New York State Assembly

 
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A05617 Summary:

A05617 Actions:

A05617 Committee Votes:

Committee:CODES   Chair:Lentol      
DATE:02/14/2017AYE/NAY:15/6  Action: Favorable refer to committee Ways and Means        
Lentol
Aye
Graf
Nay
Schimminger
Absent
Giglio
Nay
Weinstein
Aye
McKevitt
Nay
Pretlow
Aye
Montesano
Nay
Cook
Aye
Ra
Nay
Cymbrowitz
Aye
Morinello
Nay
Titus
Aye
O'Donnell
Aye
Lavine
Aye
Perry
Aye
Zebrowski
Aye
Abinanti
Aye
Weprin
Aye
Mosley
Aye
Hevesi
Aye
Fahy
Aye

Committee:WAYS AND MEANS   Chair:Farrell      
DATE:02/14/2017AYE/NAY:18/10  Action: Favorable refer to committee Rules        
Farrell
Aye
Oaks
Nay
Lentol
Aye
Crouch
Excused
Schimminger
Nay
Barclay
Nay
Gantt
Aye
Fitzpatrick
Nay
Weinstein
Aye
Hawley
Nay
Glick
Excused
Malliotakis
Nay
Nolan
Excused
Walter
Nay
Pretlow
Aye
Montesano
Nay
Perry
Aye
Curran
Excused
Colton
Aye
Ra
Nay
Cook
Aye
Cahill
Aye
Aubry
Aye
Hooper
Aye
Thiele
Aye
Cusick
Aye
Ortiz
Aye
Benedetto
Aye
Moya
Excused
Weprin
Aye
Rodriguez
Excused
Ramos
Excused
Braunstein
Nay
McDonald
Aye
Rozic
Aye

Committee:RULES   Chair:Heastie      
DATE:02/14/2017AYE/NAY:20/7  Action: Favorable         
Heastie
Aye
Kolb
Nay
Gottfried
Aye
Oaks
Nay
Lentol
Aye
Butler
Nay
Farrell
Aye
Crouch
Excused
Gantt
Aye
Finch
Nay
Nolan
Excused
Barclay
Nay
Weinstein
Aye
Raia
Nay
Hooper
Aye
Hawley
Nay
Ortiz
Aye
Pretlow
Aye
Cook
Aye
Glick
Excused
Morelle
Aye
Aubry
Aye
Englebright
Aye
Dinowitz
Aye
Colton
Aye
Magnarelli
Aye
Perry
Aye
Galef
Aye
Paulin
Excused
Titus
Aye
Peoples-Stokes
Aye

A05617 Floor Votes:

A05617 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
 submitted in accordance with Assembly Rule III, Sec 1(f)



 
BILL NUMBER: A5617
 
SPONSOR: Perry

 
TITLE OF BILL:
 
An act to amend the executive law and the criminal procedure law, in
relation to establishing the office of special investigation
 
 
PURPOSE OR GENERAL IDEA OF BILL:
 
The bill is designed to enhance public confidence in the integrity of
investigations and court proceedings in instances involving the death of
a person following an encounter with a police officer or peace officer.
The bill would authorize the attorney general or, in potential conflict
circumstances, an independent counsel to investigate and, where appro-
priate, prosecute such cases.
 
 
SUMMARY OF SPECIFIC PROVISIONS:
 
Section one would establish an Office of Special Investigation within
the New York State Department of Law (the formal name of the New York
State office of the Attorney General). The Office of Special Investi-
gation would investigate in instances where an individual dies following
an encounter with a police officer or peace officer. Where criminality
is believed to have been occurred, the Office would be empowered to
prosecute alleged offenses committed by a police officer or peace offi-
cer with respect to such encounter or the related investigations.
 
When a police or peace officer allegedly involved was employed by the
State of New York, the Attorney General, while empowered to initially
investigate, would promptly apply to the court for appointment of an
independent counsel to investigate and potentially prosecute the matter.

