A02139 Summary:

BILL NOA02139
 
SAME ASSAME AS S02174
 
SPONSORSimotas (MS)
 
COSPNSRColton, Hooper
 
MLTSPNSR
 
Amd S50-a, Civ Rts L; amd S60.15, CP L; add S343.6, Fam Ct Act; add R4516-a, CPLR
 
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.
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A02139 Actions:

BILL NOA02139
 
01/09/2013referred to codes
01/08/2014referred to codes
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A02139 Floor Votes:

There are no votes for this bill in this legislative session.
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A02139 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2139
 
                               2013-2014 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 9, 2013
                                       ___________
 
        Introduced by M. of A. SIMOTAS, COLTON, HOOPER -- read once and referred
          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:
 
     1    Section 1. Subdivision 1 of section 50-a of the civil rights  law,  as
     2  amended  by  section 53 of subpart B of part C of chapter 62 of the laws
     3  of 2011, is amended to read as follows:
     4    1. All personnel records used to evaluate performance toward continued
     5  employment or promotion, under the  control  of  any  police  agency  or
     6  department  of  the state or any political subdivision thereof including
     7  authorities or agencies maintaining police forces of individuals defined
     8  as police officers in section 1.20 of the  criminal  procedure  law  and
     9  such  personnel records under the control of a sheriff's department or a

    10  department of correction of individuals employed as correction  officers
    11  and  such  personnel records under the control of a paid fire department
    12  or    force    of    individuals    employed    as    firefighters    or
    13  firefighter/paramedics  and  such personnel records under the control of
    14  the department of corrections and community supervision for  individuals
    15  defined  as  peace  officers  pursuant  to subdivisions twenty-three and
    16  twenty-three-a of section 2.10 of the criminal procedure  law  shall  be
    17  considered  confidential and not subject to inspection or review without
    18  the  express  written  consent  of  such  police  officer,  firefighter,
    19  firefighter/paramedic,  correction  officer  or peace officer within the
    20  department of corrections and community supervision  except  as  may  be
    21  mandated by lawful court order.  For purposes of this section, personnel

    22  records shall include any report, paper, picture, photograph, court file
    23  or other document, in the custody or possession of any public officer or
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02555-01-3

        A. 2139                             2
 
     1  employee,  which tends to identify by name or image an individual who is
     2  performing or has performed official duties in a  covert  or  undercover
     3  capacity  and  whose  personnel  records  are  otherwise covered by this
     4  subdivision.
     5    §  2. Section 60.15 of the criminal procedure law is amended by adding
     6  a new subdivision 3 to read as follows:

     7    3. When a public officer or employee, including but not limited  to  a
     8  police  officer as defined in section 1.20 of this part or a peace offi-
     9  cer as defined in section 2.10  of  this  part,  is  performing  or  has
    10  performed  official  duties  in  a  covert or undercover capacity and is
    11  called as a witness in a criminal proceeding:
    12    (a) The people may make a request of the court that  the  identity  of
    13  the  witness be protected. There shall be a presumption that the witness
    14  would be endangered or his or her effectiveness compromised  if  his  or
    15  her  identity  is  disclosed  and  that therefore the people have made a
    16  showing that the witness should be excused from  providing  his  or  her

    17  identity.  The  defendant  may  thereupon  seek to rebut the presumption
    18  and/or demonstrate the materiality of  the  witness's  identity  to  the
    19  issue  of  guilt or innocence. If the presumption has not been rebutted,
    20  the court shall then balance the interests and if it determines that the
    21  need of the public officer or employee witness for anonymity exceeds the
    22  defendant's need to obtain the witness's identity for purposes of cross-
    23  examination, the court shall direct that the  witness  testify  under  a
    24  pseudonym such as a shield number.
    25    (b)  If requested by the people, the court shall take such other meas-
    26  ures as are necessary, consistent with rights of the defendant, to safe-
    27  guard the identity of the witness.

