A08634 Summary:

BILL NOA08634A
 
SAME ASSAME AS S06286-A
 
SPONSORPerry
 
COSPNSRCamara, Magnarelli, Titus, Solages, Mosley, Gantt, Clark, Rivera, Brook-Krasny, Gottfried, Wright, Davila, Heastie, Aubry, Rodriguez
 
MLTSPNSRCook, Farrell, Lavine, Montesano
 
Add Art 15-A SS499-a - 499-j, Judy L
 
Establishes the commission on prosecutorial conduct.
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A08634 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8634A
 
SPONSOR: Perry
  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: The judiciary law is amended by adding a new Article 15-A, entitled "State Commission on Prosecutorial Conduct" hereinafter referred to as "the commission" which contains Sections 499-a through 499-i. Section 499-a of Article 15A establishes definitions for the purposes of the article, including the definitions of commission, prosecutor, hear- ing and member of the bar. Section 499-b Article 15A establishes the commission on prosecutorial conduct, which 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. Section 499-c of Article 15A 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. Section 499-d of Article 15A authorizes the commission to designate a three member panel. Section 1: The commission may 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. Section 2: The commission may also designate a member of the bar who is not a prosecutor or 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. Section 499-e of Article 15A: Sections 1 through 8 authorize the commission to receive, initiate investigate and hear complaints with respect to the conduct, qualifica- tions, fitness to perform, or performance 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, miscon- duct in office, persistent failure to perform his or her duties, habitu- al intemperance and conduct in and outside of his or her office, preju- dicial to the administration of justice, or that a prosecutor be retired for mental or physical disability preventing the proper performance of his or her prosecutorial duties. Sections 9 and 10 provide that the court of appeals may suspend a prose- cutor 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 arti- cle one of the constitution, or any other crime which involves moral turpitude. Section 499-f of Article 15A establishes the confidentiality of records wherein all complaints, correspondence, commission proceedings and tran- scripts thereof of the commission shall be confidential and shall not be made available to any person except pursuant to section four hundred ninety-nine-f of this article. Section 499-g of Article 15A establishes for the breach of the confiden- tiality 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. Section 499-h of Article 15A 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 a that prosecutor who has resigned should be removed from office shall render such prosecutor ineligible to hold any other prosecutorial office. Section 499-i of Article 15A clarifies that the powers of the prosecuto- rial conduct commission shall not supersede the powers of the governor to remove a district attorney as outlined in the state constitution. It also clarifies that if a district attorney is removed from office pursu- ant to this section, that removal shall constitute a removal pursuant to the public officers law.   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 inves- tigation and prosecution of charges. They have wide latitude in deter- mining 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 defendants and make certain they are not violated. The liberties at stake in crimi- nal 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: New bill.   FISCAL IMPLICATIONS: $5.5M when fully operational   EFFECTIVE DATE: This act shall take effect on January 1, 2015.
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A08634 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8634--A
 
                   IN ASSEMBLY
 
                                    January 29, 2014
                                       ___________
 
        Introduced  by  M.  of  A.  PERRY,  CAMARA,  MAGNARELLI, TITUS, SOLAGES,
          MOSLEY, GANTT, CLARK, RIVERA, BROOK-KRASNY, GOTTFRIED, WRIGHT, DAVILA,
          HEASTIE, AUBRY, RODRIGUEZ -- Multi-Sponsored by  --  M.  of  A.  COOK,
          LAVINE,  MONTESANO -- read once and referred to the Committee on Judi-
          ciary -- reported and referred to the Committee on Codes --  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
    18  authority to review the conduct of prosecutors  upon  the  filing  of  a
    19  complaint  with  the  commission  to  determine  whether said conduct as
    20  alleged departs from the applicable statutes, case law, New  York  Rules

    21  of Professional Responsibility and Rule 3.8 (Special Responsibilities of
    22  Prosecutors)  of the Model Rules of Professional Conduct of the American
    23  Bar Associations.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11880-13-4

        A. 8634--A                          2
 
     1    § 499-b. Definitions. For the purposes of this article  the  following
     2  terms have the following meanings:
     3    1. "Commission" means the state commission on prosecutorial conduct.
     4    2.  "Prosecutor"  means  a district attorney or any assistant district

     5  attorney of any county of the state, and the  attorney  general  or  any
     6  assistant  attorney  general of the state, or any individual employed by
     7  or subject to the direction and  supervision  of  a  district  attorney,
     8  assistant  district  attorney,  attorney  general  or assistant attorney
     9  general, in an action to exact any criminal penalty, fine,  sanction  or
    10  forfeiture.
    11    3. "Hearing" means a proceeding under subdivision four of section four
    12  hundred ninety-nine-f of this article.
    13    4.  "Member of the bar" means a person admitted to the practice of law
    14  in this state for at least five years.
    15    § 499-c. State commission on prosecutorial conduct; organization.   1.

