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S02574 Summary:

BILL NOS02574
 
SAME ASSAME AS A01601
 
SPONSORBAILEY
 
COSPNSRBENJAMIN, HOYLMAN, MONTGOMERY, PARKER, SALAZAR
 
MLTSPNSR
 
Add 70-b, Exec L; amd 190.25, CP L
 
Establishes the office of special investigation within the department of law to investigate and prosecute any alleged criminal offense or offenses committed by a police officer or peace officer, concerning the death of any person as a result of any encounter with such police officer or peace officer.
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S02574 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2574
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    January 28, 2019
                                       ___________
 
        Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
          printed to be committed 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
    23  this  section, the district attorney shall only exercise such powers and
    24  perform such duties as designated to him or her by the office of special
    25  investigation. The office of special investigation within the department
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05660-01-9

        S. 2574                             2
 
     1  of law shall be headed by the deputy attorney general appointed  by  the
     2  attorney general pursuant to subdivision three of this section.
     3    2.  (a)  In  any  investigation and prosecution undertaken pursuant to
     4  this section, the office of special investigation shall conduct a  full,
     5  reasoned,  and  independent investigation including, but not limited to:
     6  (i) gathering and analyzing evidence;  (ii)  conducting  witness  inter-
     7  views; and (iii) reviewing and commissioning any necessary investigative
     8  and scientific reports, and reviewing audio and video recordings.
     9    (b)  In  all  matters pursuant to subdivision one of this section, the
    10  deputy attorney general, appointed pursuant to subdivision three of this
    11  section, may appear in person or by any assistant attorney general he or
    12  she may designate before any court or grand jury in the state and  exer-
    13  cise  all  of  the  powers and perform all of the duties with respect to
    14  such actions or proceedings which the district attorney would  otherwise
    15  be authorized or required to exercise or perform.
    16    3.  Notwithstanding  any  other provision of law, the attorney general
    17  shall, without civil service examination, appoint and employ, fix his or
    18  her compensation, and at his or her pleasure remove, a  deputy  attorney
    19  general  in  charge of the office of special investigation. The attorney
    20  general may, and without civil service examination, appoint and  employ,
    21  and at pleasure remove, such assistant deputies, investigators and other
    22  persons  as  he  or  she deems necessary, determine their duties and fix
    23  their compensation.
    24    4. (a) Where an investigation or prosecution of the type described  in
    25  subdivision  one  of this section involves acts that appear to have been
    26  engaged in by a police officer or peace officer employed by the state of
    27  New York, the attorney general shall promptly apply to a superior  court
    28  in  the county in which such acts allegedly occurred for the appointment
    29  of an independent counsel to investigate and potentially prosecute  such
    30  matter.  Notwithstanding  the  provisions  of  any other law, such court
    31  shall thereupon appoint a qualified and  experienced  attorney  at  law,
    32  capable  of investigating and prosecuting such matter, not employed as a
    33  district attorney, assistant district  attorney  or  assistant  attorney
    34  general,  and  having no personal or professional conflicts of interest,
    35  to act as an independent counsel with  respect  to  such  matter,  at  a
    36  reasonable and appropriate hourly rate to be set by such court.
    37    (b)  The attorney general shall promptly notify the state comptroller,
    38  the court and the  public  when  such  appointment  has  been  made  and
    39  accepted  by  such attorney.  Reasonable fees for attorneys and investi-
    40  gation and litigation expenses shall  be  paid  by  the  state  to  such
    41  private  counsel  from  time to time during the pendency of the investi-
    42  gation and any prosecution and appeal, upon the audit and warrant of the
    43  comptroller. Any dispute with respect to the payment of  such  fees  and
    44  expenses  shall  be  resolved  by  the  court upon motion or by way of a
    45  special proceeding.
    46    (c) In all matters pursuant to subdivision one of  this  section,  the
    47  independent counsel appointed pursuant to this subdivision shall possess
    48  and  exercise  the  powers  and duties of the office of special investi-
    49  gation pursuant to subdivisions one and two of  this  section,  and  may
    50  appear  in  person or by any assistant independent counsel he or she may
    51  designate before any court or grand jury in the state and  exercise  all
    52  of the powers and perform all of the duties with respect to such actions
    53  or proceedings which the district attorney would otherwise be authorized
    54  or required to exercise or perform.
    55    5. (a) With respect to any investigation pursuant to this section, the
    56  office  of special investigation or the independent counsel, as the case

