STATE OF NEW YORK
________________________________________________________________________
8179
2013-2014 Regular Sessions
IN ASSEMBLY
September 27, 2013
___________
Introduced by M. of A. PERRY -- read once and referred to the Committee
on Judiciary
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. Definitions.
6 499-b. State commission on prosecutorial conduct; organization.
7 499-c. Effect.
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-a. 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 any person who represents the state or a poli-
19 tical subdivision of the state in an action to exact a penalty, fine,
20 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.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11393-03-3
A. 8179 2
1 § 499-b. State commission on prosecutorial conduct; organization. 1.
2 A state commission on prosecutorial conduct is hereby established. The
3 commission shall consist of eleven members, of whom four shall be
4 appointed by the governor, one by the temporary president of the senate,
5 one by the minority leader of the senate, one by the speaker of the
6 assembly, one by the minority leader of the assembly and three by the
7 chief judge of the court of appeals. Of the members appointed by the
8 governor one person shall be a member of the bar of the state but not a
9 prosecutor, one shall not be a member of the bar, one shall be a public
10 defender and one shall be a prosecutor. Of the members appointed by the
11 chief judge one person shall be a justice of the appellate division of
12 the supreme court and two shall be judges of courts other than the court
13 of appeals or appellate. Of the members appointed by the legislative
14 leaders, there shall be an equal number of prosecutors and attorneys
15 providing defense services; provided, however, that a temporary imbal-
16 ance in the number of prosecutors and defense attorneys pending new
17 appointments shall not prevent the commission from conducting business.
18 2. Membership on the commission by a prosecutor shall not constitute
19 the holding of a public office and no prosecutor shall be required to
20 take and file an oath of office before serving on the commission. The
21 members of the commission shall elect one of their number to serve as
22 chairman during his or her term of office or for a period of two years,
23 whichever is shorter.
24 3. The persons first appointed by the governor shall have respectively
25 one, two, three, and four year terms as he or she shall designate. The
26 persons first appointed by the chief judge of the court of appeals shall
27 have respectively two, three and four year terms as he or she shall
28 designate. The person first appointed by the temporary president of the
29 senate shall have a one year term. The person first appointed by the
30 minority leader of the senate shall have a two year term. The person
31 first appointed by the speaker of the assembly shall have a four year
32 term. The person first appointed by the minority leader of the assembly
33 shall have a three year term. Each member of the commission shall be
34 appointed thereafter for a term of four years. Commission membership of
35 a prosecutor appointed by the governor or the chief judge shall termi-
36 nate if such member ceases to hold the position which qualified him for
37 such appointment. Membership shall also terminate if a member attains a
38 position which would have rendered him ineligible for appointment at the
39 time of his or her appointment. A vacancy shall be filled by the
40 appointing officer for the remainder of the term.
41 4. If a member of the commission who is a prosecutor is the subject of
42 a complaint or investigation with respect to his or her qualifications,
43 conduct, fitness to perform or performance of his or her official
44 duties, he or she shall be disqualified from participating in any and
45 all proceedings with respect thereto.
46 5. Each member of the commission shall serve without salary or other
47 compensation, but shall be entitled to receive actual and necessary
48 expenses incurred in the discharge of his or her duties.
49 6. For any action taken pursuant to subdivisions four through nine of
50 section four hundred ninety-nine-f or subdivision two of section four
51 hundred ninety-nine-e of this article, eight members of the commission
52 shall constitute a quorum of the commission and the concurrence of six
53 members of the commission shall be necessary. Two members of a three
54 member panel of the commission shall constitute a quorum of the panel
55 and the concurrence of two members of the panel shall be necessary for
56 any action taken.
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1 7. The commission shall appoint and at pleasure may remove an adminis-
2 trator who shall be a member of the bar who is not a prosecutor or
3 retired prosecutor. The administrator of the commission may appoint such
4 deputies, assistants, counsel, investigators and other officers and
5 employees as he or she may deem necessary, prescribe their powers and
6 duties, fix their compensation and provide for reimbursement of their
7 expenses within the amounts appropriated therefor.
8 § 499-c. Effect. The powers, duties, and functions of the state
9 commission on prosecutorial conduct shall not supersede the powers and
10 duties of the governor as outlined in section three of article four of
11 the New York state constitution.
