NY State Senate Bill 2023-S166

Senate Bill S166

2023-2024 Legislative Session

Requires the prosecution to disclose to the defendant certain information relating to jailhouse informants; requires prosecutors to notify victims of the informant's crimes in certain circumstances

download bill text pdf

Current Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2024	referred to codes
Jan 04, 2023	referred to codes

2023-S166 (ACTIVE) - Details

See Assembly Version of this Bill:: A6847
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Add §245.21, CP L; amd §642, Exec L
Versions Introduced in 2021-2022 Legislative Session:: S8342

2023-S166 (ACTIVE) - Summary

Requires the prosecution to disclose to defense counsel certain information relating to jailhouse informants; requires prosecutors to notify victims of the informant's crimes if the prosecutor has offered the informant a benefit in exchange for testimony or other cooperation.

2023-S166 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S166

SPONSOR: GIANARIS
 
TITLE OF BILL:

An act to amend the criminal procedure law and the executive law, in
relation to requiring the prosecution to disclose to the defendant
certain information relating to jailhouse informants; and to require
prosecutors to notify victims of the informant's crimes in certain
circumstances

 
PURPOSE:

The purpose of this bill is to provide transparency surrounding jail-
house informants' statements and benefits, to limit when these benefits
can be offered, and to require that victims in crimes jailhouse infor-
mants have been involved in are notified of any offered, promised, or
provided benefit(s) they may receive.

 
SUMMARY OF PROVISIONS:

Section one, subsection one sets forth definitions of the terms "bene-

fit" and "jailhouse informant."

Subsection two requires that prosecutors make disclosures that are rele-
vant to a jailhouse informant's testimony, and lists out the information
that must be disclosed.

Subsection three provides that counsel for the defense is to be provided
the opportunity to depose jailhouse informants prior to entering into
plea negotiations or the commencement of trial or other proceedings.

Subsection four prohibits prosecutors from offering benefits to certain
jailhouse informants dependent upon the type of crime.

Subsection five requires prosecuting attorneys to receive judicial
consent to reduce or dismiss any pending charges for jailhouse
informant's testimony or other cooperation.

Subsection six requires prosecuting attorneys using information provided
by jailhouse informants to maintain such records and report the contents
to the Division of Criminal Justice Services, who shall maintain a data-
base that discloses this information to prosecuting attorneys and
defense attorneys upon request.

Section two sets forth requirements for prosecutors to notify jailhouse
informants' victims of benefits such informants have been offered, prom-
ised, or provided.

Section three sets the effective date.

 
EXISTING LAW:

Click here

 
JUSTIFICATION:

As of December 2022, approximately 3,332 exonerations have occurred in
the United States for those who were convicted of a crime they did not
commit. This has led to a loss of over 28,450 years for those waiting to
have their wrongful convictions addressed. One of the contributing
factors to wrongful convictions is the use of jailhouse informant testi-
mony.  According to data analyzed by the Innocence Project, such testi-
mony accounts for 17% of DNA exoneration cases.

Jailhouse informants have strong incentives to provide fabricated or
misleading information to prosecutors in exchange for benefits such as
plea bargains, bail agreements, the reduction or modification of
sentences, and other forms of leniency in exchange for their testimony.
As a matter of transparency, it is essential that these incentives be
disclosed to defense counsel, and in turn judges and juries, as this
information provides important context. In fact, according to a 2018
study (Key et. al., 2018), over 80% of student and community partic-
ipants believed that jurors should know if jailhouse informants receive
incentives to testify. Ensuring that information surrounding jailhouse
informants' testimony and benefits is available to defense counsel is
imperative, and will provide increased protections against wrongful
convictions in New York State.

To date, five states (Texas, Illinois, Connecticut, Minnesota, and
Nebraska) have enacted laws that require prosecutors to disclose agree-
ments made with jailhouse informants and other relevant information. By
requiring that prosecutor's disclose agreements between the government
and jailhouse informants, we can improve transparency in our criminal
legal system.

 
LEGISLATIVE HISTORY:

2022: Died in Codes

 
FISCAL IMPLICATIONS:

To be determined

 
LOCAL FISCAL IMPLICATIONS:

Click here

 
EFFECTIVE DATE:
This act shall take effect 90 days after which it shall have become a
law and apply to criminal actions commenced on or after this date.

