Authorizes prosecuting agency to move to have identity of undercover public officers and employees protected while testifying in court

1 Co-sponsor

• Thomas P. Morahan

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

This bill would amend 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.l6 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 his or her identity. Therefore, unless the presumption is rebutted, the court would be required to direct the witness to testify under a pseudonym such as a shield number. 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.

Justification

Undercover police officers perform their duty under extraordinarily dangerous circumstances. These brave officers, male and female, of various ethnic and racial backgrounds, all of whom volunteer for this assignment, 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 corollary to their dangerous work. Tragically, too many have been murdered, shot, stabbed and beaten by narcotics dealers. The distribution and sale of illicit drugs permeate many of New York City's neighborhoods. The astronomical profits of the illegal narcotics trade motivate narcotics dealers to take extreme risks and zealously protect their operation at all costs. Dealers and distributors are often individuals who do not hesitate to resort to violence. They commit violent crime and attract violence to any area in which they operate. To guard themselves from the attack of rival drug gangs, prevent the loss of their money and property and avoid the detection of law enforcement, drug gangs set up elaborate systems of protection that include the use of people and technology. A drug sales "team" may include street managers, heavily armed enforcers, lookouts and at the lower levels, steerers. Sophisticated dealers protect their operation with video surveillance and other technology. Because the world of drug dealing has changed and in fact has in large measure moved indoors, utilizing high levels of technological protection, there is an ever greater need for undercover operations in order to conduct even the most simple "buy and bust". Given the realities of today's information technology and the easy access to it, having a person's name may yield his or her residence address and the directions to it. This bill would add protection for undercover officers to the law by making the identity of an undercover officer a "personnel record" for purposes of Civil Rights Law §50-a, which requires a court order for release. In addition, it would create a rebuttable presumption that an undercover· police officer would be endangered, or his or her effectiveness compromised, by public disclosure of his or her name. Therefore, unless the presumption is rebutted, the court would be required to direct that the witness testify under a pseudonym such as a shield number. This bill would help protect undercover officers' identities and thus their safety. In addition, upon a request from the defendant, the court would be required to instruct the jury that no negative inference could be drawn because the undercover police officer testified under a pseudonym or from any other similar protective measure. Indeed, if undercover police officers routinely testify under pseudonyms, it would be easier for a jury not to draw any adverse inferences against the individual defendants.