S T A T E   O F   N E W   Y O R K
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                                 2796--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                            January 20, 2015
                               ___________

Introduced by M. of A. SIMOTAS, COLTON, HOOPER -- read once and referred
  to  the  Committee  on  Codes  --  committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

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 chapter 516 of the laws  of  2014,  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 and such
personnel records under the control of a probation department for  indi-
viduals defined as peace officers pursuant to subdivision twenty-four of
section 2.10 of the criminal procedure law shall be considered confiden-
tial 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 or  probation  department  except  as  may  be

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02262-04-5
              

A. 2796--A                          2

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
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.

A. 2796--A                          3

  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.
  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 on the thirtieth day  after  it  shall
have become a law.