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A05285 Summary:

BILL NOA05285C
 
SAME ASSAME AS S02412-D
 
SPONSORPerry (MS)
 
COSPNSRAbinanti, Arroyo, Aubry, Barron, Bichotte, Bronson, Cahill, Davila, Dickens, Dinowitz, Gantt, Gottfried, Hevesi, Hyndman, Jean-Pierre, Jenne, Kim, Magnarelli, Montesano, Mosley, Ortiz, Pretlow, Richardson, Rivera, Rodriguez, Seawright, Sepulveda, Simotas, Solages, Steck, Titus, Vanel, Walker, Williams, Jaffee, D'Urso, Peoples-Stokes, Wright, Ramos, Englebright, Hikind, Colton, Thiele, De La Rosa, Skartados, Joyner, Stirpe, Dilan, Rosenthal L, Quart, Hunter, Taylor, Errigo, Fernandez, Lupardo, Espinal
 
MLTSPNSRCarroll, Cook, Fahy, Hooper, Lentol, Magee, McDonald, Niou, O'Donnell, Pichardo, Simon
 
Add Art 15-A 499-a - 499-j, Judy L
 
Establishes the commission on prosecutorial conduct.
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A05285 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5285C
 
SPONSOR: Perry (MS)
  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: Section one of the bill adds Article 15-A to the judiciary law entitled "State Commission on Prosecutorial Conduct" hereinafter referred to as "the commission" which contains Sections 499-a through 499-j. § 499-a establishes the commission on prosecutorial conduct. § 499-b provides definitions for the purposes of the article, including the definitions of commission, prosecutor, hearing, and member of the bar. § 499-c establishes the organization of the commission. The commission 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. § 499-d 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. § 499-e authorizes the commission to designate a three member panel. Subdivision 1 allows the commission to 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. Subdivi- sion 2 authorizes the commission to designate a member of the bar who is not a prosecutor, 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. § 499-f establishes the process relating to the complaint, investi- gation, hearing, and disposition. Subdivisions 1 through 8 authorize the commission to receive, initiate, investigate, and hear complaints with respect to the conduct, qualifications, fitness to perform, or perform- ance 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, misconduct in office, persistent failure to perform his or her duties, habitual intemperance and conduct in and outside of his or her office, prejudicial to the administration of justice, or that a prosecutor be retired for mental or physical disabil- ity preventing the proper performance of his or her prosecutorial duties. Subdivisions 9 and 10 provide that the court of appeals may suspend a prosecutor 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 article one of the constitution, or any other crime which involves moral turpitude. Subdivision 11 requires the commission to no tify the complainant of its disposition of the complaint and subdivision 12 declares that a vacancy shall exist in the event a prosecutor is removed from office. § 499-g establishes the confidentiality of records wherein all complaints, correspondence, commission proceedings and transcripts ther- eof of the commission shall be confidential and shall not be made avail- able to any person except pursuant to section four hundred nine-nine-f of this article. § 499-h establishes for the breach of the confidentiality 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. 499-i 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 that a prosecutor who has resigned should be removed from office shall render such prosecutor ineligible to hold any other prosecutorial office. § 499-j clarifies that the powers of the prosecutorial conduct commis- sion shall not supersede the powers of the governor to remove a district attorney as outlined in the state constitution. This section also clari- fies that if a district attorney is removed from office pursuant to this section, that removal shall constitute a removal pursuant to the public officers law. Section two of the bill provides that if any part of the act shall be adjudged as unconstitutional or invalid, it shall not affect or impair any other part or provision of this act, but shall be confined in its operation to such part or provision. Section three of the bill provides the effective date.   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 investigation and prosecution of charges. They have wide latitude in determining 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 defend- ants, and make certain they are not violated. The liberties at stake in criminal 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: 2016: A.1131-B/S.24-B - Third Reading Calendar / Third Reading Calendar 2015: A.1131/S.24 - Referred to Rules / Third Reading Calendar 2014: A.8634-A/S.6286-A - Referred to Rules / Finance   FISCAL IMPLICATIONS: $5.5M when fully operational   EFFECTIVE DATE: First of January next succeeding the date upon which it shall have become a law.
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A05285 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5285--C
                                                                Cal. No. 376
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 7, 2017
                                       ___________
 