12 § 499-d. Functions; powers and duties. The commission shall have the
13 following functions, powers and duties:
14 1. To conduct hearings and investigations, administer oaths or affir-
15 mations, subpoena witnesses, compel their attendance, examine them under
16 oath or affirmation and require the production of any books, records,
17 documents or other evidence that it may deem relevant or material to an
18 investigation; and the commission may designate any of its members or
19 any member of its staff to exercise any such powers, provided, however,
20 that except as is otherwise provided in section four hundred ninety-
21 nine-e of this article, only a member of the commission or the adminis-
22 trator shall exercise the power to subpoena witnesses or require the
23 production of books, records, documents or other evidence.
24 2. To confer immunity when the commission deems it necessary and prop-
25 er in accordance with section 50.20 of the criminal procedure law;
26 provided, however, that at least forty-eight hours prior written notice
27 of the commission's intention to confer such immunity is given the
28 attorney general and the appropriate district attorney.
29 3. To request and receive from any court, department, division, board,
30 bureau, commission, or other agency of the state or political subdivi-
31 sion thereof or any public authority such assistance, information and
32 data as will enable it properly to carry out its functions, powers and
33 duties.
34 4. To report annually, on or before the first day of March in each
35 year and at such other times as the commission shall deem necessary, to
36 the governor, the legislature and the chief judge of the court of
37 appeals, with respect to proceedings which have been finally determined
38 by the commission. Such reports may include legislative and administra-
39 tive recommendations. The contents of the annual report and any other
40 report shall conform to the provisions of this article relating to
41 confidentiality.
42 5. To adopt, promulgate, amend and rescind rules and procedures, not
43 otherwise inconsistent with law, necessary to carry out the provisions
44 and purposes of this article. All such rules and procedures shall be
45 filed in the offices of the chief administrator of the courts and the
46 secretary of state.
47 6. To do all other things necessary and convenient to carry out its
48 functions, powers and duties expressly set forth in this article.
49 § 499-e. Panels; referees. 1. The commission may delegate any of its
50 functions, powers and duties to a panel of three of its members, one of
51 whom shall be a member of the bar, except that no panel shall confer
52 immunity in accordance with section 50.20 of the criminal procedure law.
53 No panel shall be authorized to take any action pursuant to subdivisions
54 four through nine of section four hundred ninety-nine-f of this article
55 or subdivision two of this section.
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1 2. The commission may designate a member of the bar who is not a
2 prosecutor or a member of the commission or its staff as a referee to
3 hear and report to the commission in accordance with the provisions of
4 section four hundred ninety-nine-f of this article. Such referee shall
5 be empowered to conduct hearings, administer oaths or affirmations,
6 subpoena witnesses, compel their attendance, examine them under oath or
7 affirmation and require the production of any books, records, documents
8 or other evidence that the referee may deem relevant or material to the
9 subject of the hearing.
10 § 499-f. Complaint; investigation; hearing and disposition. 1. The
11 commission shall receive, initiate, investigate and hear complaints with
12 respect to the conduct, qualifications, fitness to perform, or perform-
13 ance of official duties of any prosecutor, and may determine that a
14 prosecutor be admonished, censured or removed from office for cause,
15 including, but not limited to, misconduct in office, persistent failure
16 to perform his or her duties, habitual intemperance and conduct, in and
17 outside of his or her office, prejudicial to the administration of
18 justice, or that a prosecutor be retired for mental or physical disabil-
19 ity preventing the proper performance of his or her prosecutorial
20 duties. A complaint shall be in writing and signed by the complainant
21 and, if directed by the commission, shall be verified. Upon receipt of a
22 complaint (a) the commission shall conduct an investigation of the
23 complaint; or (b) the commission may dismiss the complaint if it deter-
24 mines that the complaint on its face lacks merit. If the complaint is
25 dismissed, the commission shall so notify the complainant. If the
26 commission shall have notified the prosecutor of the complaint, the
27 commission shall also notify the prosecutor of such dismissal.
28 2. The commission may, on its own motion, initiate an investigation of
29 a prosecutor with respect to his or her qualifications, conduct, fitness
30 to perform or the performance of his or her official duties. Prior to
31 initiating any such investigation, the commission shall file as part of
32 its record a written complaint, signed by the administrator of the
33 commission, which complaint shall serve as the basis for such investi-
34 gation.
