVIDING INFORMATION OR
 ASSISTANCE, OR UPON THE DISCLOSURE OF THE  PERSON'S  ASSISTANCE  TO  THE
 COMMUNITY;
   (F) WHETHER THE PERSON HAS SHOWN ANY INDICATION OF EMOTIONAL INSTABIL-
 ITY, UNRELIABILITY OR OF FURNISHING FALSE INFORMATION;
   (G) THE PERSON'S CRIMINAL HISTORY OR PRIOR CRIMINAL RECORD; AND
   (H)  WHETHER  THE  USE  OF  THE PERSON IS IMPORTANT TO OR VITAL TO THE
 SUCCESS OF AN INVESTIGATION.
   5. A LAW ENFORCEMENT AGENCY THAT USES  CONFIDENTIAL  INFORMANTS  SHALL
 ESTABLISH WRITTEN SECURITY PROCEDURES THAT, AT A MINIMUM:
   (A)  PROVIDE  FOR  THE SECURED RETENTION OF ANY RECORDS RELATED TO THE
 LAW ENFORCEMENT AGENCY'S CONFIDENTIAL SOURCES, INCLUDING ACCESS TO FILES
 IDENTIFYING THE IDENTITY OF CONFIDENTIAL SOURCES;
   (B) LIMIT AVAILABILITY TO RECORDS RELATING TO CONFIDENTIAL  INFORMANTS
 TO  THOSE WITHIN THE LAW ENFORCEMENT AGENCY OR LAW ENFORCEMENT COMMUNITY
 HAVING A NEED TO KNOW OR REVIEW THOSE RECORDS, OR TO THOSE WHOSE  ACCESS
 HAS BEEN REQUIRED BY COURT PROCESS OR ORDER;
   (C)  REQUIRE NOTATION OF EACH PERSON WHO ACCESSES SUCH RECORDS AND THE
 DATE THAT THE RECORDS ARE ACCESSED;
   (D) PROVIDE FOR REVIEW AND OVERSIGHT BY THE LAW ENFORCEMENT AGENCY  TO
 ENSURE THAT THE SECURITY PROCEDURES ARE FOLLOWED; AND
   (E)  DEFINE  THE  PROCESS  BY  WHICH RECORDS CONCERNING A CONFIDENTIAL
 INFORMANT MAY BE LAWFULLY DESTROYED.
   6. A STATE OR LOCAL LAW  ENFORCEMENT  AGENCY  THAT  USES  CONFIDENTIAL
 INFORMANTS SHALL PERFORM A PERIODIC REVIEW OF ACTUAL AGENCY CONFIDENTIAL
 INFORMANT  PRACTICES TO ENSURE CONFORMITY WITH THE AGENCY'S POLICIES AND
 PROCEDURES AND THIS SECTION.
   7. THE PROVISIONS OF THIS SECTION AND POLICIES AND PROCEDURES  ADOPTED
 PURSUANT  TO  THIS  SECTION  DO  NOT GRANT ANY RIGHT OR ENTITLEMENT TO A
 CONFIDENTIAL INFORMANT OR A PERSON WHO IS REQUESTED TO BE A CONFIDENTIAL
 INFORMANT, AND ANY FAILURE TO ABIDE BY THIS SECTION MAY  NOT  BE  RELIED
 UPON TO CREATE ANY ADDITIONAL RIGHT, SUBSTANTIVE OR PROCEDURAL, ENFORCE-
 ABLE AT LAW BY A DEFENDANT IN A CRIMINAL PROCEEDING.
   § 2. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.