        Introduced by M. of A. PERRY, ABINANTI, ARROYO, AUBRY, BARRON, BICHOTTE,
          BRONSON,  CAHILL, DAVILA, DICKENS, DINOWITZ, GANTT, GOTTFRIED, HARRIS,
          HEVESI,  HYNDMAN,  JEAN-PIERRE,  JENNE,  KIM,  MAGNARELLI,  MONTESANO,
          MOSLEY,  ORTIZ,  PRETLOW,  RICHARDSON,  RIVERA,  RODRIGUEZ, SEAWRIGHT,
          SEPULVEDA, SIMOTAS, SOLAGES, STECK, TITUS,  VANEL,  WALKER,  WILLIAMS,
          JAFFEE,  D'URSO,  PEOPLES-STOKES,  WRIGHT, RAMOS, ENGLEBRIGHT, HIKIND,
          COLTON,  THIELE,  DE LA ROSA,  SKARTADOS,   JOYNER,   STIRPE,   DILAN,
          L. ROSENTHAL, QUART, HUNTER -- Multi-Sponsored by -- M. of A. CARROLL,
          COOK, FAHY, HOOPER, LENTOL, LUPARDO, MAGEE, McDONALD, NIOU, O'DONNELL,
          PICHARDO,  SIMON -- read once and referred to the Committee on Judici-
          ary -- reported and referred to the Committee on  Codes  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said  committee  -- reported and referred to the Committee on Ways
          and Means -- reported and  referred  to  the  Committee  on  Rules  --
          amended  on  the  special order of third reading, ordered reprinted as
          amended, retaining its place on the special order of third reading  --
          ordered  to  a third reading, amended and ordered reprinted, retaining
          its place on the order of third reading
 
        AN ACT to amend the judiciary  law,  in  relation  to  establishing  the
          commission on prosecutorial conduct
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The judiciary law is amended by adding a new  article  15-A
     2  to read as follows:
     3                                ARTICLE 15-A
     4                  STATE COMMISSION ON PROSECUTORIAL CONDUCT
     5  Section 499-a. Establishment of commission.
     6          499-b. Definitions.
     7          499-c. State commission on prosecutorial conduct; organization.
     8          499-d. Functions; powers and duties.
     9          499-e. Panels; referees.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08062-08-8

        A. 5285--C                          2
 
     1          499-f. Complaint; investigation; hearing and disposition.
     2          499-g. Confidentiality of records.
     3          499-h. Breach of confidentiality of commission information.
     4          499-i. Resignation  not to divest commission or court of appeals
     5                   of jurisdiction.
     6          499-j. Effect.
     7    § 499-a. Establishment of commission. A state commission of prosecuto-
     8  rial conduct is  hereby  established.  The  commission  shall  have  the
     9  authority  to  review  the  conduct  of prosecutors upon the filing of a
    10  complaint with the commission  to  determine  whether  said  conduct  as
    11  alleged  departs  from the applicable statutes, case law, New York Rules
    12  of Professional Conduct, 22 NYCRR 1200, including  but  not  limited  to
    13  Rule  3.8  (Special Responsibilities of Prosecutors and Other Government
    14  Lawyers).
    15    § 499-b. Definitions. For the purposes of this article  the  following
    16  terms have the following meanings:
    17    1. "Commission" means the state commission on prosecutorial conduct.
    18    2.  "Prosecutor"  means  a district attorney or any assistant district
    19  attorney of any county of the state in an action to exact  any  criminal
    20  penalty, fine, sanction or forfeiture.
    21    3. "Hearing" means a proceeding under subdivision four of section four
    22  hundred ninety-nine-f of this article.
    23    4.  "Member of the bar" means a person admitted to the practice of law
    24  in this state for at least five years.
    25    § 499-c. State commission on prosecutorial conduct; organization.   1.
    26  The  commission  shall  consist  of eleven members, of whom two shall be
    27  appointed by the governor, two by the temporary president of the senate,
    28  one by the minority leader of the senate, two  by  the  speaker  of  the
    29  assembly,  one  by  the minority leader of the assembly and three by the
    30  chief judge of the court of appeals. Of the  members  appointed  by  the
    31  governor  one  shall be a public defender and one shall be a prosecutor.
    32  Of the members appointed by the  chief  judge  one  person  shall  be  a
    33  justice  of the appellate division of the supreme court and two shall be
    34  judges of courts other than the court of appeals or appellate  division.
    35  Of  the  members appointed by the legislative leaders, there shall be an
    36  equal number of prosecutors and attorneys  providing  defense  services;
    37  provided,  however, that a temporary imbalance in the number of prosecu-
    38  tors and defense attorneys pending new appointments  shall  not  prevent
    39  the commission from conducting business.
    40    2.  Membership  on the commission by a prosecutor shall not constitute
    41  the holding of a public office and no prosecutor shall  be  required  to
    42  take  and  file  an oath of office before serving on the commission. The
    43  members of the commission shall elect one of their number  to  serve  as
    44  chairman  during his or her term of office or for a period of two years,
    45  whichever is shorter.
    46    3. The persons first appointed by the governor shall have respectively
    47  three and four year terms as he or  she  shall  designate.  The  persons
    48  first  appointed  by  the chief judge of the court of appeals shall have
    49  respectively two, three and four year terms as he or  she  shall  desig-
    50  nate.  The  persons  first  appointed  by the temporary president of the
    51  senate shall have respectively three and four year terms as  he  or  she
    52  shall  designate.  The  person first appointed by the minority leader of
    53  the senate shall have a two year term. The persons  first  appointed  by
    54  the  speaker of the assembly shall have respectively three and four year
    55  terms as he or she shall designate. The person first  appointed  by  the
    56  minority  leader  of  the  assembly shall have a three   year term. Each