35 3. In the course of an investigation, the commission may require the
36 appearance of the prosecutor involved before it, in which event the
37 prosecutor shall be notified in writing of his or her required appear-
38 ance, either personally, at least three days prior to such appearance,
39 or by certified mail, return receipt requested, at least five days prior
40 to such appearance. In either case a copy of the complaint shall be
41 served upon the prosecutor at the time of such notification. The prose-
42 cutor shall have the right to be represented by counsel during any and
43 all stages of the investigation in which his or her appearance is
44 required and to present evidentiary data and material relevant to the
45 complaint. A transcript shall be made and kept with respect to all
46 proceedings at which testimony or statements under oath of any party or
47 witness shall be taken, and the transcript of the prosecutor's testimony
48 shall be made available to the prosecutor without cost. Such transcript
49 shall be confidential except as otherwise permitted by section four
50 hundred ninety-nine-g of this article.
51 4. If in the course of an investigation, the commission determines
52 that a hearing is warranted it shall direct that a formal written
53 complaint signed and verified by the administrator be drawn and served
54 upon the prosecutor involved, either personally or by certified mail,
55 return receipt requested. The prosecutor shall file a written answer to
56 the complaint with the commission within twenty days of such service.
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1 If, upon receipt of the answer, or upon expiration of the time to
2 answer, the commission shall direct that a hearing be held with respect
3 to the complaint, the prosecutor involved shall be notified in writing
4 of the date of the hearing either personally, at least twenty days prior
5 thereto, or by certified mail, return receipt requested, at least twen-
6 ty-two days prior thereto. Upon the written request of the prosecutor,
7 the commission shall, at least five days prior to the hearing or any
8 adjourned date thereof, make available to the prosecutor without cost
9 copies of all documents which the commission intends to present at such
10 hearing and any written statements made by witnesses who will be called
11 to give testimony by the commission. The commission shall, in any case,
12 make available to the prosecutor at least five days prior to the hearing
13 or any adjourned date thereof any exculpatory evidentiary data and mate-
14 rial relevant to the complaint. The failure of the commission to timely
15 furnish any documents, statements and/or exculpatory evidentiary data
16 and material provided for herein shall not affect the validity of any
17 proceedings before the commission provided that such failure is not
18 substantially prejudicial to the prosecutor. The complainant may be
19 notified of the hearing and unless he or she shall be subpoenaed as a
20 witness by the prosecutor, his or her presence thereat shall be within
21 the discretion of the commission. The hearing shall not be public unless
22 the prosecutor involved shall so demand in writing. At the hearing the
23 commission may take the testimony of witnesses and receive evidentiary
24 data and material relevant to the complaint. The prosecutor shall have
25 the right to be represented by counsel during any and all stages of the
26 hearing and shall have the right to call and cross-examine witnesses and
27 present evidentiary data and material relevant to the complaint. A tran-
28 script of the proceedings and of the testimony of witnesses at the hear-
29 ing shall be taken and kept with the records of the commission.
30 5. Subject to the approval of the commission, the administrator and
31 the prosecutor may agree on a statement of facts and may stipulate in
32 writing that the hearing shall be waived. In such a case, the commission
33 shall make its determination upon the pleadings and the agreed statement
34 of facts.
35 6. If, after a formal written complaint has been served pursuant to
36 subdivision four of this section, or during the course of or after a
37 hearing, the commission determines that no further action is necessary,
38 the complaint shall be dismissed and the complainant and the prosecutor
39 shall be so notified in writing.
40 7. After a hearing, the commission may determine that a prosecutor be
41 admonished, censured, removed or retired. The commission shall transmit
42 its written determination, together with its findings of fact and
43 conclusions of law and the record of the proceedings upon which its
44 determination is based, to the chief judge of the court of appeals who
45 shall cause a copy thereof to be served either personally or by certi-
46 fied mail, return receipt requested, on the prosecutor involved. Upon
47 completion of service, the determination of the commission, its findings
48 and conclusions and the record of its proceedings shall be made public
49 and shall be made available for public inspection at the principal
50 office of the commission and at the office of the clerk of the court of
51 appeals. The prosecutor involved may either accept the determination of
52 the commission or make written request to the chief judge, within thirty
53 days after receipt of such determination, for a review thereof by the
54 court of appeals. If the commission has determined that a prosecutor be
55 admonished or censured, and if the prosecutor accepts such determination
56 or fails to request a review thereof by the court of appeals, the
A. 8179 6
1 commission shall thereupon admonish or censure him or her in accordance
2 with its findings. If the commission has determined that a prosecutor be
3 removed or retired, and if the prosecutor accepts such determination or
4 fails to request a review thereof by the court of appeals, the court of
5 appeals shall thereupon order his or her removal or retirement in
6 accordance with the findings of the commission.
