Bill S2174-2013

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 life or compromise his or her continued effectiveness.

Details

Actions

  • Jan 8, 2014: REFERRED TO CODES
  • Jan 8, 2014: returned to senate
  • Jan 8, 2014: died in assembly
  • Mar 6, 2013: referred to codes
  • Mar 6, 2013: DELIVERED TO ASSEMBLY
  • Mar 6, 2013: PASSED SENATE
  • Mar 5, 2013: ADVANCED TO THIRD READING
  • Mar 4, 2013: 2ND REPORT CAL.
  • Feb 28, 2013: 1ST REPORT CAL.126
  • Jan 14, 2013: REFERRED TO CODES

Votes

VOTE: COMMITTEE VOTE: - Codes - Feb 28, 2013
Ayes (16): Nozzolio, Boyle, DeFrancisco, Flanagan, Fuschillo, Gallivan, Golden, Lanza, O'Mara, Smith, Squadron, Perkins, Espaillat, Hoylman, Sampson, O'Brien

Memo

BILL NUMBER:S2174

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: The purpose of this bill is to protect the identity of undercover police officers who are required to testify in court.

SUMMARY OF PROVISIONS: This amends 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 § 60.15 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 her identity.

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.

EXISTING LAW:

Section 50-a of the Civil Rights Law and section 60.15 of the Criminal Procedure Law are amended.

JUSTIFICATION: Undercover police officers perform their duty under extraordinarily dangerous circumstances. These brave officers 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 result of their dangerous work.

Tragically, too many have been murdered, shot, stabbed and beaten by narcotics dealers. This violence and murder does not stop on the street; it extends into our judicial system as well, in the form of witness intimidation. When this intimidation is directed at undercover police officers, it undermines the efforts of law enforcement to penetrate criminal drug gangs and obtain the evidence necessary to put their leaders and operatives behind bars. Currently, state law does not do enough to secure the availability of one of the most important and effective sources of this evidence-the testimony of undercover police officers. This bill changes that by giving greater protection to the identity of undercover police officers who are called upon to testify in court.

LEGISLATIVE HISTORY: S.1870A of 2005-06 - Passed Senate S.5335A of 2007-08 - Referred to Codes S.2117 of 2009-10 - Referred to Codes S.1751A of 2011- Passed Senate 03/29/12

FISCAL IMPLICATIONS: None.

LOCAL FISCAL IMPLICATIONS:

EFFECTIVE DATE: This act shall take effect immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 2174 2013-2014 Regular Sessions IN SENATE January 14, 2013 ___________
Introduced by Sen. GOLDEN -- read twice and ordered printed, and when printed to be committed to the Committee on Codes 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.

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