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.