Section two would make information and records concerning certain grand
jury proceedings more readily available to the public. In cases involv-
ing the submission of a potential criminal charge against a police offi-
cer or peace officer, legal instructions would be given by the judge or
justice in charge of the grand jury. After submission of such charge or
charges and final action by the grand jury, these legal instructions
would be available for public release, provided that the names of
witnesses and any information that would identify a witness would be
redacted if the court determined that public release of such information
would endanger any person.  1
 
 
JUSTIFICATION:
 
It is vital that the public have confidence that our criminal justice
system is impartial and fair. This confidence must be borne not just of
perception, but of reality.
 
This bill would promote public confidence in several ways. First, it
would remove a potential conflict of interest with respect to the inves-
tigation where a person has died following an encounter with a police
officer or peace officer. District attorneys work regularly and closely
with police and peace officers in the investigation of alleged criminal
acts. When an investigation involves the death of a person following an
encounter with a police officer or peace officer, it is reasonable to
consider whether a district attorney can be impartial in investigating
 
the facts and determining whether grand jury consideration is appropri-
ate.
 
This bill would establish an Office of Special Investigation within the
N.Y. State Department of Law. The Office would investigate and, where
appropriate, prosecute this limited class of cases in the same manner as
a district attorney. In instances where the police officer or peace
officer was employed by New York State, the Office of Special Investi-
gation, while empowered to investigate initially, would promptly seek
court appointment of an independent counsel to investigate and poten-
tially prosecute the matter.
 
Second, this bill would appropriately balance the secrecy of grand jury
proceedings with the necessity of transparency for the public interest.
In some recent cases involving police encounters and civilian deaths
that did not result in indictment, the present law requiring secrecy has
led to confusion and concern, among some in the public, that appropriate
evidence was not presented and/or necessary legal instructions were not
given. This legislation carefully balances grand jury secrecy with the
public's understandable desire to know more about what led to a "no true
bill" result.
 
 
PRIOR LEGISLATIVE HISTORY:
 
New bill.
 
 
FISCAL IMPLICATIONS:
 
The bill may result in some increased costs to the state, and concom-
itant savings for counties, as some prosecutions would be brought at
state, rather than county, cost.
 
 
EFFECTIVE DATE:
The bill takes effect on the thirtieth day after which it has become
law.

A05617 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5617
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 11, 2017
                                       ___________
 
        Introduced  by  M. of A. PERRY, MOSLEY, GOTTFRIED, GANTT, COOK, PRETLOW,
          PEOPLES-STOKES, ROSENTHAL, CRESPO,  WEPRIN,  MOYA,  RODRIGUEZ,  QUART,
          KIM, PICHARDO, WALKER, BARRON, SEAWRIGHT, JOYNER, BLAKE -- Multi-Spon-
          sored  by  --  M. of A. CARROLL, DAVILA, ORTIZ, SIMON -- read once and
          referred to the Committee on Codes

        AN ACT to amend the executive law and the  criminal  procedure  law,  in
          relation to establishing the office of special investigation
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The executive law is amended by adding a new  section  70-b
     2  to read as follows:
     3    §  70-b.  Office  of special investigation.   1. There shall be estab-
     4  lished within the department of law an office of  special  investigation
     5  which  shall investigate and, if warranted, prosecute any alleged crimi-
     6  nal offense or offenses committed by a person who is a police officer as
     7  defined in subdivision thirty-four  of  section  1.20  of  the  criminal
     8  procedure law, or a peace officer as defined in subdivision thirty-three
     9  of  section 1.20 of the criminal procedure law, concerning the death, or
    10  the investigation of the death, of any person where such death  resulted
    11  from or potentially resulted from any encounter with such police officer
    12  or  peace officer, whether or not such person was in custody. The office
    13  shall have the powers and duties specified in subdivisions two and eight
    14  of section sixty-three of this article for purposes of this section, and
    15  shall possess and exercise all the  prosecutorial  powers  necessary  to
    16  investigate and, if warranted, prosecute such offenses, provided, howev-
    17  er,  that  approval,  direction  or  requirement  of the governor as may
    18  otherwise be required by such subdivisions shall not  be  required.  The
    19  jurisdiction  of  the office of special investigation shall displace and
    20  supersede in all ways the  authority  and  jurisdiction  of  the  county
    21  district   attorney  for  the  investigation  and  prosecution  of  such
    22  offenses. In any investigation and  prosecution  conducted  pursuant  to
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09913-01-7
        A. 5617                             2
 