    28    (c) Upon request of the defendant during a jury trial, the court shall
    29  instruct the jury that the use of a pseudonym or  any  other  additional
    30  measure  to  protect  the  identity  of the witness is not a factor from
    31  which an inference unfavorable to the defendant may be drawn.
    32    § 3. The family court act is amended by adding a new section 343.6  to
    33  read as follows:
    34    §  343.6.  Rules  of  evidence; testimony given by a public officer or
    35  employee. When a public officer or employee, including but  not  limited
    36  to a police officer as defined in section 1.20 of the criminal procedure
    37  law  or  a  peace  officer  as  defined  in section 2.10 of such law, is
    38  performing or has performed official duties in a  covert  or  undercover

    39  capacity and is called as a witness in a delinquency proceeding:
    40    1.  The  presentment  agency  may make a request of the court that the
    41  identity of the witness be protected. There shall be a presumption  that
    42  the  witness would be endangered or his or her effectiveness compromised
    43  if his or her identity is disclosed and that therefore  the  presentment
    44  agency  has  made  a  showing  that  the  witness should be excused from
    45  providing his or her identity.   The respondent may  thereupon  seek  to
    46  rebut   the  presumption  and/or  demonstrate  the  materiality  of  the
    47  witness's identity to the issue of guilt or innocence. If  the  presump-
    48  tion  has  not been rebutted, the court shall then balance the interests

    49  and if it determines that the need of the  public  officer  or  employee
    50  witness  for  anonymity  exceeds  the  respondent's  need  to obtain the
    51  witness's identity for purposes of cross-examination,  the  court  shall
    52  direct  that  the  witness  testify  under  a pseudonym such as a shield
    53  number.
    54    2. If requested by the presentment agency, the court shall  take  such
    55  other  measures as are necessary, consistent with rights of the respond-
    56  ent, to safeguard the identity of the witness.

        A. 2139                             3
 
     1    § 4. The civil practice law and rules is amended by adding a new  Rule
     2  4516-a to read as follows:
     3    Rule 4516-a. Testimony by certain public officers and employees.  When

     4  a  public  officer  or  employee,  including but not limited to a police
     5  officer as defined in section 1.20 of the criminal procedure  law  or  a
     6  peace  officer  as defined in section 2.10 of such law, is performing or
     7  has performed official duties in a covert or undercover capacity and  is
     8  called  as  a witness in a civil enforcement action brought by a govern-
     9  mental entity:
    10    (a) Such governmental entity or the public employer of the witness may
    11  make a request of  the  court  that  the  identity  of  the  witness  be
    12  protected. There shall be a presumption that the witness would be endan-
    13  gered  or his or her effectiveness compromised if his or her identity is
    14  disclosed and that therefore the government entity has  made  a  showing

    15  that  the  witness should be excused from providing his or her identity.
    16  The respondent may thereupon seek to rebut the presumption and/or demon-
    17  strate the materiality of the witness's identity to the issue  of  guilt
    18  or  innocence. If the presumption has not been rebutted, the court shall
    19  then balance the interests and if it determines that  the  need  of  the
    20  public  officer  or  employee witness for anonymity exceeds the respond-
    21  ent's need to obtain the witness's identity for purposes of cross-exami-
    22  nation, the court shall direct that the witness testify under a  pseudo-
    23  nym such as a shield number.
    24    (b)  If requested by such governmental entity or such public employer,

    25  the court shall take such other measures as  are  necessary,  consistent
    26  with  rights  of  the  adverse  party,  to safeguard the identity of the
    27  witness.
    28    (c) During a jury trial, upon request by the party  against  whom  the
    29  action  is  brought, the court shall instruct the jury that the use of a
    30  pseudonym or any other additional measure to protect the identity of the
    31  witness is not a factor from which  an  inference  unfavorable  to  such
    32  party may be drawn.
    33    (d)  Nothing  in this section shall be construed to prohibit or other-
    34  wise affect appropriate measures to safeguard the identity of a  witness
    35  that  may  be  taken in any civil action that is not within the scope of
    36  this section.

    37    § 5. Severability. If any clause, sentence, paragraph, section or part
    38  of this act shall be adjudged by any court of competent jurisdiction  to
    39  be  invalid,  the  judgment  shall  not affect, impair or invalidate the
    40  remainder thereof, but shall be confined in its operation to the clause,
    41  sentence, paragraph, section or part thereof directly  involved  in  the
    42  controversy in which the judgment shall have been rendered.
    43    § 6. This act shall take effect immediately.
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