    16  The  commission  shall  consist  of eleven members, of whom two shall be
    17  appointed by the governor, two by the temporary president of the senate,
    18  one by the minority leader of the senate, two  by  the  speaker  of  the
    19  assembly,  one  by  the minority leader of the assembly and three by the
    20  chief judge of the court of appeals. Of the  members  appointed  by  the
    21  governor  one  shall be a public defender and one shall be a prosecutor.
    22  Of the members appointed by the  chief  judge  one  person  shall  be  a
    23  justice  of the appellate division of the supreme court and two shall be
    24  judges of courts other than the court of appeals or appellate  division.
    25  Of  the  members appointed by the legislative leaders, there shall be an

    26  equal number of prosecutors and attorneys  providing  defense  services;
    27  provided,  however, that a temporary imbalance in the number of prosecu-
    28  tors and defense attorneys pending new appointments  shall  not  prevent
    29  the commission from conducting business.
    30    2.  Membership  on the commission by a prosecutor shall not constitute
    31  the holding of a public office and no prosecutor shall  be  required  to
    32  take  and  file  an oath of office before serving on the commission. The
    33  members of the commission shall elect one of their number  to  serve  as
    34  chairman  during his or her term of office or for a period of two years,
    35  whichever is shorter.
    36    3. The persons first appointed by the governor shall have respectively

    37  three and four year terms as he or  she  shall  designate.  The  persons
    38  first  appointed  by  the chief judge of the court of appeals shall have
    39  respectively two, three and four year terms as he or  she  shall  desig-
    40  nate.  The  persons  first  appointed  by the temporary president of the
    41  senate shall have respectively three and four year terms as  he  or  she
    42  shall  designate.  The  person first appointed by the minority leader of
    43  the senate shall have a two year term. The persons  first  appointed  by
    44  the  speaker of the assembly shall have respectively three and four year
    45  terms as he or she shall designate. The person first  appointed  by  the
    46  minority  leader  of  the  assembly shall have a three   year term. Each

    47  member of the commission shall be appointed thereafter  for  a  term  of
    48  four years. Commission membership of a judge or justice appointed by the
    49  governor  or  the  chief  judge shall terminate if such member ceases to
    50  hold the judicial position which qualified him or her for such  appoint-
    51  ment.  Membership  shall  also  terminate if a member attains a position
    52  which would have rendered him or her ineligible for appointment  at  the
    53  time  of  his  or  her  appointment.  A  vacancy  shall be filled by the
    54  appointing officer for the remainder of the term.
    55    4. If a member of the commission who is a prosecutor is the subject of
    56  a complaint or investigation with respect to his or her  qualifications,


        A. 8634--A                          3
 
     1  conduct,  fitness  to  perform  or  performance  of  his or her official
     2  duties, he or she shall be disqualified from participating  in  any  and
     3  all  proceedings with respect thereto.  If a member of the commission is
     4  employed  in  the  same  organization  as  the subject of a complaint or
     5  investigation with  respect  to  his  or  her  qualifications,  conduct,
     6  fitness  to perform, or performance of his or her official duties, he or
     7  she shall be disqualified from participating in any and all  proceedings
     8  with respect thereto.
     9    5.  Each  member of the commission shall serve without salary or other
    10  compensation, but shall be entitled  to  receive  actual  and  necessary

    11  expenses incurred in the discharge of his or her duties.
    12    6.  For any action taken pursuant to subdivisions four through nine of
    13  section four hundred ninety-nine-f or subdivision two  of  section  four
    14  hundred  ninety-nine-e  of this article, eight members of the commission
    15  shall constitute a quorum of the commission and the concurrence  of  six
    16  members  of  the  commission  shall be necessary. Two members of a three
    17  member panel of the commission shall constitute a quorum  of  the  panel
    18  and  the  concurrence of two members of the panel shall be necessary for
    19  any action taken.
    20    7. The commission shall appoint and at pleasure may remove an adminis-
    21  trator who shall be a member of the bar  who  is  not  a  prosecutor  or

