S00024 Summary:

BILL NOS00024B
 
SAME ASSAME AS A01131-B
 
SPONSORDEFRANCISCO
 
COSPNSRBOYLE, HASSELL-THOMPSON, KRUEGER, MONTGOMERY, PARKER, PERKINS, RIVERA, SANDERS
 
MLTSPNSR
 
Add Art 15-A 499-a - 499-j, Judy L
 
Establishes the commission on prosecutorial conduct.
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S00024 Actions:

BILL NOS00024B
 
01/07/2015REFERRED TO JUDICIARY
05/28/2015REPORTED AND COMMITTED TO FINANCE
06/09/2015REPORTED AND COMMITTED TO RULES
06/25/2015ORDERED TO THIRD READING CAL.1881
06/25/2015RECOMMITTED TO RULES
01/06/2016REFERRED TO JUDICIARY
02/01/2016AMEND AND RECOMMIT TO JUDICIARY
02/01/2016PRINT NUMBER 24A
05/04/2016REPORTED AND COMMITTED TO FINANCE
05/19/2016AMEND AND RECOMMIT TO FINANCE
05/19/2016PRINT NUMBER 24B
06/08/2016REPORTED AND COMMITTED TO RULES
06/16/2016ORDERED TO THIRD READING CAL.1899
06/17/2016RECOMMITTED TO RULES
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S00024 Memo:

Memo not available
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S00024 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          24--B
 
                               2015-2016 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 7, 2015
                                       ___________
 
        Introduced by Sens. DeFRANCISCO, AVELLA, BOYLE, HASSELL-THOMPSON, KRUEG-
          ER,  LATIMER, PARKER, PERKINS, RIVERA, SANDERS, SQUADRON -- read twice
          and ordered printed, and when printed to be committed to the Committee
          on Judiciary -- recommitted to the Committee on Judiciary  in  accord-
          ance with Senate Rule 6, sec. 8 -- committee discharged, bill amended,
          ordered  reprinted  as  amended  and  recommitted to said committee --
          reported favorably from said committee and committed to the  Committee
          on Finance -- committee discharged, bill amended, ordered reprinted as
          amended and recommitted to said committee
 
        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.
    10          499-f. Complaint; investigation; hearing and disposition.
    11          499-g. Confidentiality of records.
    12          499-h. Breach of confidentiality of commission information.
    13          499-i. Resignation not to divest commission or court of  appeals
    14                   of jurisdiction.
    15          499-j. Effect.
    16    § 499-a. Establishment of commission. A state commission of prosecuto-
    17  rial  conduct  is  hereby  established.  The  commission  shall have the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01145-05-6