     1  this  section, the district attorney shall only exercise such powers and
     2  perform such duties as designated to him or her by the office of special
     3  investigation. The office of special investigation within the department
     4  of  law  shall be headed by the deputy attorney general appointed by the
     5  attorney general pursuant to subdivision three of this section.
     6    2. (a) In any investigation and  prosecution  undertaken  pursuant  to
     7  this  section, the office of special investigation shall conduct a full,
     8  reasoned, and independent investigation including, but not  limited  to:
     9  (i)  gathering  and  analyzing  evidence; (ii) conducting witness inter-
    10  views; and (iii) reviewing and commissioning any necessary investigative
    11  and scientific reports, and reviewing audio and video recordings.
    12    (b) In all matters pursuant to subdivision one of  this  section,  the
    13  deputy attorney general, appointed pursuant to subdivision three of this
    14  section, may appear in person or by any assistant attorney general he or
    15  she  may designate before any court or grand jury in the state and exer-
    16  cise all of the powers and perform all of the  duties  with  respect  to
    17  such  actions or proceedings which the district attorney would otherwise
    18  be authorized or required to exercise or perform.
    19    3. Notwithstanding any other provision of law,  the  attorney  general
    20  shall, without civil service examination, appoint and employ, fix his or
    21  her  compensation,  and at his or her pleasure remove, a deputy attorney
    22  general in charge of the office of special investigation.  The  attorney
    23  general  may, and without civil service examination, appoint and employ,
    24  and at pleasure remove, such assistant deputies, investigators and other
    25  persons as he or she deems necessary, determine  their  duties  and  fix
    26  their compensation.
    27    4.  (a) Where an investigation or prosecution of the type described in
    28  subdivision one of this section involves acts that appear to  have  been
    29  engaged in by a police officer or peace officer employed by the state of
    30  New  York, the attorney general shall promptly apply to a superior court
    31  in the county in which such acts allegedly occurred for the  appointment
    32  of  an independent counsel to investigate and potentially prosecute such
    33  matter. Notwithstanding the provisions of  any  other  law,  such  court
    34  shall  thereupon  appoint  a  qualified and experienced attorney at law,
    35  capable of investigating and prosecuting such matter, not employed as  a
    36  district  attorney,  assistant  district  attorney or assistant attorney
    37  general, and having no personal or professional conflicts  of  interest,
    38  to  act  as  an  independent  counsel  with respect to such matter, at a
    39  reasonable and appropriate hourly rate to be set by such court.
    40    (b) The attorney general shall promptly notify the state  comptroller,
    41  the  court  and  the  public  when  such  appointment  has been made and
    42  accepted by such attorney.  Reasonable fees for attorneys  and  investi-
    43  gation  and  litigation  expenses  shall  be  paid  by the state to such
    44  private counsel from time to time during the pendency  of  the  investi-
    45  gation and any prosecution and appeal, upon the audit and warrant of the
    46  comptroller.  Any  dispute  with respect to the payment of such fees and
    47  expenses shall be resolved by the court upon  motion  or  by  way  of  a
    48  special proceeding.
    49    (c)  In  all  matters pursuant to subdivision one of this section, the
    50  independent counsel appointed pursuant to this subdivision shall possess
    51  and exercise the powers and duties of the  office  of  special  investi-
    52  gation  pursuant  to  subdivisions  one and two of this section, and may
    53  appear in person or by any assistant independent counsel he or  she  may
    54  designate  before  any court or grand jury in the state and exercise all
    55  of the powers and perform all of the duties with respect to such actions
        A. 5617                             3
 
