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A00347 Summary:

BILL NOA00347
 
SAME ASSAME AS S03348
 
SPONSORBraunstein
 
COSPNSRCook, Weprin, Englebright, Steck
 
MLTSPNSRMcDonough, Rivera J
 
Add 60.23, CP L
 
Relates to confidential informants; defines terms; requires the law enforcement agencies which use confidential informants to establish policies and procedures to assess the suitability of using a person as a confidential informant; makes related provisions.
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A00347 Actions:

BILL NOA00347
 
01/06/2021referred to codes
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A00347 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A347
 
SPONSOR: Braunstein
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to confidential informants   PURPOSE OR GENERAL IDEA OF BILL: To amend the law in relation to confidential informants by defining confidential informants; by imposing restrictions on who and who may not be a confidential informant; by regulating the use of confidential informants.   SUMMARY OF SPECIFIC PROVISIONS: Section 1. Adds a new section 60.23 to the criminal procedure law. 60.23.1: This new section defines confidential informant, controlled buy, controlled sale, law enforcement agency, target offender. 60.23.2: This section also requires law enforcement agencies that use confidential informants to inform each person who is requested to serve as a confidential informant: that the agency cannot promise inducements in exchange for serving as a confidential informant; that the value of his or her assistance and any effect of the assistance on pending crimi- nal matters can be determined only by the appropriate legal authority; that each person who is solicited to act as a confidential informant must be Riven the opportunity to consult with legal counsel before entering into a substantial assistance agreement. The agency must also ensure that personnel who are involved in the use or recruitment of confidential informants are trained in the law enforcement agency's policies and procedures, and must 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. 60.23.3: The section requires the law enforcement agency that uses confidential informants to establish policies and procedures addressing the recruitment, control and use of confidential informants. The poli- cies and procedures must state the information that will be maintained about each confidential informant; general guidelines for handling informants; a process for advising the informant of conditions, restrictions, and procedures associated with participating in the agen- cy's investigative or intelligence gathering activities; the designated supervisory or command level review and oversight in the use of a confi- dential informant; limits or restrictions on off-duty association or relationships by agency personnel with confidential informants; guide- lines to deactivate confidential informants and communications with them; and the level of supervisory approval required before a juvenile is used as a confidential informant. 60.23.4: The section also provides for establishing policies and proce- dures to assess the suitability of using a person as an informant by considering a variety of factors, including the person's age, maturity, mental capacity, and youthful offender status; risk of physical harm to the person, his or her 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; the reliability of the person; the effect upon agency efforts that the disclosure of the person's cooper- ation in the community may have; whether the person is a substance abus- er or has a history of substance abuse or is in a court-supervised drug treatment program; the person's criminal history or prior criminal record; and whether the use of the person is important to or vital to the success of an investigation. 60.23.5: The section also requires law enforcement agencies to establish written security procedures that provide for the secured retention of records related to the use of confidential sources; limit the availabil- ity of the records relating to confidential informants to those within the law enforcement agency or law enforcement community, or those having a need to review the records, or whose access has been required by court process; require the notation of each person who accesses the records; provide for review by the agency to ensure the security procedures are followed; and define the process by which records concerning an infor- mant may be lawfully destroyed. 60.23.6: The section requires state or local law enforcement agencies that use confidential informants to conduct a periodic review of actual agency confidential informant practices to ensure conformity with the agency's policies and procedures and this section. 60.23.7: The section does 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 addition right, substantive or procedural, enforceable at law by a defendant in a criminal proceeding. Section 2. Provides for the effective date.   JUSTIFICATION: This legislation is based on Florida's "Rachel's Law." In 2008, Rachel Hoffman, a 23 year-old Florida State University graduate, was recruited by Tallahassee police to be a confidential informant. She agreed to be a confidential informant because of a prior arrest and a belief that charges against her could be reduced or dropped. However, when she was sent to a controlled buy, she was killed by those who had found out she was a confidential informant. Confidential informants play an important role in curbing the sale and use of drugs in our state, but without safeguards to protect the infor- mants, and the liability of the officers who recruit them, thousands of individuals are at risk. This legislation would regulate the use of confidential informants. Such regulation would include the adoption of policies and procedures by law enforcement agencies governing the ability to use confidential informants and disclosure of information to the informants.   PRIOR LEGISLATIVE HISTORY: 2013-2014: A.1816-A/S.5732-A - Referred to Codes. 2015-2016:A.1072/S.3876 - Referred to Codes. 2017-2018: A.257/S.5901 Referred to Codes. 2019-2020: A.673/S.2182 - Referred to Codes.   FISCAL IMPLICATIONS: None to state.   EFFECTIVE DATE: The first of November next succeeding the date on which it shall have become a law.
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A00347 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                           347
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 6, 2021
                                       ___________
 