        A. 5285--C                          3
 
     1  member of the commission shall be appointed thereafter  for  a  term  of
     2  four years. Commission membership of a judge or justice appointed by the
     3  governor  or  the  chief  judge shall terminate if such member ceases to
     4  hold  the judicial position which qualified him or her for such appoint-
     5  ment. Membership shall also terminate if a  member  attains  a  position
     6  which  would  have rendered him or her ineligible for appointment at the
     7  time of his or her  appointment.  A  vacancy  shall  be  filled  by  the
     8  appointing officer for the remainder of the term.
     9    4. If a member of the commission who is a prosecutor is the subject of
    10  a  complaint or investigation with respect to his or her qualifications,
    11  conduct, fitness to perform  or  performance  of  his  or  her  official
    12  duties,  he  or  she shall be disqualified from participating in any and
    13  all proceedings with respect thereto.  If a member of the commission  is
    14  employed  in  the  same  organization  as  the subject of a complaint or
    15  investigation with  respect  to  his  or  her  qualifications,  conduct,
    16  fitness  to perform, or performance of his or her official duties, he or
    17  she shall be disqualified from participating in any and all  proceedings
    18  with respect thereto.
    19    5.  Each  member of the commission shall serve without salary or other
    20  compensation, but shall be entitled  to  receive  actual  and  necessary
    21  expenses incurred in the discharge of his or her duties.
    22    6.  For any action taken pursuant to subdivisions four through nine of
    23  section four hundred ninety-nine-f or subdivision two  of  section  four
    24  hundred  ninety-nine-e  of this article, eight members of the commission
    25  shall constitute a quorum of the commission and the concurrence  of  six
    26  members  of  the  commission  shall be necessary. Two members of a three
    27  member panel of the commission shall constitute a quorum  of  the  panel
    28  and  the  concurrence of two members of the panel shall be necessary for
    29  any action taken.
    30    7. The commission shall appoint and at pleasure may remove an adminis-
    31  trator who shall be a member of the bar  who  is  not  a  prosecutor  or
    32  retired prosecutor. The administrator of the commission may appoint such
    33  deputies,  assistants,  counsel,  investigators  and  other officers and
    34  employees as he or she may deem necessary, prescribe  their  powers  and
    35  duties,  fix  their  compensation and provide for reimbursement of their
    36  expenses within the amounts appropriated therefor.
    37    § 499-d. Functions; powers and duties. The commission shall  have  the
    38  following functions, powers and duties:
    39    1.  To conduct hearings and investigations, administer oaths or affir-
    40  mations, subpoena witnesses, compel their attendance, examine them under
    41  oath or affirmation and require the production of  any  books,  records,
    42  documents  or other evidence that it may deem relevant or material to an
    43  investigation; and the commission may designate any of  its  members  or
    44  any  member of its staff to exercise any such powers, provided, however,
    45  that except as is otherwise provided in  section  four  hundred  ninety-
    46  nine-e  of this article, only a member of the commission or the adminis-
    47  trator shall exercise the power to subpoena  witnesses  or  require  the
    48  production  of  books, records, documents or other evidence.  The prose-
    49  cuting agency may inform the commission of its position that the commis-
    50  sion's investigations will substantially interfere with the agency's own
    51  investigation or prosecution. If the prosecuting agency, by  affirmation
    52  with  specificity and particularity, informs the commission of its basis
    53  for that position, the commission shall only exercise its  powers  in  a
    54  way  that  will  not  interfere with an agency's active investigation or
    55  prosecution.