    22  retired prosecutor. The administrator of the commission may appoint such
    23  deputies,  assistants,  counsel,  investigators  and  other officers and
    24  employees as he or she may deem necessary, prescribe  their  powers  and
    25  duties,  fix  their  compensation and provide for reimbursement of their
    26  expenses within the amounts appropriated therefor.
    27    § 499-d. Functions; powers and duties. The commission shall  have  the
    28  following functions, powers and duties:
    29    1.  To conduct hearings and investigations, administer oaths or affir-
    30  mations, subpoena witnesses, compel their attendance, examine them under
    31  oath or affirmation and require the production of  any  books,  records,
    32  documents  or other evidence that it may deem relevant or material to an

    33  investigation; and the commission may designate any of  its  members  or
    34  any  member of its staff to exercise any such powers, provided, however,
    35  that except as is otherwise provided in  section  four  hundred  ninety-
    36  nine-e  of this article, only a member of the commission or the adminis-
    37  trator shall exercise the power to subpoena  witnesses  or  require  the
    38  production of books, records, documents or other evidence.
    39    2. To confer immunity when the commission deems it necessary and prop-
    40  er  in  accordance  with  section  50.20  of the criminal procedure law;
    41  provided, however, that at least forty-eight hours prior written  notice
    42  of  the  commission's  intention  to  confer  such immunity is given the

    43  attorney general and the appropriate district attorney.
    44    3. To request and receive from any court, department, division, board,
    45  bureau, commission, or other agency of the state or  political  subdivi-
    46  sion  thereof  or  any public authority such assistance, information and
    47  data as will enable it properly to carry out its functions,  powers  and
    48  duties.
    49    4.  To  report  annually,  on or before the first day of March in each
    50  year and at such other times as the commission shall deem necessary,  to
    51  the  governor,  the  legislature  and  the  chief  judge of the court of
    52  appeals, with respect to proceedings which have been finally  determined
    53  by  the commission. Such reports may include legislative and administra-

    54  tive recommendations. The contents of the annual report  and  any  other
    55  report  shall  conform  to  the  provisions  of this article relating to
    56  confidentiality.

        A. 8634--A                          4
 
     1    5. To adopt, promulgate, amend and rescind rules and  procedures,  not
     2  otherwise  inconsistent  with law, necessary to carry out the provisions
     3  and purposes of this article.  All such rules and  procedures  shall  be
     4  filed  in  the  offices of the chief administrator of the courts and the
     5  secretary of state.
     6    6.  To  do  all other things necessary and convenient to carry out its
     7  functions, powers and duties expressly set forth in this article.

     8    § 499-e. Panels; referees. 1. The commission may delegate any  of  its
     9  functions,  powers and duties to a panel of three of its members, one of
    10  whom shall be a member of the bar, except that  no  panel  shall  confer
    11  immunity in accordance with section 50.20 of the criminal procedure law.
    12  No panel shall be authorized to take any action pursuant to subdivisions
    13  four  through nine of section four hundred ninety-nine-f of this article
    14  or subdivision two of this section.
    15    2. The commission may designate a member of  the  bar  who  is  not  a
    16  prosecutor  or  a  member of the commission or its staff as a referee to
    17  hear and report to the commission in accordance with the  provisions  of

    18  section  four  hundred ninety-nine-f of this article. Such referee shall
    19  be empowered to conduct  hearings,  administer  oaths  or  affirmations,
    20  subpoena  witnesses, compel their attendance, examine them under oath or
    21  affirmation and require the production of any books, records,  documents
    22  or  other evidence that the referee may deem relevant or material to the
    23  subject of the hearing.
    24    § 499-f. Complaint; investigation; hearing and disposition.  1.    The
    25  commission shall receive, initiate, investigate and hear complaints with
    26  respect  to the conduct, qualifications, fitness to perform, or perform-
    27  ance of official duties of any prosecutor,  and  may  determine  that  a

