|SAME AS||SAME AS A01601-A|
|COSPNSR||BENJAMIN, BIAGGI, HOYLMAN, JACKSON, MONTGOMERY, MYRIE, PARKER, RAMOS, SALAZAR, SERRANO|
|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--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. LBD05660-03-9S. 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 actionsS. 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 providedS. 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.