        A. 5285--C                          4
 
     1    2. To confer immunity when the commission deems it necessary and prop-
     2  er in accordance with section  50.20  of  the  criminal  procedure  law;
     3  provided,  however, that at least forty-eight hours prior written notice
     4  of the commission's intention to  confer  such  immunity  is  given  the
     5  attorney general and the appropriate district attorney.
     6    3. To request and receive from any court, department, division, board,
     7  bureau,  commission,  or other agency of the state or political subdivi-
     8  sion thereof or any public authority such  assistance,  information  and
     9  data  as  will enable it properly to carry out its functions, powers and
    10  duties.
    11    4. To report annually, on or before the first day  of  March  in  each
    12  year  and at such other times as the commission shall deem necessary, to
    13  the governor, the legislature and  the  chief  judge  of  the  court  of
    14  appeals,  with respect to proceedings which have been finally determined
    15  by the commission. Such reports may include legislative and  administra-
    16  tive  recommendations.  The  contents of the annual report and any other
    17  report shall conform to the  provisions  of  this  article  relating  to
    18  confidentiality.
    19    5.  To  adopt, promulgate, amend and rescind rules and procedures, not
    20  otherwise inconsistent with law, necessary to carry out  the  provisions
    21  and  purposes  of this article.   All such rules and procedures shall be
    22  filed in the offices of the chief administrator of the  courts  and  the
    23  secretary of state.
    24    6.  To  do  all other things necessary and convenient to carry out its
    25  functions, powers and duties expressly set forth in this article.
    26    § 499-e. Panels; referees. 1. The commission may delegate any  of  its
    27  functions,  powers and duties to a panel of three of its members, one of
    28  whom shall be a member of the bar, except that  no  panel  shall  confer
    29  immunity in accordance with section 50.20 of the criminal procedure law.
    30  No panel shall be authorized to take any action pursuant to subdivisions
    31  four  through nine of section four hundred ninety-nine-f of this article
    32  or subdivision two of this section.
    33    2. The commission may designate a member of  the  bar  who  is  not  a
    34  prosecutor  or  a  member of the commission or its staff as a referee to
    35  hear and report to the commission in accordance with the  provisions  of
    36  section  four  hundred ninety-nine-f of this article. Such referee shall
    37  be empowered to conduct  hearings,  administer  oaths  or  affirmations,
    38  subpoena  witnesses, compel their attendance, examine them under oath or
    39  affirmation and require the production of any books, records,  documents
    40  or  other evidence that the referee may deem relevant or material to the
    41  subject of the hearing.
    42    § 499-f. Complaint; investigation; hearing and disposition.  1.    The
    43  commission shall receive, initiate, investigate and hear complaints with
    44  respect  to the conduct, qualifications, fitness to perform, or perform-
    45  ance of official duties of any prosecutor,  and  may  determine  that  a
    46  prosecutor  be admonished, or censured; and make a recommendation to the
    47  governor that a prosecutor  be  removed  from  office  for  cause,  for,
    48  including, but not limited to, misconduct in office, as evidenced by his
    49  or  her departure from his or her obligations under appropriate statute,
    50  case law, and/or New York Rules of Professional Conduct, 22 NYCRR  1200,
    51  including  but  not  limited  to  Rule  3.8 (Special Responsibilities of
    52  Prosecutors and Other Government Lawyers), persistent failure to perform
    53  his or her duties, habitual intemperance and conduct, in and outside  of
    54  his or her office, prejudicial to the administration of justice, or that
    55  a prosecutor be retired for mental or physical disability preventing the
    56  proper performance of his or her prosecutorial duties. A complaint shall