    28  prosecutor  be admonished, or censured; and make a recommendation to the
    29  governor that a prosecutor  be  removed  from  office  for  cause,  for,
    30  including, but not limited to, misconduct in office, as evidenced by his
    31  or  her departure from his or her obligations under appropriate statute,
    32  caselaw, and/or rule 3.8 special responsibilities of  prosecutors  which
    33  is  part  of the model rules of professional conduct of the American bar
    34  association, persistent failure to perform his or her  duties,  habitual
    35  intemperance  and conduct, in and outside of his or her office, prejudi-
    36  cial to the administration of justice, or that a prosecutor  be  retired
    37  for  mental  or physical disability preventing the proper performance of

    38  his or her prosecutorial duties. A complaint shall  be  in  writing  and
    39  signed  by  the complainant and, if directed by the commission, shall be
    40  verified. Upon receipt of a complaint (a) the commission  shall  conduct
    41  an investigation of the complaint; or (b) the commission may dismiss the
    42  complaint  if  it determines that the complaint on its face lacks merit.
    43  If the complaint is  dismissed,  the  commission  shall  so  notify  the
    44  complainant. If the commission shall have notified the prosecutor of the
    45  complaint,  the  commission  shall  also  notify  the prosecutor of such
    46  dismissal.
    47    2. The commission may, on its own motion, initiate an investigation of
    48  a prosecutor with respect to his or her qualifications, conduct, fitness

    49  to perform or the performance of his or her official  duties.  Prior  to
    50  initiating  any such investigation, the commission shall file as part of
    51  its record a written complaint,  signed  by  the  administrator  of  the
    52  commission,  which  complaint shall serve as the basis for such investi-
    53  gation.
    54    3. In the course of an investigation, the commission may  require  the
    55  appearance  of  the  prosecutor  involved  before it, in which event the
    56  prosecutor shall be notified in writing of his or her  required  appear-

        A. 8634--A                          5
 
     1  ance,  either  personally, at least three days prior to such appearance,
     2  or by certified mail, return receipt requested, at least five days prior

     3  to such appearance. In either case a copy  of  the  complaint  shall  be
     4  served  upon the prosecutor at the time of such notification. The prose-
     5  cutor shall have the right to be represented by counsel during  any  and
     6  all  stages  of  the  investigation  in  which  his or her appearance is
     7  required and to present evidentiary data and material  relevant  to  the
     8  complaint.  A  transcript  shall  be  made  and kept with respect to all
     9  proceedings at which testimony or statements under oath of any party  or
    10  witness shall be taken, and the transcript of the prosecutor's testimony
    11  shall  be made available to the prosecutor without cost. Such transcript
    12  shall be confidential except as  otherwise  permitted  by  section  four

    13  hundred ninety-nine-g of this article.
    14    4.  If  in  the  course of an investigation, the commission determines
    15  that a hearing is warranted  it  shall  direct  that  a  formal  written
    16  complaint  signed  and verified by the administrator be drawn and served
    17  upon the prosecutor involved, either personally or  by  certified  mail,
    18  return  receipt requested. The prosecutor shall file a written answer to
    19  the complaint with the commission within twenty days  of  such  service.
    20  If,  upon  receipt  of  the  answer,  or  upon expiration of the time to
    21  answer, the commission shall direct that a hearing be held with  respect
    22  to  the  complaint, the prosecutor involved shall be notified in writing

    23  of the date of the hearing either personally, at least twenty days prior
    24  thereto, or by certified mail, return receipt requested, at least  twen-
    25  ty-two  days  prior thereto. Upon the written request of the prosecutor,
    26  the commission shall, at least five days prior to  the  hearing  or  any
    27  adjourned  date  thereof,  make available to the prosecutor without cost
    28  copies of all documents which the commission intends to present at  such
    29  hearing  and any written statements made by witnesses who will be called
    30  to give testimony by the commission. The commission shall, in any  case,
    31  make available to the prosecutor at least five days prior to the hearing
    32  or any adjourned date thereof any exculpatory evidentiary data and mate-

    33  rial  relevant to the complaint. The failure of the commission to timely
    34  furnish any documents, statements and/or  exculpatory  evidentiary  data
    35  and  material  provided  for herein shall not affect the validity of any
    36  proceedings before the commission provided  that  such  failure  is  not
    37  substantially  prejudicial  to  the  prosecutor.  The complainant may be
    38  notified of the hearing and unless he or she shall be  subpoenaed  as  a
    39  witness  by  the prosecutor, his or her presence thereat shall be within
    40  the discretion of the commission. The hearing shall not be public unless
    41  the prosecutor involved shall so demand in writing. At the  hearing  the
    42  commission  may  take the testimony of witnesses and receive evidentiary

