NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3011
SPONSOR: Budget TITLE OF BILL: An act to amend the criminal procedure law, in
relation to criminal proceedings and the appointment of an independent
monitor, to amend the executive law, in relation to the reporting
requirements, and to amend the criminal procedure law, in relation to
warrants
PURPOSE:
To restore the public's trust in New York's criminal justice system,
this bill would: strengthen the State's criminal procedure laws as they
relate to grand juries and change of venue motions; require additional
information on search warrant applications; require a statewide "use of
force" policy; and reinforce existing reporting requirements of certain
law enforcement activities under the Executive Law.
STATEMENT IN SUPPORT AND SUMMARY OF PROVISIONS:
A.
INDEPENDENT MONITOR
This bill would create a Governor-appointed "independent monitor"
responsible for reviewing certain grand jury investigations. Specif-
ically, the independent monitor would be empowered to review the
evidence and facts in every case involving a police officer or peace
officer, while acting in his or her official capacity, who may or may
not be charged by a grand jury, with causing the death of an unarmed
civilian. In those cases where the independent monitor concludes that
the district attorney inappropriately declined prosecution or the grand
jury presentation did not conform to the law, the monitor shall refer
the case to the Governor for purposes of appointing a special prosecu-
tor.
B. GRAND JURY REPORT
This bill would amend CPL § 190.85 to require a district attorney to
create a grand jury report where a grand jury dismisses charges or
declines to return an indictment in instances where the subject of the
investigation is a police officer or peace officer charged with causing
the death of an unarmed civilian.
C.
CHANGE OF VENUE
This bill would establish an expedited appeals process directly to the
Court of Appeals in cases where the appellate division declined a motion
for a change of venue.
D.
REPORTING BY LAW ENFORCEMENT AGENCIES
This bill would require all state law enforcement agencies to annually
report to the Division of Criminal Justice Services (DCJS) the number of
arrests made for violations and misdemeanors. The bill would also
require law enforcement agencies to annually report to DCJS the number
of instances where police conduct may have resulted in the death of a
person during the course of executing an arrest for a violation or a
misdemeanor. Finally, it would require all law enforcement agencies to
file an annual report with DCJS containing race information, and other
data, about the subject of each appearance ticket or summons issued by
that agency.
E.
STATEWIDE USE OF FORCE POLICY
The bill would require the Municipal Police and Training Council to
create and promulgate statewide, a model "use of force" policy for State
and local law enforcement agencies. Additionally, statewide law enforce-
ment agencies would be required to adopt their own use of force policy
and may use the MPTC model as a guide.
F.
SEARCH WARRANT APPLICATION
The bill would require that in every application for a search warrant,
the applicant must provide the judge with information about whether the
search warrant had previously been submitted to that judge or any other
judge. Additionally, the applicant must provide the result of the previ-
ous submissions and the name or names of the others judges who acted on
such submissions.
BUDGET IMPLICATIONS:
Enactment of this bill is necessary to implement the 2015-16 Executive
Budget due to the potential cost of an "independent monitor" appointed
by the Governor.
EFFECTIVE DATE:
This bill would take effect thirty days after it is signed into law.