        A. 5285--C                          5
 
     1  be  in  writing  and  signed  by the complainant and, if directed by the
     2  commission, shall be verified. Upon  receipt  of  a  complaint  (a)  the
     3  commission  shall  conduct an investigation of the complaint; or (b) the
     4  commission may dismiss the complaint if it determines that the complaint
     5  on  its  face lacks merit. If the complaint is dismissed, the commission
     6  shall so notify the complainant. If the commission shall  have  notified
     7  the  prosecutor  of  the complaint, the commission shall also notify the
     8  prosecutor of such dismissal. Pursuant to  paragraph  a  of  subdivision
     9  four of section ninety of this chapter, any person being an attorney and
    10  counselor-at-law  who shall be convicted of a felony as defined in para-
    11  graph e of subdivision four of section ninety  of  this  chapter,  shall
    12  upon  such conviction, cease to be any attorney and counselor-at-law, or
    13  to be competent to practice law as such.
    14    2. The commission may, on its own motion, initiate an investigation of
    15  a prosecutor with respect to his or her qualifications, conduct, fitness
    16  to perform or the performance of his or her official  duties.  Prior  to
    17  initiating  any such investigation, the commission shall file as part of
    18  its record a written complaint,  signed  by  the  administrator  of  the
    19  commission,  which  complaint shall serve as the basis for such investi-
    20  gation.
    21    3. In the course of an investigation, the commission may  require  the
    22  appearance  of  the  prosecutor  involved  before it, in which event the
    23  prosecutor shall be notified in writing of his or her  required  appear-
    24  ance,  either  personally, at least three days prior to such appearance,
    25  or by certified mail, return receipt requested, at least five days prior
    26  to such appearance. In either case a copy  of  the  complaint  shall  be
    27  served  upon the prosecutor at the time of such notification. The prose-
    28  cutor shall have the right to be represented by counsel during  any  and
    29  all  stages  of  the  investigation  in  which  his or her appearance is
    30  required and to present evidentiary data and material  relevant  to  the
    31  complaint.  A  transcript  shall  be  made  and kept with respect to all
    32  proceedings at which testimony or statements under oath of any party  or
    33  witness shall be taken, and the transcript of the prosecutor's testimony
    34  shall  be made available to the prosecutor without cost. Such transcript
    35  shall be confidential except as  otherwise  permitted  by  section  four
    36  hundred ninety-nine-g of this article.
    37    4.  If  in  the  course of an investigation, the commission determines
    38  that a hearing is warranted  it  shall  direct  that  a  formal  written
    39  complaint  signed  and verified by the administrator be drawn and served
    40  upon the prosecutor involved, either personally or  by  certified  mail,
    41  return  receipt requested. The prosecutor shall file a written answer to
    42  the complaint with the commission within twenty days  of  such  service.
    43  If,  upon  receipt  of  the  answer,  or  upon expiration of the time to
    44  answer, the commission shall direct that a hearing be held with  respect
    45  to  the  complaint, the prosecutor involved shall be notified in writing
    46  of the date of the hearing either personally, at least twenty days prior
    47  thereto, or by certified mail, return receipt requested, at least  twen-
    48  ty-two  days  prior thereto. Upon the written request of the prosecutor,
    49  the commission shall, at least five days prior to  the  hearing  or  any
    50  adjourned  date  thereof,  make available to the prosecutor without cost
    51  copies of all documents which the commission intends to present at  such
    52  hearing  and any written statements made by witnesses who will be called
    53  to give testimony by the commission. The commission shall, in any  case,
    54  make available to the prosecutor at least five days prior to the hearing
    55  or any adjourned date thereof any exculpatory evidentiary data and mate-
    56  rial  relevant to the complaint. The failure of the commission to timely