    43  data and material relevant to the complaint. The prosecutor  shall  have
    44  the  right to be represented by counsel during any and all stages of the
    45  hearing and shall have the right to call and cross-examine witnesses and
    46  present evidentiary data and material relevant to the complaint. A tran-
    47  script of the proceedings and of the testimony of witnesses at the hear-
    48  ing shall be taken and kept with the records of the commission.
    49    5. Subject to the approval of the commission,  the  administrator  and
    50  the  prosecutor  may  agree on a statement of facts and may stipulate in
    51  writing that the hearing shall be waived. In such a case, the commission
    52  shall make its determination upon the pleadings and the agreed statement
    53  of facts.

    54    6. If, after a formal written complaint has been  served  pursuant  to
    55  subdivision  four  of  this  section, or during the course of or after a
    56  hearing, the commission determines that no further action is  necessary,

        A. 8634--A                          6
 
     1  the  complaint shall be dismissed and the complainant and the prosecutor
     2  shall be so notified in writing.
     3    7.  After a hearing, the commission may determine that a prosecutor be
     4  admonished or censured, or may recommend to the governor that a prosecu-
     5  tor be removed from office for cause. The commission shall transmit  its
     6  written  determination,  together  with its findings of fact and conclu-
     7  sions of law and the record of the proceedings upon which  its  determi-

     8  nation  is  based,  to the chief judge of the court of appeals who shall
     9  cause a copy thereof to be served  either  personally  or  by  certified
    10  mail,  return  receipt  requested,  on  the  prosecutor  involved.  Upon
    11  completion of service, the determination of the commission, its findings
    12  and conclusions and the record of its proceedings shall be  made  public
    13  and  shall  be  made  available  for  public inspection at the principal
    14  office of the commission and at the office of the clerk of the court  of
    15  appeals.  The prosecutor involved may either accept the determination of
    16  the commission or make written request to the chief judge, within thirty
    17  days after receipt of such determination, for a review  thereof  by  the

    18  court  of appeals. If the commission has determined that a prosecutor be
    19  admonished or censured, and if the prosecutor accepts such determination
    20  or fails to request a review  thereof  by  the  court  of  appeals,  the
    21  commission  shall thereupon admonish or censure him or her in accordance
    22  with its findings. If the commission has and the court of appeals recom-
    23  mends that a prosecutor be removed it shall transmit the commission  and
    24  court  of appeals findings to the governor who will independently deter-
    25  mine whether the prosecutor should be removed or retired.
    26    8. If the prosecutor requests a review of  the  determination  of  the
    27  commission,  in  its  review  of  a determination of the commission, the

    28  court of appeals shall review the  commission's  findings  of  fact  and
    29  conclusions  of  law  on  the  record  of the proceedings upon which the
    30  commission's determination was based. After such review, the  court  may
    31  accept  or  reject  the determined sanction; impose a different sanction
    32  including admonition or censure, recommend removal or retirement for the
    33  reasons set forth in subdivision one of this section; or impose no sanc-
    34  tion.  However, if the court of appeals determines  removal  or  retire-
    35  ment, it shall, together with the commission, transmit the entire record
    36  to  the  governor  who will independently determine whether a prosecutor
    37  should be removed or retired.

    38    9. (a) The court of appeals may suspend a prosecutor  from  exercising
    39  the  powers  of his or her office while there is pending a determination
    40  by the commission for his or her removal or retirement, or while  he  or
    41  she is charged in this state with a felony by an indictment or an infor-
    42  mation filed pursuant to section six of article one of the constitution.
    43  The  suspension  shall  continue  upon conviction and, if the conviction
    44  becomes final, he or she shall be removed from office by  the  governor.
    45  The  suspension  shall be terminated upon reversal of the conviction and
    46  dismissal of the accusatory instrument.
    47    (b) Upon the recommendation of the commission or on  its  own  motion,