        Introduced  by  M. of A. BRAUNSTEIN, COOK, WEPRIN, ENGLEBRIGHT, STECK --
          Multi-Sponsored by -- M. of A. McDONOUGH, J. RIVERA -- read  once  and
          referred 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:
 
     1    Section  1.  The  criminal  procedure  law  is amended by adding a new
     2  section 60.23 to read as follows:
     3  § 60.23 Rules of evidence; confidential informants.
     4    1.   As used in this section,  the  following  terms  shall  have  the
     5  following meanings:
     6    (a)  "Confidential informant" means a person who cooperates with a law
     7  enforcement agency confidentially in order to protect the person or  the
     8  agency's intelligence gathering or investigative efforts and:
     9    (i)  Seeks  to  avoid  arrest  or prosecution for a crime, or mitigate
    10  punishment for a crime in which a sentence will be or has been  imposed;
    11  and
    12    (ii) Is able, by reason of his or her familiarity or close association
    13  with suspected criminals, to:
    14    (A) Make a controlled buy or controlled sale of contraband, controlled
    15  substances,  or  other  items  that  are material to a criminal investi-
    16  gation;
    17    (B) Supply regular or constant information about suspected  or  actual
    18  criminal activities to a law enforcement agency; or
    19    (C) Otherwise provide information important to ongoing criminal intel-
    20  ligence gathering or criminal investigative efforts.
    21    (b)  "Controlled  buy"  means  the  purchase of contraband, controlled
    22  substances, or other items that are material to a criminal investigation
    23  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.
                                                                   LBD03386-01-1

        A. 347                              2
 
     1  ipated in by law enforcement personnel with the knowledge of a confiden-
     2  tial informant.
     3    (c)  "Controlled  sale"  means  the    sale  of contraband, controlled
     4  substances, or other items that are material to a criminal investigation
     5  to a target offender which is initiated, managed, overseen,  or  partic-
     6  ipated in by law enforcement personnel with the knowledge of a confiden-
     7  tial informant.
     8    (d) "Law enforcement agency" means any agency having a primary mission
     9  of  preventing  and  detecting  crime  and the enforcement of the penal,
    10  criminal, traffic, or highway laws of the state and that in  furtherance
    11  of that primary mission employs law enforcement officers.
    12    (e)  "Target  offender"  means the person suspected by law enforcement
    13  personnel to be implicated in criminal  acts  by  the  activities  of  a
    14  confidential informant.
    15    2. A law enforcement agency that uses confidential informants shall:
    16    (a)  Inform  each  person  who is requested to serve as a confidential
    17  informant that the agency cannot promise inducements such as a grant  of
    18  immunity,  dropped or reduced charges, or reduced sentences or placement
    19  on probation in exchange for serving as a confidential informant.
    20    (b) Inform each person who is requested to  serve  as  a  confidential
    21  informant  that  the  value  of  his or her assistance as a confidential
    22  informant and any effect that assistance may have  on  pending  criminal
    23  matters can be determined only by the appropriate legal authority.
    24    (c)  Each  person  who is solicited to act as a confidential informant
    25  must be given the opportunity  to  consult  with  legal  counsel  before
    26  entering  into  a substantial assistance agreement. If the person is not
    27  represented by legal counsel at the time of the  solicitation,  the  law
    28  enforcement agency must advise the person of his or her right to consult
    29  with  legal  counsel  before  entering  into  the substantial assistance
    30  agreement.
    31    (d) Ensure that all personnel who are involved in the use or  recruit-
    32  ment of confidential informants are trained in the law enforcement agen-
    33  cy's policies and procedures. The agency shall keep documentation demon-
    34  strating the date of such training.
    35    (e)  Adopt policies and procedures that assign the highest priority in
    36  operational decisions and actions to the preservation of the  safety  of
    37  confidential  informants,  law  enforcement personnel, target offenders,
    38  and the public.
    39    3. A law enforcement agency that uses  confidential  informants  shall
    40  establish  policies  and  procedures addressing the recruitment, control
    41  and use of confidential informants. The policies  and  procedures  shall
    42  state the:
    43    (a)  Information  that  the  law  enforcement  agency  shall  maintain
    44  concerning each confidential informant;
    45    (b) General guidelines for handling confidential informants;
    46    (c)  Process  to  advise  a  confidential  informant  of   conditions,
    47  restrictions,  and procedures associated with participating in the agen-
    48  cy's investigative or intelligence gathering activities;
    49    (d) Designated supervisory or command level review  and  oversight  in
    50  the use of a confidential informant;
    51    (e) Limits or restrictions on off-duty association or social relation-
    52  ships  by  agency  personnel  involved  in investigative or intelligence
    53  gathering with confidential informants;
    54    (f) Guidelines to deactivate confidential informants, including guide-
    55  lines for deactivating communications with confidential informants; and