STATE OF NEW YORK
________________________________________________________________________
S. 2011 A. 3011
SENATE - ASSEMBLY
January 21, 2015
___________
IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
cle seven of the Constitution -- read twice and ordered printed, and
when printed to be committed to the Committee on Finance
IN ASSEMBLY -- A BUDGET BILL, submitted by the Governor pursuant to
article seven of the Constitution -- read once and referred to the
Committee on Ways and Means
AN ACT to amend the criminal procedure law, in relation to criminal
proceedings and the appointment of an independent monitor, to amend
the executive law, in relation to the reporting requirements, and to
amend the criminal procedure law, in relation to warrants
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 190.75 of the criminal procedure law is amended by
2 adding a new subdivision 5 to read as follows:
3 5. When the subject of a grand jury proceeding is a police officer as
4 defined in subdivision thirty-four of section 1.20 of this chapter or a
5 peace officer as defined in subdivision thirty-three of section 1.20 of
6 this chapter, acting within his or her official capacity concerning
7 criminal acts that include the use of deadly physical force against an
8 unarmed person, and the district attorney declines to initiate a grand
9 jury proceeding against such a police officer or peace officer, declines
10 to request that a grand jury consider charges, does not present evidence
11 to the grand jury, or the grand jury dismisses the charges or declines
12 to return an indictment, the district attorney shall within sixty days
13 provide all evidentiary materials gathered during the course of the
14 investigation and, where applicable, the district attorney shall provide
15 the grand jury minutes, all evidence presented to the grand jury, all
16 grand jury exhibits, as well as any records and other evidence in the
17 possession, custody and control of the district attorney, to the "inde-
18 pendent monitor" who shall be appointed by the governor for a term of
19 three years and who shall review the grand jury proceedings and all
20 evidentiary materials gathered. The presented materials as described in
21 this section shall remain confidential and shall not be subject to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12576-01-5
S. 2011 2 A. 3011
1 disclosure under article six of the public officers law. If the inde-
2 pendent monitor determines that there were (a) substantial errors of
3 such magnitude that there exists a reasonable probability that an
4 indictment would have resulted but for these errors, and that the
5 presumption of regularity afforded to such proceedings can no longer
6 apply, or (b) there exists newly discovered evidence of such magnitude
7 that there exists a reasonable probability that had such evidence been
8 presented to the grand jury, an indictment would have resulted, then the
9 independent monitor shall refer the matter to the governor for purposes
10 of appointment of a special prosecutor pursuant to section sixty-three
11 of the executive law. For purposes of this article, the release of
12 evidentiary materials and grand jury minutes by the district attorney to
13 the independent monitor shall be considered acting within the district
14 attorney's official duties and therefore not unlawful disclosure under
15 section 215.70 of the penal law.
16 § 2. Section 190.85 of the criminal procedure law is amended by adding
17 a new subdivision 6 to read as follows:
18 6. When a grand jury, pursuant to subdivision one of section 190.75 of
19 this article, dismisses the charges or declines to return an indictment
20 and the subject of a grand jury proceeding is a police officer as
21 defined in subdivision thirty-four of section 1.20 of this chapter or a
22 peace officer as defined in subdivision thirty-three of section 1.20 of
23 this chapter, acting within his or her official capacity concerning
24 criminal acts that include the use of deadly physical force against an
25 unarmed person, the district attorney may, pursuant to and in accordance
26 with the rules and requirements of this section and section 190.90 of
27 this article, regarding the creation of a grand jury report, create a
28 grand jury report. The report shall include, but not be limited to, the
29 following information: (i) charges presented; (ii) evidence presented;
30 (iii) the grand jury minutes; and (iv) the grand jury quorum. With the
31 exception of experts and public employees, the report must not contain
32 the names or any other identifying information such as dates of birth,
33 social security numbers, home addresses, telephone numbers, or any other
34 information that if disclosed may reasonably lead to the public iden-
35 tification of a witness or any other person, other than the name of the
36 victim or the subject of the investigation, who was otherwise identified
37 during the course of the grand jury presentation. The court must approve
38 the contents of the report consistent with this subdivision prior to the
39 release of the report by the district attorney to any civilian or disci-
40 plinary oversight board. For purposes of this article, the release of a
41 grand jury report by the district attorney consistent with this section
42 shall be considered acting within the district attorney's official
43 duties and therefore not unlawful disclosure under section 215.70 of the
44 penal law. In lieu of a grand jury report, the district attorney may
45 issue a letter explaining: (a) his or her decision not to present a case
46 where the subject of a grand jury proceeding is a police officer or
47 peace officer acting within his or her official capacity concerning acts
48 that include the use of deadly physical force against an unarmed person;
49 or (b) the basis for the grand jury's decision to dismiss the indict-
50 ment. For purposes of this article, the release of such a letter by the
51 district attorney in lieu of a grand jury report shall be considered
52 acting within the district attorney's official duties and therefore not
53 unlawful disclosure under section 215.70 of the penal law.
54 § 3. Subdivision 1 of section 190.90 of the criminal procedure law is
55 amended to read as follows:
S. 2011 3 A. 3011
1 1. When a court makes an order accepting a report of a grand jury
2 pursuant to paragraph (a) of subdivision one of section 190.85[,] or
3 subdivision six of section 190.85 any public servant named therein may
4 appeal the order; and when a court makes an order sealing a report of a
5 grand jury pursuant to subdivision five of section 190.85, the district
6 attorney or other attorney designated by the grand jury may appeal the
7 order.
