Bill S1751A-2011

Authorizes prosecuting agency to move to have identity of undercover public officers and employees protected while testifying in court

Authorizes the people in a criminal proceeding, the presentment agency in a juvenile delinquency proceeding and a governmental agency or public employer in a civil enforcement action to move to protect the identity, address and any other identifying information of any witness who is an undercover public officer or employee when the disclosure of the identity of such officer or employee would endanger the officer's life or employee's or compromise his or her continued effectiveness.

Details

Actions

  • Mar 29, 2012: referred to codes
  • Mar 29, 2012: DELIVERED TO ASSEMBLY
  • Mar 29, 2012: PASSED SENATE
  • Mar 22, 2012: ADVANCED TO THIRD READING
  • Mar 21, 2012: 2ND REPORT CAL.
  • Mar 20, 2012: 1ST REPORT CAL.416
  • Mar 14, 2012: PRINT NUMBER 1751A
  • Mar 14, 2012: AMEND AND RECOMMIT TO CODES
  • Jan 4, 2012: REFERRED TO CODES
  • Jan 4, 2012: returned to senate
  • Jan 4, 2012: died in assembly
  • Jun 2, 2011: referred to codes
  • Jun 2, 2011: DELIVERED TO ASSEMBLY
  • Jun 2, 2011: PASSED SENATE
  • May 23, 2011: ADVANCED TO THIRD READING
  • May 18, 2011: 2ND REPORT CAL.
  • May 17, 2011: 1ST REPORT CAL.722
  • Jan 12, 2011: REFERRED TO CODES

Meetings

Calendars

Votes

VOTE: COMMITTEE VOTE: - Codes - Mar 20, 2012
Ayes (15): Saland, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, Nozzolio, O'Mara, Gianaris, Duane, Huntley, Perkins, Squadron, Espaillat
Nays (1): Parker

Memo

BILL NUMBER:S1751A

TITLE OF BILL: 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

PURPOSE: This bill would amend Civil Rights Law §50-a to include within the confidentiality provisions for police personnel records those records that include the identity of undercover police officers. The bill would also amend Criminal Procedure Law §60.l5 to create a procedure whereby a District Attorney may request that an undercover officer's identity be protected. There would be a rebuttable presumption that an undercover police officer would be endangered, or his or her effectiveness compromised, by public disclosure of his or her identity. Therefore, unless the presumption is rebutted, the court would be required to direct the witness to testify under a pseudonym such as a shield number. The bill allows the District Attorney to ask the court for additional measures to protect the police officer's identity if necessary. These requests would continue to be governed by standards articulated by the united States Supreme Court in WALLER V. GEORGIA, 467 U.S. 39,48 (1984). In addition, the bill would allow a defendant to require the court to instruct the jury that no inference unfavorable to the defendant may be drawn because the undercover police officer is testifying under a pseudonym or form of any other similar protective measure.

JUSTIFICATION: Undercover police officers perform their duty under extraordinarily dangerous circumstances. These brave officers, male and female, of various ethnic and racial backgrounds, all of whom volunteer for this assignment, put their safety at risk to make the city and State of New York safer. The safety of their loved ones is also sometimes at risk as a corollary to their dangerous work. Tragically, too many have been murdered, shot, stabbed and beaten by narcotics dealers. The distribution and sale of illicit drugs permeate many of New York City's neighborhoods. The astronomical profits of the illegal narcotics trade motivate narcotics dealers to take extreme risks and zealously protect their operation at all costs. Dealers and distributors are often individuals who do not hesitate to resort to violence. They commit violent crime and attract violence to any area in which they operate. To guard themselves from the attack of rival drug gangs, prevent the loss of their money and property and avoid the detection of law enforcement, drug gangs set up elaborate systems of protection that include the use of people and technology, A drug sales "team" may include street managers, heavily armed enforcers, lookouts and at the lower levels, steerers. Sophisticated dealers protect their operation with video surveillance and other

technology. Because the world of drug dealing has changed and in fact has in large measure moved indoors, utilizing high levels of technological protection, there is an ever greater need for undercover operations in order to conduct even the most simple "buy and bust". Given the realities of today's information technology and the easy access to it, having a person's name may yield his or her residence address and the directions to it. This bill would add protection for undercover officers to the law by making the identity of an undercover officer a "personnel record" for purposes of Civil Rights Law §50-a, which requires a court order for release. In addition, it would create a rebuttable presumption that an undercover· police officer would be endangered, or his or her effectiveness compromised, by public disclosure of his or her name. Therefore, unless the presumption is rebutted, the court would be required to direct that the witness testify under a pseudonym such as a shield number. This bill would help protect undercover officers' identities and thus their safety. In addition, upon a request from the defendant, the court would be required to instruct the jury that no negative inference could be drawn because the undercover police officer testified under a pseudonym or from any other similar protective measure. Indeed, if undercover police officers routinely testify under pseudonyms, it would be easier for a jury not to draw any adverse inferences against the individual defendants.

LEGISLATIVE HISTORY: S.2117 of 2009-10 - Referred to Codes S.5335A of 2007-08 - Referred to Codes S.1870A of 2005-06 - Passed Senate

FISCAL IMPLICATIONS:; None.

EFFECTIVE DATE: Immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 1751--A 2011-2012 Regular Sessions IN SENATE January 12, 2011 ___________
Introduced by Sens. GOLDEN, RANZENHOFER -- read twice and ordered print- ed, and when printed to be committed to the Committee on Codes -- recommitted to the Committee on Codes in accordance with Senate Rule 6, sec. 8 -- 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 section 53 of subpart B of part C of chapter 62 of the laws of 2011, 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 shall be considered confidential 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 except as may be 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.
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 immediately.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Discuss!

blog comments powered by Disqus