        S. 2574                             3
 
     1  may be, shall, as a part of the duties under this section,  prepare  and
     2  publicly  release  a  report on all cases where: (i) the office or inde-
     3  pendent counsel, as the case may be, declines to present evidence  to  a
     4  grand  jury  regarding the death of a person as described in subdivision
     5  one of this section; or (ii)  the  grand  jury  declines  to  return  an
     6  indictment on any felony charges.
     7    (b)  The report shall include: (i) with respect to subparagraph (i) of
     8  paragraph (a) of this subdivision, an explanation as to why such  office
     9  or  independent  counsel  declined  to present evidence to a grand jury;
    10  (ii) with respect to subparagraph (ii) of paragraph (a) of this subdivi-
    11  sion, a report of the outcome of the grand jury proceedings and, to  the
    12  greatest  extent possible, an explanation of that outcome; and (iii) any
    13  recommendations for systemic or other reforms arising from the  investi-
    14  gation.
    15    6.  Six  months  after  this subdivision takes effect, and annually on
    16  such date thereafter, the office of special investigation shall issue  a
    17  report,  which  shall  be made available to the public and posted on the
    18  website of the department of law, which shall provide information on the
    19  matters  investigated  by  such  office,  and  by  independent   counsel
    20  appointed  pursuant  to  subdivision  four  of this section, during such
    21  reporting period. The information presented shall include,  but  not  be
    22  limited  to:  the county and geographic location of each matter investi-
    23  gated; a description of the circumstances of each case; racial,  ethnic,
    24  age,  gender  and  other  demographic information concerning the persons
    25  involved or alleged to be involved;  information  concerning  whether  a
    26  criminal  charge  or  charges  were filed against any person involved or
    27  alleged to be involved in such matter; the nature of such  charges;  and
    28  the status or, where applicable, outcome with respect to all such crimi-
    29  nal  charges.  Such  report  shall  also include recommendations for any
    30  systemic or other reforms recommended  as  a  result  of  such  investi-
    31  gations.
    32    §  2. Subdivision 6 of section 190.25 of the criminal procedure law is
    33  amended to read as follows:
    34    6. (a) The legal advisors of the grand jury  are  the  court  and  the
    35  district  attorney,  and  the  grand  jury may not seek or receive legal
    36  advice from any other source.  Where necessary or appropriate, the court
    37  or the district attorney, or both, must instruct the grand jury concern-
    38  ing the law with respect to its duties or any matter before it, and such
    39  instructions must be recorded in the minutes.
    40    (b) Notwithstanding paragraph (a) of this subdivision,  or  any  other
    41  law to the contrary, in any proceeding before a grand jury that involves
    42  the  submission  of  a  criminal  charge  or charges against a person or
    43  persons for an act or acts that occurred at a time when such person  was
    44  a  police  officer  or  peace officer, and that concern the death of any
    45  person that resulted from or potentially  resulted  from  any  encounter
    46  with such police officer or peace officer, the court, after consultation
    47  on  the  record with the prosecutor, shall instruct the grand jury as to
    48  the criminal charge or charges to be submitted and the law applicable to
    49  such charges and to the matters before such grand jury.  Thereafter, any
    50  questions, requests for exhibits, requests for readback of testimony  or
    51  other requests from the grand jury or a member thereof shall be provided
    52  to  the  court,  and  addressed  by  the court after consultation on the
    53  record with the prosecutor.
    54    (c)  Notwithstanding  the  provisions  of  subdivision  four  of  this
    55  section, or any other law to the contrary, following final action by the
    56  grand  jury on the charge or charges submitted pursuant to paragraph (b)

        S. 2574                             4
 
     1  of this subdivision, the court shall make such  legal  instructions  and
     2  charges submitted to such grand jury available to the public on request,
     3  provided  that  the  names  of  witnesses and any information that would
     4  identify  such  witnesses included in such legal instructions or charges
     5  shall be redacted when the court determines, in a written order released
     6  to the public, and issued after notice to the people and  the  requester
     7  and  an  opportunity  to  be  heard and reasonable efforts to notify and
     8  provide an opportunity to be heard to any other  appropriate  person  or
     9  agency,  that  there  is  a reasonable likelihood that public release of
    10  such information would endanger any individual.
    11    (d) Nothing in this paragraph or paragraphs (b) or (c) of this  subdi-
    12  vision shall be interpreted as limiting or restricting any broader right
    13  of  access  to  grand  jury materials under any other law, common law or
    14  court precedent.
    15    § 3. This act shall take effect on the thirtieth day  after  it  shall
    16  have become a law.
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