2023-S166 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    166
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 4, 2023
                                ___________
 
 Introduced  by Sen. GIANARIS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law and  the  executive  law,  in
   relation  to  requiring  the  prosecution to disclose to the defendant
   certain information relating to jailhouse informants; and  to  require
   prosecutors  to  notify  victims  of the informant's crimes in certain
   circumstances
 
   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 245.21 to read as follows:
 § 245.21 DISCLOSURE; JAILHOUSE DEFENDANTS.
   1. DEFINITIONS. AS USED IN THIS SECTION,  THE  FOLLOWING  TERMS  SHALL
 HAVE THE FOLLOWING MEANINGS:
   (A) "BENEFIT" MEANS ANY PLEA BARGAIN, BAIL OR SECURING ORDER CONSIDER-
 ATION,  REDUCTION  OR  MODIFICATION  OF  SENTENCE OR ANY OTHER LENIENCY,
 IMMUNITY, FINANCIAL PAYMENT, REWARD OR AMELIORATION OF CURRENT OR FUTURE
 CONDITIONS OF INCARCERATION OFFERED OR PROVIDED TO A JAILHOUSE INFORMANT
 OR THIRD PARTY IN CONNECTION WITH, OR IN EXCHANGE FOR, TESTIMONY THAT IS
 OFFERED OR PROVIDED.
   (B) "JAILHOUSE INFORMANT" MEANS A PERSON WHO IS  INCARCERATED  AT  THE
 TIME  THAT  HE OR SHE OFFERS OR PROVIDES TESTIMONY, WHETHER OR NOT IT IS
 PRESENTED IN COURT PROCEEDINGS, CONCERNING STATEMENTS MADE BY  A  PERSON
 SUSPECTED AS A PERPETRATOR OF AN OFFENSE OR A DEFENDANT.
   2.  IN  ANY  CRIMINAL  TRIAL  OR  PROCEEDING  IN WHICH THE PROSECUTION
 INTENDS TO CALL A JAILHOUSE INFORMANT TO TESTIFY,  IN  ADDITION  TO  ANY
 DISCOVERY  OR DISCLOSURE OBLIGATIONS REQUIRED PURSUANT TO THE PROVISIONS
 OF THIS ARTICLE OR ANY OTHER PROVISION OF  LAW,  THE  PROSECUTION  SHALL
 OBTAIN AND DISCLOSE TO THE DEFENDANT THE FOLLOWING INFORMATION:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01857-01-3