        A. 5285--C                          6
 
     1  furnish any documents, statements and/or  exculpatory  evidentiary  data
     2  and  material  provided  for herein shall not affect the validity of any
     3  proceedings before the commission provided  that  such  failure  is  not
     4  substantially  prejudicial  to  the  prosecutor.  The complainant may be
     5  notified of the hearing and unless he or she shall be  subpoenaed  as  a
     6  witness  by  the prosecutor, his or her presence thereat shall be within
     7  the discretion of the commission. The hearing shall not be public unless
     8  the prosecutor involved shall so demand in writing. At the  hearing  the
     9  commission  may  take the testimony of witnesses and receive evidentiary
    10  data and material relevant to the complaint. The prosecutor  shall  have
    11  the  right to be represented by counsel during any and all stages of the
    12  hearing and shall have the right to call and cross-examine witnesses and
    13  present evidentiary data and material relevant to the complaint. A tran-
    14  script of the proceedings and of the testimony of witnesses at the hear-
    15  ing shall be taken and kept with the records of the commission.
    16    5. Subject to the approval of the commission,  the  administrator  and
    17  the  prosecutor  may  agree on a statement of facts and may stipulate in
    18  writing that the hearing shall be waived. In such a case, the commission
    19  shall make its determination upon the pleadings and the agreed statement
    20  of facts.
    21    6. If, after a formal written complaint has been  served  pursuant  to
    22  subdivision  four  of  this  section, or during the course of or after a
    23  hearing, the commission determines that no further action is  necessary,
    24  the  complaint shall be dismissed and the complainant and the prosecutor
    25  shall be so notified in writing.
    26    7. After a hearing, the commission may determine that a prosecutor  be
    27  admonished or censured, or may recommend to the governor that a prosecu-
    28  tor  be removed from office for cause. The commission shall transmit its
    29  written determination, together with its findings of  fact  and  conclu-
    30  sions  of  law and the record of the proceedings upon which its determi-
    31  nation is based, to the chief judge of the court of  appeals  who  shall
    32  cause  a  copy  thereof  to  be served either personally or by certified
    33  mail,  return  receipt  requested,  on  the  prosecutor  involved.  Upon
    34  completion of service, the determination of the commission, its findings
    35  and  conclusions  and the record of its proceedings shall be made public
    36  and shall be made available  for  public  inspection  at  the  principal
    37  office  of the commission and at the office of the clerk of the court of
    38  appeals. The prosecutor involved may either accept the determination  of
    39  the commission or make written request to the chief judge, within thirty
    40  days  after  receipt  of such determination, for a review thereof by the
    41  court of appeals. If the commission has determined that a prosecutor  be
    42  admonished or censured, and if the prosecutor accepts such determination
    43  or  fails  to  request  a  review  thereof  by the court of appeals, the
    44  commission shall thereupon admonish or censure him or her in  accordance
    45  with  its  findings. If the commission has recommended that a prosecutor
    46  be removed or retired and the prosecutor accepts such  determination  or
    47  fails  to request a review thereof by the court of appeals, the court of
    48  appeals shall thereupon transmit the commission's findings to the gover-
    49  nor who will independently determine whether the  prosecutor  should  be
    50  removed or retired.
    51    8.  If  the  prosecutor  requests a review of the determination of the
    52  commission, in its review of a determination of the commission  pursuant
    53  to  the  second undesignated paragraph of subdivision b of section three
    54  of article six of the state constitution, the  court  of  appeals  shall
    55  review  the  commission's findings of fact and conclusions of law on the
    56  record of the proceedings upon which the commission's determination  was

