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S02574 Summary:

BILL NOS02574A
 
SAME ASSAME AS A01601-A
 
SPONSORBAILEY
 
COSPNSRBENJAMIN, BIAGGI, COMRIE, HOYLMAN, JACKSON, LIU, MONTGOMERY, MYRIE, PARKER, RAMOS, RIVERA, SALAZAR, SANDERS, SERRANO
 
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--A
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    January 28, 2019
                                       ___________
 
        Introduced by Sens. BAILEY, BENJAMIN, BIAGGI, HOYLMAN, JACKSON, MONTGOM-
          ERY,  MYRIE, PARKER, RAMOS, SALAZAR, SERRANO -- read twice and ordered
          printed, and when printed to be committed to the Committee on Codes --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee

        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.
                                                                   LBD05660-03-9

        S. 2574--A                          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

        S. 2574--A                          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

        S. 2574--A                          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 first of April next  succeeding
    21  the date upon which it shall have become a law.
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