 S. 166                              2
 
   (A)  THE  COMPLETE  CRIMINAL  HISTORY OF ANY SUCH JAILHOUSE INFORMANT,
 INCLUDING ANY CHARGES PENDING AGAINST SUCH INFORMANT  AND  CHARGES  THAT
 WERE REDUCED OR DISMISSED AS PART OF A PLEA BARGAIN;
   (B)  A  SUMMARY  OF  ALL PROMISES, REWARDS AND INDUCEMENTS MADE BY THE
 PROSECUTION OR LAW ENFORCEMENT PERSONNEL TO, OR IN FAVOR  OF  THE  JAIL-
 HOUSE INFORMANT, AS WELL AS REQUESTS FOR CONSIDERATION BY SUCH JAILHOUSE
 INFORMANT, INCLUDING COPIES OF ANY COOPERATION AGREEMENT AND ANY AND ALL
 OTHER DOCUMENTS RELEVANT TO ANY SUCH PROMISE, REWARD OR INDUCEMENT;
   (C)  THE SUBSTANCE, TIME AND PLACE OF ANY STATEMENT ALLEGEDLY GIVEN BY
 THE DEFENDANT TO A JAILHOUSE INFORMANT,  AND  THE  SUBSTANCE,  TIME  AND
 PLACE  OF  ANY  STATEMENT GIVEN BY A JAILHOUSE INFORMANT IMPLICATING THE
 DEFENDANT IN A CRIME FOR WHICH THE DEFENDANT IS CHARGED;
   (D) WHETHER AT ANY TIME THE JAILHOUSE INFORMANT RECANTED ANY TESTIMONY
 SUBJECT TO DISCLOSURE PURSUANT TO THIS SECTION OR ANY OTHER PROVISION OF
 THIS TITLE AND, IF SO, THE TIME AND PLACE OF THE RECANTATION, THE NATURE
 OF THE RECANTATION AND THE NAME OF ANY PERSON PRESENT AT  SUCH  RECANTA-
 TION; AND
   (E) ALL INFORMATION CONCERNING ANY OTHER CRIMINAL PROSECUTION IN WHICH
 THE  JAILHOUSE  INFORMANT TESTIFIED, OR OFFERED TO TESTIFY IN CONNECTION
 WITH A SEPARATE INVESTIGATION OR PROCEEDING, WHETHER OR NOT SUCH  TESTI-
 MONY  WAS  OR  WILL  BE PRESENTED IN COURT PROCEEDINGS, AGAINST A PERSON
 SUSPECTED AS THE PERPETRATOR OF AN OFFENSE OR A DEFENDANT WITH WHOM  THE
 JAILHOUSE  INFORMANT  WAS  IMPRISONED OR OTHERWISE CONFINED, INCLUDING A
 SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS MADE BY THE PROSECUTION
 OR LAW ENFORCEMENT PERSONNEL TO, OR IN FAVOR OF THE JAILHOUSE INFORMANT,
 AS WELL AS REQUESTS FOR CONSIDERATION BY SUCH JAILHOUSE  INFORMANT,  AND
 COPIES  OF  ANY  COOPERATION  AGREEMENT  AND ANY AND ALL OTHER DOCUMENTS
 RELEVANT TO ANY SUCH PROMISE, REWARD OR INDUCEMENT.
   3. COUNSEL FOR THE DEFENDANT SHALL  BE  PROVIDED  THE  OPPORTUNITY  TO
 DEPOSE  THE  JAILHOUSE INFORMANT PRIOR TO ENTERING INTO ANY PLEA NEGOTI-
 ATIONS OR COMMENCEMENT OF TRIAL OR OTHER PROCEEDING.
   4. NOTWITHSTANDING ANY  CONTRARY  PROVISION  OF  LAW,  NO  PROSECUTING
 ATTORNEY  SHALL  OFFER A DISMISSAL OF OR REFUSE TO BRING CHARGES FOR THE
 CRIMES OF MURDER IN THE FIRST DEGREE AS DEFINED IN SECTION 125.27 OF THE
 PENAL LAW, MANSLAUGHTER IN THE FIRST DEGREE AS DEFINED IN SECTION 125.20
 OF THE PENAL LAW, RAPE IN THE FIRST DEGREE AS DEFINED IN SECTION  130.35
 OF  THE PENAL LAW, OR KIDNAPPING IN THE FIRST DEGREE PURSUANT TO SECTION
 135.25 OF THE PENAL LAW, IN EXCHANGE FOR THE TESTIMONY OF ANY WITNESS.
   5. NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW, NO PROSECUTOR OR LAW
 ENFORCEMENT PERSONNEL SHALL OFFER OR PROMISE ANY BENEFIT OR OTHER REWARD
 OR INDUCEMENT TO A JAILHOUSE  INFORMANT  WITH  RESPECT  TO  ANY  PENDING
 CHARGES OR CRIMINAL INVESTIGATIONS INVOLVING SUCH JAILHOUSE INFORMANT IN
 EXCHANGE  FOR  SUCH  INFORMANT'S TESTIMONY UNLESS SUCH PROSECUTOR OR LAW
 ENFORCEMENT PERSONNEL SHALL HAVE  FIRST  OBTAINED  JUDICIAL  CONSENT  TO
 REDUCE  OR DISMISS ANY SUCH PENDING CHARGE OR TO REDUCE THE SENTENCE FOR
 ANY SUCH CHARGE IN EXCHANGE FOR SUCH JAILHOUSE INFORMANT'S TESTIMONY  OR
 OTHER COOPERATION.
   6.  (A)  EVERY DISTRICT ATTORNEY OR OTHER PROSECUTING AGENCY THAT USES
 INFORMATION PROVIDED BY A JAILHOUSE INFORMANT IN ANY  INVESTIGATION  AND
 PROSECUTION OF CRIMINAL CASES SHALL MAINTAIN A RECORD OF ALL SUCH INFOR-
 MATION, WHICH SHALL INCLUDE:
   (I)  THE SUBSTANCE OF EACH JAILHOUSE INFORMANT'S TESTIMONY, WHETHER OR
 NOT IT WAS PRESENTED IN COURT PROCEEDINGS; AND
   (II) A SUMMARY OF ALL PROMISES, REWARDS AND INDUCEMENTS  MADE  BY  THE
 PROSECUTION  OR  LAW  ENFORCEMENT PERSONNEL TO, OR IN FAVOR OF THE JAIL-
 HOUSE INFORMANT, AS WELL AS REQUESTS FOR CONSIDERATION BY SUCH JAILHOUSE
 S. 166                              3
 