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

        S. 24--B                            3
 
     1  ment. Membership shall also terminate if a  member  attains  a  position
     2  which  would  have rendered him or her ineligible for appointment at the
     3  time of his or her  appointment.  A  vacancy  shall  be  filled  by  the
     4  appointing officer for the remainder of the term.
     5    4. If a member of the commission who is a prosecutor is the subject of
     6  a  complaint or investigation with respect to his or her qualifications,
     7  conduct, fitness to perform  or  performance  of  his  or  her  official
     8  duties,  he  or  she shall be disqualified from participating in any and
     9  all proceedings with respect thereto.  If a member of the commission  is
    10  employed  in  the  same  organization  as  the subject of a complaint or
    11  investigation with  respect  to  his  or  her  qualifications,  conduct,
    12  fitness  to perform, or performance of his or her official duties, he or
    13  she shall be disqualified from participating in any and all  proceedings
    14  with respect thereto.
    15    5.  Each  member of the commission shall serve without salary or other
    16  compensation, but shall be entitled  to  receive  actual  and  necessary
    17  expenses incurred in the discharge of his or her duties.
    18    6.  For any action taken pursuant to subdivisions four through nine of
    19  section four hundred ninety-nine-f or subdivision two  of  section  four
    20  hundred  ninety-nine-e  of this article, eight members of the commission
    21  shall constitute a quorum of the commission and the concurrence  of  six
    22  members  of  the  commission  shall be necessary. Two members of a three
    23  member panel of the commission shall constitute a quorum  of  the  panel
    24  and  the  concurrence of two members of the panel shall be necessary for
    25  any action taken.
    26    7. The commission shall appoint and at pleasure may remove an adminis-
    27  trator who shall be a member of the bar  who  is  not  a  prosecutor  or
    28  retired prosecutor. The administrator of the commission may appoint such
    29  deputies,  assistants,  counsel,  investigators  and  other officers and
    30  employees as he or she may deem necessary, prescribe  their  powers  and
    31  duties,  fix  their  compensation and provide for reimbursement of their
    32  expenses within the amounts appropriated therefor.
    33    § 499-d. Functions; powers and duties. The commission shall  have  the
    34  following functions, powers and duties:
    35    1.  To conduct hearings and investigations, administer oaths or affir-
    36  mations, subpoena witnesses, compel their attendance, examine them under
    37  oath or affirmation and require the production of  any  books,  records,
    38  documents  or other evidence that it may deem relevant or material to an
    39  investigation; and the commission may designate any of  its  members  or
    40  any  member of its staff to exercise any such powers, provided, however,
    41  that except as is otherwise provided in  section  four  hundred  ninety-
    42  nine-e  of this article, only a member of the commission or the adminis-
    43  trator shall exercise the power to subpoena  witnesses  or  require  the
    44  production of books, records, documents or other evidence.
    45    2. To confer immunity when the commission deems it necessary and prop-
    46  er  in  accordance  with  section  50.20  of the criminal procedure law;
    47  provided, however, that at least forty-eight hours prior written  notice
    48  of  the  commission's  intention  to  confer  such immunity is given the
    49  attorney general and the appropriate district attorney.
    50    3. To request and receive from any court, department, division, board,
    51  bureau, commission, or other agency of the state or  political  subdivi-
    52  sion  thereof  or  any public authority such assistance, information and
    53  data as will enable it properly to carry out its functions,  powers  and
    54  duties.
    55    4.  To  report  annually,  on or before the first day of March in each
    56  year and at such other times as the commission shall deem necessary,  to

        S. 24--B                            4
 
     1  the  governor,  the  legislature  and  the  chief  judge of the court of
     2  appeals, with respect to proceedings which have been finally  determined
     3  by  the commission. Such reports may include legislative and administra-
     4  tive  recommendations.  The  contents of the annual report and any other
     5  report shall conform to the  provisions  of  this  article  relating  to
     6  confidentiality.
     7    5.  To  adopt, promulgate, amend and rescind rules and procedures, not
     8  otherwise inconsistent with law, necessary to carry out  the  provisions
     9  and  purposes  of this article.   All such rules and procedures shall be
    10  filed in the offices of the chief administrator of the  courts  and  the
    11  secretary of state.
    12    6.  To  do  all other things necessary and convenient to carry out its
    13  functions, powers and duties expressly set forth in this article.
    14    § 499-e. Panels; referees. 1. The commission may delegate any  of  its
    15  functions,  powers and duties to a panel of three of its members, one of
    16  whom shall be a member of the bar, except that  no  panel  shall  confer
    17  immunity in accordance with section 50.20 of the criminal procedure law.
    18  No panel shall be authorized to take any action pursuant to subdivisions
    19  four  through nine of section four hundred ninety-nine-f of this article
    20  or subdivision two of this section.
    21    2. The commission may designate a member of  the  bar  who  is  not  a
    22  prosecutor  or  a  member of the commission or its staff as a referee to
    23  hear and report to the commission in accordance with the  provisions  of
    24  section  four  hundred ninety-nine-f of this article. Such referee shall
    25  be empowered to conduct  hearings,  administer  oaths  or  affirmations,
    26  subpoena  witnesses, compel their attendance, examine them under oath or
    27  affirmation and require the production of any books, records,  documents
    28  or  other evidence that the referee may deem relevant or material to the
    29  subject of the hearing.
    30    § 499-f. Complaint; investigation; hearing and disposition.  1.    The
    31  commission shall receive, initiate, investigate and hear complaints with
    32  respect  to the conduct, qualifications, fitness to perform, or perform-
    33  ance of official duties of any prosecutor,  and  may  determine  that  a
    34  prosecutor  be admonished, or censured; and make a recommendation to the
    35  governor that a prosecutor  be  removed  from  office  for  cause,  for,
    36  including, but not limited to, misconduct in office, as evidenced by his
    37  or  her departure from his or her obligations under appropriate statute,
    38  caselaw, and/or New York Rules of Professional Conduct, 22  NYCRR  1200,
    39  including  but  not  limited  to  Rule  3.8 (Special Responsibilities of
    40  Prosecutors and Other Government Lawyers), persistent failure to perform
    41  his or her duties, habitual intemperance and conduct, in and outside  of
    42  his or her office, prejudicial to the administration of justice, or that
    43  a prosecutor be retired for mental or physical disability preventing the
    44  proper performance of his or her prosecutorial duties. A complaint shall
    45  be  in  writing  and  signed  by the complainant and, if directed by the
    46  commission, shall be verified. Upon  receipt  of  a  complaint  (a)  the
    47  commission  shall  conduct an investigation of the complaint; or (b) the
    48  commission may dismiss the complaint if it determines that the complaint
    49  on its face lacks merit. If the complaint is dismissed,  the  commission
    50  shall  so  notify the complainant. If the commission shall have notified
    51  the prosecutor of the complaint, the commission shall  also  notify  the
    52  prosecutor of such dismissal.
    53    2. The commission may, on its own motion, initiate an investigation of
    54  a prosecutor with respect to his or her qualifications, conduct, fitness
    55  to  perform  or  the performance of his or her official duties. Prior to
    56  initiating any such investigation, the commission shall file as part  of