8 § 4. Section 230.20 of the criminal procedure law is amended by adding
9 a new subdivision 5 to read as follows:
10 5. Any party aggrieved by an order of the appellate division concern-
11 ing a motion made pursuant to subdivision two of this section may seek
12 leave to appeal from such order to the court of appeals, pursuant to
13 subdivision three of section 450.90 of this chapter.
14 § 5. Section 450.90 of the criminal procedure law is amended by adding
15 a new subdivision 3 to read as follows:
16 3. Provided that a certificate granting leave to appeal is issued
17 pursuant to section 460.20 of this title, an appeal may be taken to the
18 court of appeals by any party aggrieved by an order of the appellate
19 division concerning a motion made pursuant to subdivision two of section
20 230.20 of this chapter. Upon the request of either party, the hearing
21 and determination of an appeal granted pursuant to this subdivision
22 shall be conducted in an expeditious manner. The chief administrator of
23 the courts, with the advice and consent of the administrative board of
24 the courts, shall adopt rules for the expeditious briefing, hearing and
25 determination of such appeals.
26 § 6. Subdivision 4 of section 840 of the executive law is amended by
27 adding a new paragraph (c) to read as follows:
28 (c) Establish a model law enforcement use of force policy suitable for
29 adoption by any law enforcement agency throughout the state. The use of
30 force policy shall include, but not be limited to, information on
31 current law as it relates to use of force and acts or techniques a
32 police officer or peace officer may not use in the course of acting in
33 his or her official capacity. The chief of every local police depart-
34 ment, each county sheriff, and the superintendent of state police must
35 implement a use of force policy. The use of force policy should be
36 consistent with the model law enforcement policy as required by this
37 section except that a department shall not be limited from imposing
38 further restrictions on the use of force.
39 § 7. The executive law is amended by adding a new section 837-u to
40 read as follows:
41 § 837-u. Reporting duties of law enforcement departments with respect
42 to enforcement of violations and misdemeanors. 1. The chief of every
43 police department, each county sheriff, and the superintendent of state
44 police shall report, annually, to the division with respect to the total
45 number of arrests made for non-criminal violations and misdemeanors.
46 Such reports shall be in the form and manner prescribed by the division
47 and shall contain such information as the division deems necessary.
48 2. The chief of every police department, each county sheriff, and the
49 superintendent of state police shall report, annually, to the division
50 with respect to the number of instances where a police officer as
51 defined in subdivision thirty-four of section 1.20 of the criminal
52 procedure law or a peace officer as defined in subdivision thirty-three
53 of section 1.20 of this chapter, engages in conduct that was a possible
54 factor in the death of another during the enforcement of a violation or
55 misdemeanor. Such reports shall be in the form and manner prescribed by
S. 2011 4 A. 3011
1 the division and shall contain such information as the division deems
2 necessary.
3 3. The chief of every police department, each county sheriff, and the
4 superintendent of state police shall report, annually, to the division
5 with respect to the total number of appearance tickets as defined in
6 subdivision twenty-six of section 1.20 of the criminal procedure law and
7 summonses as defined in subdivision twenty-seven of section 1.20 of the
8 criminal procedure law. Such reports shall be in the form and manner
9 prescribed by the division and shall contain information about the
10 subject of each appearance ticket or summons including but not limited
11 to his or her age, sex, race and ethnicity.
12 § 8. Subdivision 3 of section 690.35 of the criminal procedure law is
13 amended by adding a new paragraph (f) to read as follows:
14 (f) A statement whether the application for the warrant had been
15 previously submitted to another judge, and if so, the statement must
16 include the name of the judge or judges to whom the application was
17 previously submitted, the result of such application or applications,
18 and when such application or applications were made.
19 § 9. Severability clause. If any clause, sentence, paragraph, subdivi-
20 sion, section or part of this act shall be adjudged by any court of
21 competent jurisdiction to be invalid, such judgment shall not affect,
22 impair, or invalidate the remainder thereof, but shall be confined in
23 its operation to the clause, sentence, paragraph, subdivision, section
24 or part thereof directly involved in the controversy in which such judg-
25 ment shall have been rendered. It is hereby declared to be the intent of
26 the legislature that this act would have been enacted even if such
27 invalid provisions had not been included herein.
28 § 10. This act shall take effect on the thirtieth day after it shall
29 have become a law.