        A. 347                              3
 
     1    (g) Level of supervisory approval required before a juvenile  is  used
     2  as a confidential informant.
     3    4.  A  law  enforcement agency that uses confidential informants shall
     4  establish policies and procedures to assess the suitability of  using  a
     5  person  as a confidential informant by considering the minimum following
     6  factors:
     7    (a) The person's age, maturity, youthful offender status,  and  mental
     8  capacity  if such person is mentally disabled as such term is defined in
     9  subdivision three of section 1.03 of the mental hygiene law;
    10    (b) The risk the person poses to adversely affect a present or  poten-
    11  tial investigation or prosecution;
    12    (c) The effect upon agency efforts that the disclosure of the person's
    13  cooperation in the community may have;
    14    (d)  Whether  the  person  is  a  substance abuser or has a history of
    15  substance abuse or is in a court-supervised drug treatment program;
    16    (e) The risk of physical harm to the  person,  his  or  her  immediate
    17  family,  or  close  associates  as  a result of providing information or
    18  assistance, or upon the disclosure of the  person's  assistance  to  the
    19  community;
    20    (f) Whether the person has shown any indication of emotional instabil-
    21  ity, unreliability or of furnishing false information;
    22    (g) The person's criminal history or prior criminal record; and
    23    (h)  Whether  the  use  of  the person is important to or vital to the
    24  success of an investigation.
    25    5. A law enforcement agency that uses  confidential  informants  shall
    26  establish written security procedures that, at a minimum:
    27    (a)  Provide  for  the secured retention of any records related to the
    28  law enforcement agency's confidential sources, including access to files
    29  identifying the identity of confidential sources;
    30    (b) Limit availability to records relating to confidential  informants
    31  to  those within the law enforcement agency or law enforcement community
    32  having a need to know or review those records, or to those whose  access
    33  has been required by court process or order;
    34    (c)  Require notation of each person who accesses such records and the
    35  date that the records are accessed;
    36    (d) Provide for review and oversight by the law enforcement agency  to
    37  ensure that the security procedures are followed; and
    38    (e)  Define  the  process  by  which records concerning a confidential
    39  informant may be lawfully destroyed.
    40    6. A state or local law  enforcement  agency  that  uses  confidential
    41  informants shall perform a periodic review of actual agency confidential
    42  informant  practices to ensure conformity with the agency's policies and
    43  procedures and this section.
    44    7. The provisions of this section and policies and procedures  adopted
    45  pursuant  to  this  section  do  not grant any right or entitlement to a
    46  confidential informant or a person who is requested to be a confidential
    47  informant, and any failure to abide by this section may  not  be  relied
    48  upon to create any additional right, substantive or procedural, enforce-
    49  able at law by a defendant in a criminal proceeding.
    50    § 2. This act shall take effect on the first of November next succeed-
    51  ing the date on which it shall have become a law.
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