    48  the court may suspend a prosecutor from office when he or she is charged
    49  with a crime punishable as a felony under the laws of this state, or any
    50  other crime which involves moral turpitude. The suspension shall contin-
    51  ue upon conviction and, if the conviction becomes final, he or she shall
    52  be removed from office. The suspension shall be terminated upon reversal
    53  of the conviction and dismissal of the accusatory instrument.
    54    (c)  A  prosecutor  who  is  suspended  from office by the court shall
    55  receive his or her salary during such period of suspension,  unless  the
    56  court  directs  otherwise. If the court has so directed and such suspen-

        A. 8634--A                          7
 

     1  sion is thereafter terminated, the court may direct that he or she shall
     2  be paid his or her salary for such period of suspension.
     3    (d)  Nothing  in  this  subdivision  shall prevent the commission from
     4  determining that a prosecutor be admonished or censured or  prevent  the
     5  commission  from recommending removal or retirement pursuant to subdivi-
     6  sion seven of this section.
     7    10. If during the course of or after an investigation or hearing,  the
     8  commission  determines  that  the  complaint  or  any allegation thereof
     9  warrants action, other than in accordance with the provisions of  subdi-
    10  visions  seven through nine of this section, within the powers of: (a) a
    11  person having administrative jurisdiction over the  prosecutor  involved

    12  in  the complaint; or (b) an appellate division of the supreme court; or
    13  (c) a presiding justice of an appellate division of the  supreme  court;
    14  or  (d)  the  chief  judge  of the court of appeals; or (e) the governor
    15  pursuant to subdivision (b) of section thirteen of article  thirteen  of
    16  the  constitution;  or  (f)  an applicable district attorney's office or
    17  other prosecuting agency, the commission shall refer such  complaint  or
    18  the appropriate allegations thereof and any evidence or material related
    19  thereto to such person, agency or court for such action as may be deemed
    20  proper or necessary.
    21    11.  The commission shall notify the complainant of its disposition of
    22  the complaint.

    23    12. In the event of removal from office by the governor of any  prose-
    24  cutor,  a  vacancy  shall  exist pursuant to article three of the public
    25  officers law.
    26    § 499-g. Confidentiality of records. Except as  hereinafter  provided,
    27  all  complaints,  correspondence, commission proceedings and transcripts
    28  thereof, other papers and data and records of the  commission  shall  be
    29  confidential and shall not be made available to any person except pursu-
    30  ant  to  section four hundred ninety-nine-f of this article. The commis-
    31  sion and its designated staff personnel shall have access  to  confiden-
    32  tial  material  in  the  performance of their powers and duties.  If the
    33  prosecutor who is the subject of a complaint  so  requests  in  writing,

    34  copies  of  the complaint, the transcripts of hearings by the commission
    35  thereon, if any, and the  dispositive  action  of  the  commission  with
    36  respect to the complaint, such copies with any reference to the identity
    37  of  any  person  who  did  not  participate at any such hearing suitably
    38  deleted therefrom, except the subject prosecutor or  complainant,  shall
    39  be  made  available  for inspection and copying to the public, or to any
    40  person, agency or body designated by such prosecutor.
    41    § 499-h. Breach of confidentiality of commission information.  1.  Any
    42  staff member, employee or agent of the state commission on prosecutorial
    43  conduct who violates any of the provisions of section four hundred nine-

    44  ty-nine-g  of  this  article  shall  be  subject to a reprimand, a fine,
    45  suspension or removal by the commission.
    46    2. Within ten days after the commission has acquired knowledge that  a
    47  staff  member,  employee  or  agent  of  the  commission has or may have
    48  breached the provisions of section four hundred  ninety-nine-g  of  this
    49  article,  written  charges  against such staff member, employee or agent
    50  shall be prepared and signed by the chairman of the commission and filed
    51  with the commission. Within five days  after  receipt  of  charges,  the
    52  commission shall determine, by a vote of the majority of all the members
    53  of  the  commission,  whether probable cause for such charges exists. If

    54  such determination is affirmative, within five days thereafter a written
    55  statement specifying the charges in detail  and  outlining  his  or  her
    56  rights  under  this  section  shall  be  forwarded  to the accused staff

        A. 8634--A                          8
 
     1  member, employee or agent by certified mail. The commission may  suspend
     2  the  staff  member,  employee or agent, with or without pay, pending the
     3  final determination of the charges. Within ten days after receipt of the
     4  statement  of  charges, the staff member, employee or agent shall notify
     5  the commission in writing whether he or she desires  a  hearing  on  the
     6  charges.  The  failure  of the staff member, employee or agent to notify