7 8. If the prosecutor requests a review of the determination of the
8 commission, in its review of a determination of the commission, the
9 court of appeals shall review the commission's findings of fact and
10 conclusions of law on the record of the proceedings upon which the
11 commission's determination was based. After such review, the court may
12 accept or reject the determined sanction; impose a different sanction
13 including admonition, censure, removal or retirement for the reasons set
14 forth in subdivision one of this section; or impose no sanction.
15 9. (a) The court of appeals may suspend a prosecutor or justice from
16 exercising the powers of his or her office while there is pending a
17 determination by the commission for his or her removal or retirement, or
18 while he or she is charged in this state with a felony by an indictment
19 or an information filed pursuant to section six of article one of the
20 constitution. The suspension shall continue upon conviction and, if the
21 conviction becomes final, he or she shall be removed from office. The
22 suspension shall be terminated upon reversal of the conviction and
23 dismissal of the accusatory instrument.
24 (b) Upon the recommendation of the commission or on its own motion,
25 the court may suspend a prosecutor or justice from office when he or she
26 is charged with a crime punishable as a felony under the laws of this
27 state, or any other crime which involves moral turpitude. The suspension
28 shall continue upon conviction and, if the conviction becomes final, he
29 or she shall be removed from office. The suspension shall be terminated
30 upon reversal of the conviction and dismissal of the accusatory instru-
31 ment.
32 (c) A prosecutor or justice who is suspended from office by the court
33 shall receive his or her salary during such period of suspension, unless
34 the court directs otherwise. If the court has so directed and such
35 suspension is thereafter terminated, the court may direct that he or she
36 shall be paid his or her salary for such period of suspension.
37 (d) Nothing in this subdivision shall prevent the commission from
38 determining that a prosecutor or justice be admonished, censured,
39 removed, or retired pursuant to subdivision seven of this section.
40 10. If during the course of or after an investigation or hearing, the
41 commission determines that the complaint or any allegation thereof
42 warrants action, other than in accordance with the provisions of subdi-
43 visions seven through nine of this section, within the powers of: (a) a
44 person having administrative jurisdiction over the prosecutor involved
45 in the complaint; or (b) an appellate division of the supreme court; or
46 (c) a presiding justice of an appellate division of the supreme court;
47 or (d) the chief judge of the court of appeals; or (e) the governor; or
48 (f) an applicable district attorney's office or other prosecuting agen-
49 cy, the commission shall refer such complaint or the appropriate allega-
50 tions thereof and any evidence or material related thereto to such
51 person, agency or court for such action as may be deemed proper or
52 necessary.
53 11. The commission shall notify the complainant of its disposition of
54 the complaint.
55 § 499-g. Confidentiality of records. Except as hereinafter provided,
56 all complaints, correspondence, commission proceedings and transcripts
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1 thereof, other papers and data and records of the commission shall be
2 confidential and shall not be made available to any person except pursu-
3 ant to section four hundred ninety-nine-f of this article. The commis-
4 sion and its designated staff personnel shall have access to confiden-
5 tial material in the performance of their powers and duties. If the
6 prosecutor who is the subject of a complaint so requests in writing,
7 copies of the complaint, the transcripts of hearings by the commission
8 thereon, if any, and the dispositive action of the commission with
9 respect to the complaint, such copies with any reference to the identity
10 of any person who did not participate at any such hearing suitably
11 deleted therefrom, except the subject prosecutor or complainant, shall
12 be made available for inspection and copying to the public, or to any
13 person, agency or body designated by such prosecutor.
14 § 499-h. Breach of confidentiality of commission information. 1. Any
15 staff member, employee or agent of the state commission on prosecutorial
16 conduct who violates any of the provisions of section four hundred nine-
17 ty-nine-g of this article shall be subject to a reprimand, a fine,
18 suspension or removal by the commission.