 INFORMANT, AND COPIES OF ANY COOPERATION AGREEMENT AND ANY AND ALL OTHER
 DOCUMENTS RELEVANT TO ANY SUCH PROMISE, REWARD OR INDUCEMENT.
   (B)  ALL  INFORMATION REQUIRED TO BE COLLECTED AND MAINTAINED PURSUANT
 TO PARAGRAPH (A) OF THIS SUBDIVISION SHALL BE TRANSMITTED TO THE COMMIS-
 SIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES TO BE MAINTAINED  IN
 A STATEWIDE DATABASE.
   (C)  EXCEPT  AS OTHERWISE PROVIDED HEREIN, ALL INFORMATION REQUIRED TO
 BE COLLECTED AND MAINTAINED PURSUANT TO PARAGRAPH (A) OF  THIS  SUBDIVI-
 SION  IS CONFIDENTIAL AND SHALL NOT BE SUBJECT TO DISCLOSURE PURSUANT TO
 THE FREEDOM OF INFORMATION LAW OR OTHERWISE MADE AVAILABLE TO ANY PERSON
 OR PUBLIC OR  PRIVATE  AGENCY  EXCEPT  WHERE  SPECIFICALLY  REQUIRED  OR
 PERMITTED  PURSUANT TO THIS SECTION OR OTHER STATUTE OR COURT ORDER. ALL
 SUCH INFORMATION SHALL BE ACCESSIBLE ONLY TO THE  DIVISION  OF  CRIMINAL
 JUSTICE  SERVICES,  PROVIDED,  HOWEVER  THAT  DIVISION SHALL PROVIDE ALL
 INFORMATION RELATING TO A SPECIFIC JAILHOUSE INFORMANT TO ANY  PROSECUT-
 ING ATTORNEY OR DEFENSE COUNSEL UPON REQUEST.
   §  2.  Section  642  of  the  executive law is amended by adding a new
 subdivision 2-b to read as follows:
   2-B. (A) ALL DISTRICT ATTORNEYS' OFFICES AND OTHER  PROSECUTING  AGEN-
 CIES  SHALL  MAKE  EVERY REASONABLE EFFORT TO NOTIFY A VICTIM OF A CRIME
 COMMITTED BY A JAILHOUSE INFORMANT AS DEFINED IN PARAGRAPH (B) OF SUBDI-
 VISION ONE OF SECTION 245.21 OF THE CRIMINAL PROCEDURE  LAW  WHENEVER  A
 PROSECUTOR HAS PROMISED, OFFERED OR PROVIDED ANY OF THE BENEFITS DEFINED
 IN  PARAGRAPH  (A)  OF  SUBDIVISION  ONE  OF SUCH SECTION TO A JAILHOUSE
 INFORMANT  IN  EXCHANGE  FOR,  OR  AS  THE  RESULT  OF,  SUCH  JAILHOUSE
 INFORMANT'S OFFERING OR PROVIDING TESTIMONY AGAINST A SUSPECT OR DEFEND-
 ANT, INCLUDING:
   (I) A REDUCTION OR DISMISSAL OF CHARGES;
   (II) A PLEA BARGAIN;
   (III)  SUPPORT  FOR A MODIFICATION OF THE AMOUNT OR CONDITIONS OF BAIL
 OR OTHER SECURING ORDER; OR
   (IV) SUPPORT FOR A MOTION TO REDUCE OR MODIFY A SENTENCE.
   (B) EFFORTS TO NOTIFY THE VICTIM SHALL INCLUDE, IN ORDER OF PRIORITY:
   (I) CONTACTING THE VICTIM OR A PERSON  DESIGNATED  BY  THE  VICTIM  BY
 TELEPHONE; OR
   (II)  CONTACTING THE VICTIM BY MAIL.
   (C)  IF  A  JAILHOUSE  INFORMANT IS IN CUSTODY AT THE TIME OF ANY SUCH
 PROMISE, OFFER, OR PROVISION OF BENEFITS DESCRIBED IN SUBDIVISION TWO OF
 THIS SECTION, SUCH NOTIFICATION ATTEMPT SHALL BE MADE BEFORE  THE  JAIL-
 HOUSE INFORMANT IS RELEASED FROM CUSTODY. WHENEVER A PROSECUTOR NOTIFIES
 A  VICTIM OF DOMESTIC ASSAULT, CRIMINAL SEXUAL CONDUCT, OR HARASSMENT OR
 STALKING UNDER THIS SECTION, THE PROSECUTOR SHALL ALSO INFORM THE VICTIM
 OF THE METHOD AND BENEFITS OF SEEKING AN ORDER OR  PROTECTION  AND  THAT
 THE VICTIM MAY SEEK AN ORDER WITHOUT PAYING A FEE.
   §  3.  This  act shall take effect on the ninetieth day after it shall
 have become a law.

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