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.