19 2. Within ten days after the commission has acquired knowledge that a
20 staff member, employee or agent of the commission has or may have
21 breached the provisions of section four hundred ninety-nine-g of this
22 article, written charges against such staff member, employee or agent
23 shall be prepared and signed by the chairman of the commission and filed
24 with the commission. Within five days after receipt of charges, the
25 commission shall determine, by a vote of the majority of all the members
26 of the commission, whether probable cause for such charges exists. If
27 such determination is affirmative, within five days thereafter a written
28 statement specifying the charges in detail and outlining his or her
29 rights under this section shall be forwarded to the accused staff
30 member, employee or agent by certified mail. The commission may suspend
31 the staff member, employee or agent, with or without pay, pending the
32 final determination of the charges. Within ten days after receipt of the
33 statement of charges, the staff member, employee or agent shall notify
34 the commission in writing whether he or she desires a hearing on the
35 charges. The failure of the staff member, employee or agent to notify
36 the commission of his or her desire to have a hearing within such period
37 of time shall be deemed a waiver of the right to a hearing. If the hear-
38 ing has been waived, the commission shall proceed, within ten days after
39 such waiver, by a vote of a majority of all the members of such commis-
40 sion, to determine the charges and fix the penalty or punishment, if
41 any, to be imposed as hereinafter provided.
42 3. Upon receipt of a request for a hearing, the commission shall sche-
43 dule a hearing, to be held at the commission offices, within twenty days
44 after receipt of the request therefor, and shall immediately notify in
45 writing the staff member, employee or agent of the time and place there-
46 of.
47 4. The commission shall have the power to establish necessary rules
48 and procedures for the conduct of hearings under this section. Such
49 rules shall not require compliance with technical rules of evidence. All
50 such hearings shall be held before a hearing panel composed of three
51 members of the commission selected by the commission. Each hearing shall
52 be conducted by the chairman of the panel who shall be selected by the
53 panel. The staff member, employee or agent shall have a reasonable
54 opportunity to defend himself and to testify on his or her own behalf.
55 He or she shall also have the right to be represented by counsel, to
56 subpoena witnesses and to cross-examine witnesses. All testimony taken
A. 8179 8
1 shall be under oath which the chairman of the panel is hereby authorized
2 to administer. A record of the proceedings shall be made and a copy of
3 the transcript of the hearing shall, upon written request, be furnished
4 without charge to the staff member, employee or agent involved.
5 5. Within five days after the conclusion of a hearing, the panel shall
6 forward a report of the hearing, including its findings and recommenda-
7 tions, including its recommendations as to penalty or punishment, if one
8 is warranted, to the commission and to the accused staff member, employ-
9 ee or agent. Within ten days after receipt of such report the commission
10 shall determine whether it shall implement the recommendations of the
11 panel. If the commission shall determine to implement such recommenda-
12 tions, which shall include the penalty or punishment, if any, of a
13 reprimand, a fine, suspension for a fixed time without pay or dismissal,
14 it shall do so within five days after such determination. If the charges
15 against the staff member, employee or agent are dismissed, he or she
16 shall be restored to his or her position with full pay for any period of
17 suspension without pay and the charges shall be expunged from his or her
18 record.
19 6. The accused staff member, employee or agent may seek review of the
20 determination of the commission by way of a special proceeding pursuant
21 to article seventy-eight of the civil practice law and rules.
22 § 499-i. Resignation not to divest commission or court of appeals of
23 jurisdiction. The jurisdiction of the court of appeals and the commis-
24 sion pursuant to this article shall continue notwithstanding that a
25 prosecutor resigns from office after a determination of the commission
26 that the prosecutor be removed from office has been transmitted to the
27 chief judge of the court of appeals, or in any case in which the commis-
28 sion's determination that a prosecutor should be removed from office
29 shall be transmitted to the chief judge of the court of appeals within
30 one hundred twenty days after receipt by the chief administrator of the
31 courts of the resignation of such prosecutor. Any determination by the
32 court of appeals that a prosecutor who has resigned should be removed
33 from office shall render such prosecutor ineligible to hold any other
34 prosecutorial office.
35 § 2. If any part or provision of this act is adjudged by a court of
36 competent jurisdiction to be unconstitutional or otherwise invalid, such
37 judgment shall not affect or impair any other part or provision of this
38 act, but shall be confined in its operation to such part or provision.
39 § 3. This act shall take effect January 1, 2014.