     1  or proceedings which the district attorney would otherwise be authorized
     2  or required to exercise or perform.
     3    5. (a) With respect to any investigation pursuant to this section, the
     4  office  of special investigation or the independent counsel, as the case
     5  may be, shall, as a part of the duties under this section,  prepare  and
     6  publicly  release  a  report on all cases where: (i) the office or inde-
     7  pendent counsel, as the case may be, declines to present evidence  to  a
     8  grand  jury  regarding the death of a person as described in subdivision
     9  one of this section; or (ii)  the  grand  jury  declines  to  return  an
    10  indictment on any felony charges.
    11    (b)  The report shall include: (i) with respect to subparagraph (i) of
    12  paragraph (a) of this subdivision, an explanation as to why such  office
    13  or  independent  counsel  declined  to present evidence to a grand jury;
    14  (ii) with respect to subparagraph (ii) of paragraph (a) of this subdivi-
    15  sion, a report of the outcome of the grand jury proceedings and, to  the
    16  greatest  extent possible, an explanation of that outcome; and (iii) any
    17  recommendations for systemic or other reforms arising from the  investi-
    18  gation.
    19    6.  Six  months  after  this subdivision takes effect, and annually on
    20  such date thereafter, the office of special investigation shall issue  a
    21  report,  which  shall  be made available to the public and posted on the
    22  website of the department of law, which shall provide information on the
    23  matters  investigated  by  such  office,  and  by  independent   counsel
    24  appointed  pursuant  to  subdivision  four  of this section, during such
    25  reporting period. The information presented shall include,  but  not  be
    26  limited  to:  the county and geographic location of each matter investi-
    27  gated; a description of the circumstances of each case; racial,  ethnic,
    28  age,  gender  and  other  demographic information concerning the persons
    29  involved or alleged to be involved;  information  concerning  whether  a
    30  criminal  charge  or  charges  were filed against any person involved or
    31  alleged to be involved in such matter; the nature of such  charges;  and
    32  the status or, where applicable, outcome with respect to all such crimi-
    33  nal  charges.  Such  report  shall  also include recommendations for any
    34  systemic or other reforms recommended  as  a  result  of  such  investi-
    35  gations.
    36    §  2. Subdivision 6 of section 190.25 of the criminal procedure law is
    37  amended to read as follows:
    38    6. (a) The legal advisors of the grand jury  are  the  court  and  the
    39  district  attorney,  and  the  grand  jury may not seek or receive legal
    40  advice from any other source.  Where necessary or appropriate, the court
    41  or the district attorney, or both, must instruct the grand jury concern-
    42  ing the law with respect to its duties or any matter before it, and such
    43  instructions must be recorded in the minutes.
    44    (b) Notwithstanding paragraph (a) of this subdivision,  or  any  other
    45  law to the contrary, in any proceeding before a grand jury that involves
    46  the  submission  of  a  criminal  charge  or charges against a person or
    47  persons for an act or acts that occurred at a time when such person  was
    48  a  police  officer  or  peace officer, and that concern the death of any
    49  person that resulted from or potentially  resulted  from  any  encounter
    50  with such police officer or peace officer, the court, after consultation
    51  on  the  record with the prosecutor, shall instruct the grand jury as to
    52  the criminal charge or charges to be submitted and the law applicable to
    53  such charges and to the matters before such grand jury.  Thereafter, any
    54  questions, requests for exhibits, requests for readback of testimony  or
    55  other requests from the grand jury or a member thereof shall be provided
        A. 5617                             4
 
     1  to  the  court,  and  addressed  by  the court after consultation on the
     2  record with the prosecutor.
     3    (c)  Notwithstanding  the  provisions  of  subdivision  four  of  this
     4  section, or any other law to the contrary, following final action by the
     5  grand jury on the charge or charges submitted pursuant to paragraph  (b)
     6  of  this  subdivision,  the court shall make such legal instructions and
     7  charges submitted to such grand jury available to the public on request,
     8  provided that the names of witnesses  and  any  information  that  would
     9  identify  such  witnesses included in such legal instructions or charges
    10  shall be redacted when the court determines, in a written order released
    11  to the public, and issued after notice to the people and  the  requester
    12  and  an  opportunity  to  be  heard and reasonable efforts to notify and
    13  provide an opportunity to be heard to any other  appropriate  person  or
    14  agency,  that  there  is  a reasonable likelihood that public release of
    15  such information would endanger any individual.
    16    (d) Nothing in this paragraph or paragraphs (b) or (c) of this  subdi-
    17  vision shall be interpreted as limiting or restricting any broader right
    18  of  access  to  grand  jury materials under any other law, common law or
    19  court precedent.
    20    § 3. This act shall take effect on the thirtieth day  after  it  shall
    21  have become a law.

A05617 LFIN:

 
NO LFIN