NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8634A
SPONSOR: Perry TITLE OF BILL: An act to amend the judiciary law, in relation to
establishing the commission on prosecutorial conduct
PURPOSE:
The purpose of this legislation is to create the commission on prosecu-
torial conduct, to serve as a disciplinary entity designated to review
complaints of prosecutorial misconduct in New York State, to enforce the
obligation of prosecutors to observe acceptable standards of conduct,
and to establish reasonable accountability for the conduct of prosecu-
tors during the performance of their functions, powers and duties as
prosecutors. The commission on prosecutorial conduct is modeled after
legislation that established the state commission on judicial conduct.
SUMMARY OF PROVISIONS:
The judiciary law is amended by adding a new Article 15-A, entitled
"State Commission on Prosecutorial Conduct" hereinafter referred to as
"the commission" which contains Sections 499-a through 499-i.
Section 499-a of Article 15A establishes definitions for the purposes of
the article, including the definitions of commission, prosecutor, hear-
ing and member of the bar.
Section 499-b Article 15A establishes the commission on prosecutorial
conduct, which shall consist of eleven members, of whom two shall be
appointed by the governor, two by the temporary president of the senate,
one by the minority leader of the senate, two by the speaker of the
assembly, one by the minority leader of the assembly and three by the
chief judge of the court of appeals.
Section 499-c of Article 15A establishes the functions., powers and
duties of the commission which includes, but is not limited to, hearings
and investigations, subpoenaing witnesses, requesting information, and
annually reporting to the governor, the legislature and the chief judge
of the court of appeals.
Section 499-d of Article 15A authorizes the commission to designate a
three member panel.
Section 1: The commission may delegate any of its functions, powers and
duties to a panel of three of its members, one of whom shall be a member
of the bar, except that no panel shall confer immunity in accordance
with section 50.20 of the criminal procedure law.
Section 2: The commission may also designate a member of the bar who is
not a prosecutor or a member of the commission or its staff as a referee
to hear and report to the commission in accordance with the provisions
of section four hundred ninety-nine-f of this article.
Section 499-e of Article 15A:
Sections 1 through 8 authorize the commission to receive, initiate
investigate and hear complaints with respect to the conduct, qualifica-
tions, fitness to perform, or performance of official duties of any
prosecutor, and may determine that a prosecutor be admonished, censured
or removed from office for cause, including, but not limited to, miscon-
duct in office, persistent failure to perform his or her duties, habitu-
al intemperance and conduct in and outside of his or her office, preju-
dicial to the administration of justice, or that a prosecutor be retired
for mental or physical disability preventing the proper performance of
his or her prosecutorial duties.
Sections 9 and 10 provide that the court of appeals may suspend a prose-
cutor from exercising the powers of his or her office while there is a
pending determination by the commission for his or her removal or
retirement, or while he or she is charged in this state with a felony by
an indictment, or an information filed pursuant to section six of arti-
cle one of the constitution, or any other crime which involves moral
turpitude.
Section 499-f of Article 15A establishes the confidentiality of records
wherein all complaints, correspondence, commission proceedings and tran-
scripts thereof of the commission shall be confidential and shall not be
made available to any person except pursuant to section four hundred
ninety-nine-f of this article.
Section 499-g of Article 15A establishes for the breach of the confiden-
tiality of commission information wherein any staff member, employee or
agent of the state commission on prosecutorial conduct who violates any
of the provisions of section four hundred ninety-nine-g of this article,
shall be subject to a reprimand, a fine, or suspension or removal by the
commission.
Section 499-h of Article 15A establishes that the jurisdiction of the
court of appeals and the commission pursuant to this article shall
continue notwithstanding that a prosecutor resigns from office after a
determination of the commission that a prosecutor be removed_from
office. has been transmitted to chief judge of the court of appeals.
Any 'determination by the court of appeals a that prosecutor who has
resigned should be removed from office shall render such prosecutor
ineligible to hold any other prosecutorial office.
Section 499-i of Article 15A clarifies that the powers of the prosecuto-
rial conduct commission shall not supersede the powers of the governor
to remove a district attorney as outlined in the state constitution. It
also clarifies that if a district attorney is removed from office pursu-
ant to this section, that removal shall constitute a removal pursuant to
the public officers law.
JUSTIFICATION:
Creating a State Commission on Prosecutorial Conduct, mirroring the
existing Commission on Judicial Conduct, will allow a fair procedure for
the public to voice concerns regarding improper prosecution, lack of
prosecution and selective prosecution. Members of the Commission,
appointed by the Governor, legislative leaders, and the Chief Judge of
the Court of Appeals, will have jurisdiction to receive complaints and
initiate their own investigation when it appears prosecutorial miscon-
duct may have occurred. The commission will ensure the right to a fair
trial by enforcing the obligation of prosecutors to observe acceptable
standards of conduct, and to establish accountability for the conduct of
prosecutors during the performance of their functions, powers and
duties.
Prosecutors have an extraordinary amount of discretion regarding inves-
tigation and prosecution of charges. They have wide latitude in deter-
mining how to prosecute, and whether to prosecute certain offenses
against certain defendants. It is vitally important there exist in law a
tribunal to oversee that discretion, to protect the rights of defendants
and make certain they are not violated. The liberties at stake in crimi-
nal prosecutions call for this level of scrutiny.
The Commission will allow citizens to voice their concerns over improper
prosecution, and will have the ability to discipline a prosecutor or
allow him or her to clear their name of wrongdoing. This Commission is
modeled after the Commission on Judicial Conduct, a successful entity
that exists for many of the same reasons, as judges too have wide
discretion that must be examined to ensure individual rights are not
being violated. Both Commissions would exist to protect the integrity of
the criminal justice system in New York.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS:
$5.5M when fully operational
EFFECTIVE DATE:
This act shall take effect on January 1, 2015.