        S. 24--B                            5
 
     1  its  record  a  written  complaint,  signed  by the administrator of the
     2  commission, which complaint shall serve as the basis for  such  investi-
     3  gation.
     4    3.  In  the course of an investigation, the commission may require the
     5  appearance of the prosecutor involved before  it,  in  which  event  the
     6  prosecutor  shall  be notified in writing of his or her required appear-
     7  ance, either personally, at least three days prior to  such  appearance,
     8  or by certified mail, return receipt requested, at least five days prior
     9  to  such  appearance.  In  either  case a copy of the complaint shall be
    10  served upon the prosecutor at the time of such notification. The  prose-
    11  cutor  shall  have the right to be represented by counsel during any and
    12  all stages of the investigation  in  which  his  or  her  appearance  is
    13  required  and  to  present evidentiary data and material relevant to the
    14  complaint. A transcript shall be made  and  kept  with  respect  to  all
    15  proceedings  at which testimony or statements under oath of any party or
    16  witness shall be taken, and the transcript of the prosecutor's testimony
    17  shall be made available to the prosecutor without cost. Such  transcript
    18  shall  be  confidential  except  as  otherwise permitted by section four
    19  hundred ninety-nine-g of this article.
    20    4. If in the course of an  investigation,  the  commission  determines
    21  that  a  hearing  is  warranted  it  shall  direct that a formal written
    22  complaint signed and verified by the administrator be drawn  and  served
    23  upon  the  prosecutor  involved, either personally or by certified mail,
    24  return receipt requested. The prosecutor shall file a written answer  to
    25  the  complaint  with  the commission within twenty days of such service.
    26  If, upon receipt of the answer,  or  upon  expiration  of  the  time  to
    27  answer,  the commission shall direct that a hearing be held with respect
    28  to the complaint, the prosecutor involved shall be notified  in  writing
    29  of the date of the hearing either personally, at least twenty days prior
    30  thereto,  or by certified mail, return receipt requested, at least twen-
    31  ty-two days prior thereto. Upon the written request of  the  prosecutor,
    32  the  commission  shall,  at  least five days prior to the hearing or any
    33  adjourned date thereof, make available to the  prosecutor  without  cost
    34  copies  of all documents which the commission intends to present at such
    35  hearing and any written statements made by witnesses who will be  called
    36  to  give testimony by the commission. The commission shall, in any case,
    37  make available to the prosecutor at least five days prior to the hearing
    38  or any adjourned date thereof any exculpatory evidentiary data and mate-
    39  rial relevant to the complaint. The failure of the commission to  timely
    40  furnish  any  documents,  statements and/or exculpatory evidentiary data
    41  and material provided for herein shall not affect the  validity  of  any
    42  proceedings  before  the  commission  provided  that such failure is not
    43  substantially prejudicial to the  prosecutor.  The  complainant  may  be
    44  notified  of  the  hearing and unless he or she shall be subpoenaed as a
    45  witness by the prosecutor, his or her presence thereat shall  be  within
    46  the discretion of the commission. The hearing shall not be public unless
    47  the  prosecutor  involved shall so demand in writing. At the hearing the
    48  commission may take the testimony of witnesses and  receive  evidentiary
    49  data  and  material relevant to the complaint. The prosecutor shall have
    50  the right to be represented by counsel during any and all stages of  the
    51  hearing and shall have the right to call and cross-examine witnesses and
    52  present evidentiary data and material relevant to the complaint. A tran-
    53  script of the proceedings and of the testimony of witnesses at the hear-
    54  ing shall be taken and kept with the records of the commission.
    55    5.  Subject  to  the approval of the commission, the administrator and
    56  the prosecutor may agree on a statement of facts and  may  stipulate  in

