|SAME AS||SAME AS A01601|
|COSPNSR||BENJAMIN, HOYLMAN, MONTGOMERY, PARKER, SALAZAR|
|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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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. LBD05660-01-9S. 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 caseS. 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.