S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    327
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 8, 2025
                                ___________
 
 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 THEIR 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.
                                                            LBD00786-01-5
              

 S. 327                              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 SUCH PERSON'S 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 THEIR 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. 327                              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, THEIR 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.