        S. 24--B                            6

     1  writing that the hearing shall be waived. In such a case, the commission
     2  shall make its determination upon the pleadings and the agreed statement
     3  of facts.
     4    6.  If,  after  a formal written complaint has been served pursuant to
     5  subdivision four of this section, or during the course  of  or  after  a
     6  hearing,  the commission determines that no further action is necessary,
     7  the complaint shall be dismissed and the complainant and the  prosecutor
     8  shall be so notified in writing.
     9    7.  After a hearing, the commission may determine that a prosecutor be
    10  admonished or censured, or may recommend to the governor that a prosecu-
    11  tor be removed from office for cause. The commission shall transmit  its
    12  written  determination,  together  with its findings of fact and conclu-
    13  sions of law and the record of the proceedings upon which  its  determi-
    14  nation  is  based,  to the chief judge of the court of appeals who shall
    15  cause a copy thereof to be served  either  personally  or  by  certified
    16  mail,  return  receipt  requested,  on  the  prosecutor  involved.  Upon
    17  completion of service, the determination of the commission, its findings
    18  and conclusions and the record of its proceedings shall be  made  public
    19  and  shall  be  made  available  for  public inspection at the principal
    20  office of the commission and at the office of the clerk of the court  of
    21  appeals.  The prosecutor involved may either accept the determination of
    22  the commission or make written request to the chief judge, within thirty
    23  days after receipt of such determination, for a review  thereof  by  the
    24  court  of appeals. If the commission has determined that a prosecutor be
    25  admonished or censured, and if the prosecutor accepts such determination
    26  or fails to request a review  thereof  by  the  court  of  appeals,  the
    27  commission  shall thereupon admonish or censure him or her in accordance
    28  with its findings. If the commission has and the court of appeals recom-
    29  mends that a prosecutor be removed it shall transmit the commission  and
    30  court  of appeals findings to the governor who will independently deter-
    31  mine whether the prosecutor should be removed or retired.
    32    8. If the prosecutor requests a review of  the  determination  of  the
    33  commission,  in  its  review  of  a determination of the commission, the
    34  court of appeals shall review the  commission's  findings  of  fact  and
    35  conclusions  of  law  on  the  record  of the proceedings upon which the
    36  commission's determination was based. After such review, the  court  may
    37  accept  or  reject  the determined sanction; impose a different sanction
    38  including admonition or censure, recommend removal or retirement for the
    39  reasons set forth in subdivision one of this section; or impose no sanc-
    40  tion.  However, if the court of appeals determines  removal  or  retire-
    41  ment, it shall, together with the commission, transmit the entire record
    42  to  the  governor  who will independently determine whether a prosecutor
    43  should be removed or retired.
    44    9. (a) The court of appeals may suspend a prosecutor  from  exercising
    45  the  powers  of his or her office while there is pending a determination
    46  by the commission for his or her removal or retirement, or while  he  or
    47  she is charged in this state with a felony by an indictment or an infor-
    48  mation filed pursuant to section six of article one of the constitution.
    49  The  suspension  shall  continue  upon conviction and, if the conviction
    50  becomes final, he or she shall be removed from office by  the  governor.
    51  The  suspension  shall be terminated upon reversal of the conviction and
    52  dismissal of the accusatory instrument.
    53    (b) Upon the recommendation of the commission or on  its  own  motion,
    54  the court may suspend a prosecutor from office when he or she is charged
    55  with a crime punishable as a felony under the laws of this state, or any
    56  other crime which involves moral turpitude. The suspension shall contin-