     7  the commission of his or her desire to have a hearing within such period
     8  of time shall be deemed a waiver of the right to a hearing. If the hear-
     9  ing has been waived, the commission shall proceed, within ten days after
    10  such waiver, by a vote of a majority of all the members of such  commis-
    11  sion,  to  determine  the  charges and fix the penalty or punishment, if
    12  any, to be imposed as hereinafter provided.
    13    3. Upon receipt of a request for a hearing, the commission shall sche-
    14  dule a hearing, to be held at the commission offices, within twenty days
    15  after receipt of the request therefor, and shall immediately  notify  in
    16  writing the staff member, employee or agent of the time and place there-
    17  of.

    18    4.  The  commission  shall have the power to establish necessary rules
    19  and procedures for the conduct of  hearings  under  this  section.  Such
    20  rules shall not require compliance with technical rules of evidence. All
    21  such  hearings  shall  be  held before a hearing panel composed of three
    22  members of the commission selected by the commission. Each hearing shall
    23  be conducted by the chairman of the panel who shall be selected  by  the
    24  panel.  The  staff  member,  employee  or  agent shall have a reasonable
    25  opportunity to defend himself and to testify on his or her  own  behalf.
    26  He  or  she  shall  also have the right to be represented by counsel, to
    27  subpoena witnesses and to cross-examine witnesses. All  testimony  taken

    28  shall be under oath which the chairman of the panel is hereby authorized
    29  to  administer.  A record of the proceedings shall be made and a copy of
    30  the transcript of the hearing shall, upon written request, be  furnished
    31  without charge to the staff member, employee or agent involved.
    32    5. Within five days after the conclusion of a hearing, the panel shall
    33  forward  a report of the hearing, including its findings and recommenda-
    34  tions, including its recommendations as to penalty or punishment, if one
    35  is warranted, to the commission and to the accused staff member, employ-
    36  ee or agent. Within ten days after receipt of such report the commission
    37  shall determine whether it shall implement the  recommendations  of  the

    38  panel.  If  the commission shall determine to implement such recommenda-
    39  tions, which shall include the penalty  or  punishment,  if  any,  of  a
    40  reprimand, a fine, suspension for a fixed time without pay or dismissal,
    41  it shall do so within five days after such determination. If the charges
    42  against  the  staff  member,  employee or agent are dismissed, he or she
    43  shall be restored to his or her position with full pay for any period of
    44  suspension without pay and the charges shall be expunged from his or her
    45  record.
    46    6. The accused staff member, employee or agent may seek review of  the
    47  recommendation by the commission by way of a special proceeding pursuant
    48  to article seventy-eight of the civil practice law and rules.

    49    §  499-i.  Resignation not to divest commission or court of appeals of
    50  jurisdiction.  The jurisdiction of the court of appeals and the  commis-
    51  sion  pursuant  to  this  article  shall continue notwithstanding that a
    52  prosecutor resigns from office after a recommendation by the  commission
    53  that  the  prosecutor be removed from office has been transmitted to the
    54  chief judge of the court of appeals, or in any case in which the commis-
    55  sion's recommendation that a prosecutor should be  removed  from  office
    56  shall  be  transmitted to the chief judge of the court of appeals within

        A. 8634--A                          9
 
     1  one hundred twenty days after receipt by the chief administrator of  the

     2  courts  of  the resignation of such prosecutor. Any determination by the
     3  governor that a prosecutor who  has  resigned  should  be  removed  from
     4  office  shall render such prosecutor ineligible to hold any other prose-
     5  cutorial office.
     6    § 499-j. Effect. 1. The powers, duties, and  functions  of  the  state
     7  commission  on  prosecutorial conduct shall not supersede the powers and
     8  duties of the governor as outlined in section thirteen of article  thir-
     9  teen of the New York state constitution.
    10    2.  Removal  or  retirement  of  a prosecutor pursuant to this article
    11  shall be considered a removal from office pursuant to section thirty  of
    12  the public officers law.
    13    §  2.  If  any part or provision of this act is adjudged by a court of

    14  competent jurisdiction to be unconstitutional or otherwise invalid, such
    15  judgment shall not affect or impair any other part or provision of  this
    16  act, but shall be confined in its operation to such part or provision.
    17    § 3. This act shall take effect January 1, 2015.
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