S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3348
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 29, 2021
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed 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-
 IPATED IN BY LAW ENFORCEMENT PERSONNEL WITH THE KNOWLEDGE OF A CONFIDEN-
 TIAL INFORMANT.

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

                                                            LBD03386-01-1

 S. 3348                             2
 
   (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
   (G) LEVEL OF SUPERVISORY APPROVAL REQUIRED BEFORE A JUVENILE  IS  USED
 AS A CONFIDENTIAL INFORMANT.

 S. 3348                             3
 
   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.