        S. 24--B                            7
 
     1  ue upon conviction and, if the conviction becomes final, he or she shall
     2  be removed from office. The suspension shall be terminated upon reversal
     3  of the conviction and dismissal of the accusatory instrument.
     4    (c)  A  prosecutor  who  is  suspended  from office by the court shall
     5  receive his or her salary during such period of suspension,  unless  the
     6  court  directs  otherwise. If the court has so directed and such suspen-
     7  sion is thereafter terminated, the court may direct that he or she shall
     8  be paid his or her salary for such period of suspension.
     9    (d) Nothing in this subdivision  shall  prevent  the  commission  from
    10  determining  that  a prosecutor be admonished or censured or prevent the
    11  commission from recommending removal or retirement pursuant to  subdivi-
    12  sion seven of this section.
    13    10.  If during the course of or after an investigation or hearing, the
    14  commission determines that  the  complaint  or  any  allegation  thereof
    15  warrants  action, other than in accordance with the provisions of subdi-
    16  visions seven through nine of this section, within the powers of: (a)  a
    17  person  having  administrative jurisdiction over the prosecutor involved
    18  in the complaint; or (b) an appellate division of the supreme court;  or
    19  (c)  a  presiding justice of an appellate division of the supreme court;
    20  or (d) the chief judge of the court of  appeals;  or  (e)  the  governor
    21  pursuant  to  subdivision (b) of section thirteen of article thirteen of
    22  the constitution; or (f) an applicable  district  attorney's  office  or
    23  other  prosecuting  agency, the commission shall refer such complaint or
    24  the appropriate allegations thereof and any evidence or material related
    25  thereto to such person, agency or court for such action as may be deemed
    26  proper or necessary.
    27    11. The commission shall notify the complainant of its disposition  of
    28  the complaint.
    29    12.  In the event of removal from office by the governor of any prose-
    30  cutor, a vacancy shall exist pursuant to article  three  of  the  public
    31  officers law.
    32    §  499-g.  Confidentiality of records. Except as hereinafter provided,
    33  all complaints, correspondence, commission proceedings  and  transcripts
    34  thereof,  other  papers  and data and records of the commission shall be
    35  confidential and shall not be made available to any person except pursu-
    36  ant to section four hundred ninety-nine-f of this article.  The  commis-
    37  sion  and  its designated staff personnel shall have access to confiden-
    38  tial material in the performance of their powers and  duties.    If  the
    39  prosecutor  who  is  the  subject of a complaint so requests in writing,
    40  copies of the complaint, the transcripts of hearings by  the  commission
    41  thereon,  if  any,  and  the  dispositive  action of the commission with
    42  respect to the complaint, such copies with any reference to the identity
    43  of any person who did not  participate  at  any  such  hearing  suitably
    44  deleted  therefrom,  except the subject prosecutor or complainant, shall
    45  be made available for inspection and copying to the public,  or  to  any
    46  person, agency or body designated by such prosecutor.
    47    §  499-h.  Breach of confidentiality of commission information. 1. Any
    48  staff member, employee or agent of the state commission on prosecutorial
    49  conduct who violates any of the provisions of section four hundred nine-
    50  ty-nine-g of this article shall be  subject  to  a  reprimand,  a  fine,
    51  suspension or removal by the commission.
    52    2.  Within ten days after the commission has acquired knowledge that a
    53  staff member, employee or agent  of  the  commission  has  or  may  have
    54  breached  the  provisions  of section four hundred ninety-nine-g of this
    55  article, written charges against such staff member,  employee  or  agent
    56  shall be prepared and signed by the chairman of the commission and filed

