|SAME AS||SAME AS S02412-D|
|COSPNSR||Abinanti, 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|
|MLTSPNSR||Carroll, 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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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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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. LBD08062-08-8A. 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. EachA. 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 shallA. 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 timelyA. 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 wasA. 5285--C 7 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 nineA. 5285--C 8 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 theA. 5285--C 9 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.