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.
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.
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.