        S. 24--B                            8
 
     1  with  the  commission.  Within  five  days after receipt of charges, the
     2  commission shall determine, by a vote of the majority of all the members
     3  of the commission, whether probable cause for such  charges  exists.  If
     4  such determination is affirmative, within five days thereafter a written
     5  statement  specifying  the  charges  in  detail and outlining his or her
     6  rights under this section  shall  be  forwarded  to  the  accused  staff
     7  member,  employee or agent by certified mail. The commission may suspend
     8  the staff member, employee or agent, with or without  pay,  pending  the
     9  final determination of the charges. Within ten days after receipt of the
    10  statement  of  charges, the staff member, employee or agent shall notify
    11  the commission in writing whether he or she desires  a  hearing  on  the
    12  charges.  The  failure  of the staff member, employee or agent to notify
    13  the commission of his or her desire to have a hearing within such period
    14  of time shall be deemed a waiver of the right to a hearing. If the hear-
    15  ing has been waived, the commission shall proceed, within ten days after
    16  such waiver, by a vote of a majority of all the members of such  commis-
    17  sion,  to  determine  the  charges and fix the penalty or punishment, if
    18  any, to be imposed as hereinafter provided.
    19    3. Upon receipt of a request for a hearing, the commission shall sche-
    20  dule a hearing, to be held at the commission offices, within twenty days
    21  after receipt of the request therefor, and shall immediately  notify  in
    22  writing the staff member, employee or agent of the time and place there-
    23  of.
    24    4.  The  commission  shall have the power to establish necessary rules
    25  and procedures for the conduct of  hearings  under  this  section.  Such
    26  rules shall not require compliance with technical rules of evidence. All
    27  such  hearings  shall  be  held before a hearing panel composed of three
    28  members of the commission selected by the commission. Each hearing shall
    29  be conducted by the chairman of the panel who shall be selected  by  the
    30  panel.  The  staff  member,  employee  or  agent shall have a reasonable
    31  opportunity to defend himself and to testify on his or her  own  behalf.
    32  He  or  she  shall  also have the right to be represented by counsel, to
    33  subpoena witnesses and to cross-examine witnesses. All  testimony  taken
    34  shall be under oath which the chairman of the panel is hereby authorized
    35  to  administer.  A record of the proceedings shall be made and a copy of
    36  the transcript of the hearing shall, upon written request, be  furnished
    37  without charge to the staff member, employee or agent involved.
    38    5. Within five days after the conclusion of a hearing, the panel shall
    39  forward  a report of the hearing, including its findings and recommenda-
    40  tions, including its recommendations as to penalty or punishment, if one
    41  is warranted, to the commission and to the accused staff member, employ-
    42  ee or agent. Within ten days after receipt of such report the commission
    43  shall determine whether it shall implement the  recommendations  of  the
    44  panel.  If  the commission shall determine to implement such recommenda-
    45  tions, which shall include the penalty  or  punishment,  if  any,  of  a
    46  reprimand, a fine, suspension for a fixed time without pay or dismissal,
    47  it shall do so within five days after such determination. If the charges
    48  against  the  staff  member,  employee or agent are dismissed, he or she
    49  shall be restored to his or her position with full pay for any period of
    50  suspension without pay and the charges shall be expunged from his or her
    51  record.
    52    6. The accused staff member, employee or agent may seek review of  the
    53  recommendation by the commission by way of a special proceeding pursuant
    54  to article seventy-eight of the civil practice law and rules.
    55    §  499-i.  Resignation not to divest commission or court of appeals of
    56  jurisdiction.  The jurisdiction of the court of appeals and the  commis-

        S. 24--B                            9
 
     1  sion  pursuant  to  this  article  shall continue notwithstanding that a
     2  prosecutor resigns from office after a recommendation by the  commission
     3  that  the  prosecutor be removed from office has been transmitted to the
     4  chief judge of the court of appeals, or in any case in which the commis-
     5  sion's  recommendation  that  a prosecutor should be removed from office
     6  shall be transmitted to the chief judge of the court of  appeals  within
     7  one  hundred twenty days after receipt by the chief administrator of the
     8  courts of the resignation of such prosecutor. Any determination  by  the
     9  governor  that  a  prosecutor  who  has  resigned should be removed from
    10  office shall render such prosecutor ineligible to hold any other  prose-
    11  cutorial office.
    12    §  499-j.  Effect.  1.  The powers, duties, and functions of the state
    13  commission on prosecutorial conduct shall not supersede the  powers  and
    14  duties  of the governor as outlined in section thirteen of article thir-
    15  teen of the New York state constitution.
    16    2. Removal or retirement of a  prosecutor  pursuant  to  this  article
    17  shall  be considered a removal from office pursuant to section thirty of
    18  the public officers law.
    19    § 2. If any part or provision of this act is adjudged by  a  court  of
    20  competent jurisdiction to be unconstitutional or otherwise invalid, such
    21  judgment  shall not affect or impair any other part or provision of this
    22  act, but shall be confined in its operation to such part or provision.
    23    § 3. This act shall take effect January 1, 2017.
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