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     1  based.  After such review, the court may accept or reject the determined
     2  sanction; impose a different sanction including admonition  or  censure,
     3  recommend removal or retirement for the reasons set forth in subdivision
     4  one  of  this  section; or impose no sanction.  However, if the court of
     5  appeals recommends removal or retirement, it shall,  together  with  the
     6  commission,  transmit  the  entire record to the governor who will inde-
     7  pendently determine whether a prosecutor should be removed or retired.
     8    9. (a) The court of appeals may suspend a prosecutor  from  exercising
     9  the  powers  of his or her office while there is pending a determination
    10  by the commission for his or her removal or retirement, or while  he  or
    11  she is charged in this state with a felony by an indictment or an infor-
    12  mation filed pursuant to section six of article one of the constitution.
    13  The  suspension shall terminate upon conviction of a felony resulting in
    14  such prosecutor's disbarment pursuant to paragraph a of subdivision four
    15  of section ninety of this chapter. If such conviction becomes final,  he
    16  or she shall be removed from office.  The suspension shall be terminated
    17  upon  reversal of the conviction and dismissal of the accusatory instru-
    18  ment.
    19    (b) Upon the recommendation of the commission or on  its  own  motion,
    20  the court may suspend a prosecutor from office when he or she is charged
    21  with a crime punishable as a felony under the laws of this state, or any
    22  other crime which involves moral turpitude.  The suspension shall termi-
    23  nate  upon conviction of a felony resulting in such prosecutor's disbar-
    24  ment pursuant to paragraph a of subdivision four of  section  ninety  of
    25  this chapter. The suspension shall continue upon conviction of any other
    26  crime  which  involves  moral  turpitude and, if such conviction becomes
    27  final, he or she shall be removed from office.  The suspension shall  be
    28  terminated  upon reversal of the conviction and dismissal of the accusa-
    29  tory instrument.
    30    (c) A prosecutor who is suspended  from  office  by  the  court  shall
    31  receive  his  or her salary during such period of suspension, unless the
    32  court directs otherwise. If the court has so directed and  such  suspen-
    33  sion is thereafter terminated, the court may direct that he or she shall
    34  be paid his or her salary for such period of suspension.
    35    (d)  Nothing  in  this  subdivision  shall prevent the commission from
    36  determining that a prosecutor be admonished or censured or  prevent  the
    37  commission  from recommending removal or retirement pursuant to subdivi-
    38  sion seven of this section.
    39    10. If during the course of or after an investigation or hearing,  the
    40  commission  determines  that  the  complaint  or  any allegation thereof
    41  warrants action, other than in accordance with the provisions of  subdi-
    42  visions  seven through nine of this section, within the powers of: (a) a
    43  person having administrative jurisdiction over the  prosecutor  involved
    44  in  the complaint; or (b) an appellate division of the supreme court; or
    45  (c) a presiding justice of an appellate division of the  supreme  court;
    46  or  (d)  the  chief  judge  of the court of appeals; or (e) the governor
    47  pursuant to subdivision (b) of section thirteen of article  thirteen  of
    48  the  constitution;  or  (f)  an applicable district attorney's office or
    49  other prosecuting agency, the commission shall refer such  complaint  or
    50  the appropriate allegations thereof and any evidence or material related
    51  thereto to such person, agency or court for such action as may be deemed
    52  proper or necessary.
    53    11.  The commission shall notify the complainant of its disposition of
    54  the complaint.
    55    12. In the event of removal from office of any prosecutor, pursuant to
    56  subdivision seven or eight or paragraph (a) or (b) of  subdivision  nine

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     1  of  this section, a vacancy shall exist pursuant to article three of the
     2  public officers law.
     3    §  499-g.  Confidentiality of records. Except as hereinafter provided,
     4  all complaints, correspondence, commission proceedings  and  transcripts
     5  thereof,  other  papers  and data and records of the commission shall be
     6  confidential and shall not be made available to any person except pursu-
     7  ant to section four hundred ninety-nine-f of this article.  The  commis-
     8  sion  and  its designated staff personnel shall have access to confiden-
     9  tial material in the performance of their powers and  duties.    If  the
    10  prosecutor  who  is  the  subject of a complaint so requests in writing,
    11  copies of the complaint, the transcripts of hearings by  the  commission
    12  thereon,  if  any,  and  the  dispositive  action of the commission with
    13  respect to the complaint, such copies with any reference to the identity
    14  of any person who did not  participate  at  any  such  hearing  suitably
    15  deleted  therefrom,  except the subject prosecutor or complainant, shall
    16  be made available for inspection and copying to the public,  or  to  any
    17  person, agency or body designated by such prosecutor.
    18    §  499-h.  Breach of confidentiality of commission information. 1. Any
    19  staff member, employee or agent of the state commission on prosecutorial
    20  conduct who violates any of the provisions of section four hundred nine-
    21  ty-nine-g of this article shall be  subject  to  a  reprimand,  a  fine,
    22  suspension or removal by the commission.
    23    2.  Within ten days after the commission has acquired knowledge that a
    24  staff member, employee or agent  of  the  commission  has  or  may  have
    25  breached  the  provisions  of section four hundred ninety-nine-g of this
    26  article, written charges against such staff member,  employee  or  agent
    27  shall be prepared and signed by the chairman of the commission and filed
    28  with  the  commission.  Within  five  days after receipt of charges, the
    29  commission shall determine, by a vote of the majority of all the members
    30  of the commission, whether probable cause for such  charges  exists.  If
    31  such determination is affirmative, within five days thereafter a written
    32  statement  specifying  the  charges  in  detail and outlining his or her
    33  rights under this section  shall  be  forwarded  to  the  accused  staff
    34  member,  employee or agent by certified mail. The commission may suspend
    35  the staff member, employee or agent, with or without  pay,  pending  the
    36  final determination of the charges. Within ten days after receipt of the
    37  statement  of  charges, the staff member, employee or agent shall notify
    38  the commission in writing whether he or she desires  a  hearing  on  the
    39  charges.  The  failure  of the staff member, employee or agent to notify
    40  the commission of his or her desire to have a hearing within such period
    41  of time shall be deemed a waiver of the right to a hearing. If the hear-
    42  ing has been waived, the commission shall proceed, within ten days after
    43  such waiver, by a vote of a majority of all the members of such  commis-
    44  sion,  to  determine  the  charges and fix the penalty or punishment, if
    45  any, to be imposed as hereinafter provided.
    46    3. Upon receipt of a request for a hearing, the commission shall sche-
    47  dule a hearing, to be held at the commission offices, within twenty days
    48  after receipt of the request therefor, and shall immediately  notify  in
    49  writing the staff member, employee or agent of the time and place there-
    50  of.
    51    4.  The  commission  shall have the power to establish necessary rules
    52  and procedures for the conduct of  hearings  under  this  section.  Such
    53  rules shall not require compliance with technical rules of evidence. All
    54  such  hearings  shall  be  held before a hearing panel composed of three
    55  members of the commission selected by the commission. Each hearing shall
    56  be conducted by the chairman of the panel who shall be selected  by  the

