NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1816A
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 confi-
dential 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, enforcea-
ble 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
Hof man, 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:
None.
FISCAL IMPLICATIONS:
None to state.
EFFECTIVE DATE:
The first of November next succeeding the date on which it shall have
become a law.