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     1  panel.  The  staff  member,  employee  or  agent shall have a reasonable
     2  opportunity to defend himself and to testify on his or her  own  behalf.
     3  He  or  she  shall  also have the right to be represented by counsel, to
     4  subpoena  witnesses  and to cross-examine witnesses. All testimony taken
     5  shall be under oath which the chairman of the panel is hereby authorized
     6  to administer. A record of the proceedings shall be made and a  copy  of
     7  the  transcript of the hearing shall, upon written request, be furnished
     8  without charge to the staff member, employee or agent involved.
     9    5. Within five days after the conclusion of a hearing, the panel shall
    10  forward a report of the hearing, including its findings and  recommenda-
    11  tions, including its recommendations as to penalty or punishment, if one
    12  is warranted, to the commission and to the accused staff member, employ-
    13  ee or agent. Within ten days after receipt of such report the commission
    14  shall  determine  whether  it shall implement the recommendations of the
    15  panel. If the commission shall determine to implement  such  recommenda-
    16  tions,  which  shall  include  the  penalty  or punishment, if any, of a
    17  reprimand, a fine, suspension for a fixed time without pay or dismissal,
    18  it shall do so within five days after such determination. If the charges
    19  against the staff member, employee or agent are  dismissed,  he  or  she
    20  shall be restored to his or her position with full pay for any period of
    21  suspension without pay and the charges shall be expunged from his or her
    22  record.
    23    6.  The accused staff member, employee or agent may seek review of the
    24  recommendation by the commission by way of a special proceeding pursuant
    25  to article seventy-eight of the civil practice law and rules.
    26    § 499-i. Resignation not to divest commission or court of  appeals  of
    27  jurisdiction.   The jurisdiction of the court of appeals and the commis-
    28  sion pursuant to this article  shall  continue  notwithstanding  that  a
    29  prosecutor  resigns from office after a recommendation by the commission
    30  that the prosecutor be removed from office has been transmitted  to  the
    31  chief judge of the court of appeals, or in any case in which the commis-
    32  sion's  recommendation  that  a prosecutor should be removed from office
    33  shall be transmitted to the chief judge of the court of  appeals  within
    34  one  hundred twenty days after receipt by the chief administrator of the
    35  courts of the resignation of such prosecutor. Any determination  by  the
    36  governor  that  a  prosecutor  who  has  resigned should be removed from
    37  office shall render such prosecutor ineligible to hold any other  prose-
    38  cutorial office.
    39    §  499-j.  Effect.  1.  The powers, duties, and functions of the state
    40  commission on prosecutorial conduct shall not supersede the  powers  and
    41  duties  of the governor as outlined in section thirteen of article thir-
    42  teen of the New York state constitution.
    43    2. Removal or retirement of a  prosecutor  pursuant  to  this  article
    44  shall  be considered a removal from office pursuant to section thirty of
    45  the public officers law.
    46    § 2. If any part or provision of this act is adjudged by  a  court  of
    47  competent jurisdiction to be unconstitutional or otherwise invalid, such
    48  judgment  shall not affect or impair any other part or provision of this
    49  act, but shall be confined in its operation to such part or provision.
    50    § 3. This act shall take effect on the first of January next  succeed-
    51  ing the date upon which it shall have become a law.
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