Bill Text: NY A10805 | 2019-2020 | General Assembly | Amended


Bill Title: Relates to the state commission on prosecutorial conduct; provides that the commission shall investigate complaints and may make a recommendation to the governor that a prosecutor be removed; provides that the commission shall transmit its findings of fact and recommendations to the appellate division; provides that the appellate division may accept or reject such recommendations or impose a different sanction.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-07-22 - ordered to third reading rules cal.297 [A10805 Detail]

Download: New_York-2019-A10805-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                        10805--A

                   IN ASSEMBLY

                                      July 15, 2020
                                       ___________

        Introduced  by  COMMITTEE  ON RULES -- (at request of M. of A. Perry) --
          read once and referred to the  Committee  on  Codes  --  reported  and
          referred  to  the  Committee  on  Rules  -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee

        AN  ACT  to amend the judiciary law, in relation to the state 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.  Section 499-a of the judiciary law, as amended by chapter
     2  23 of the laws of 2019, is amended to read as follows:
     3    § 499-a. Establishment of commission. There is hereby  created  within
     4  the  executive  department  a state commission of prosecutorial conduct.
     5  The commission shall have the authority to review  and  investigate  the
     6  conduct  of  prosecutors upon the filing of a complaint with the commis-
     7  sion to [determine] examine whether [said] a prosecutor  or  prosecutors
     8  has  committed  conduct  [as alleged departs from the applicable] in the
     9  course of his or her official duties or under color of state law  poten-
    10  tially  violative  of  statutes,  the  legal  rights of private persons,
    11  whether statutory, constitutional or otherwise; case  law[,];  or  court
    12  rules,  including, but not limited to the New York Rules of Professional
    13  Conduct, 22 NYCRR 1200, or any  subset  thereof  or  successor  thereto,
    14  including  but  not  limited  to  Rule  3.8 (Special Responsibilities of
    15  Prosecutors and Other Government Lawyers).
    16    § 2. Section 499-b of the judiciary law, as amended by chapter  23  of
    17  the laws of 2019, is amended to read as follows:
    18    §  499-b.  Definitions. For the purposes of this article the following
    19  terms have the following meanings:
    20    1. "Commission" means the state commission on prosecutorial conduct.
    21    2. "Prosecutor" means a district attorney or  any  assistant  district
    22  attorney  of  any county of the state in an action to exact any criminal
    23  penalty, fine, sanction or forfeiture.
    24    3. "Hearing" means a proceeding under subdivision four of section four
    25  hundred ninety-nine-f of this article.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16898-06-0

        A. 10805--A                         2

     1    4. "Member of the bar" means a person admitted to the practice of  law
     2  in this state for at least five years.
     3    5. ["Presiding justices of the appellate division" shall mean, collec-
     4  tively,  the presiding justices of the appellate division of the supreme
     5  court of each judicial department. The chief administrative judge shall,
     6  by rule, establish an appropriate mechanism, not inconsistent with  law,
     7  for  persons and entities interacting with the presiding justices of the
     8  appellate division pursuant to this article to file papers and  communi-
     9  cate with such body.
    10    6.]  "Retired  judge"  shall  mean  a  former  judge or justice of the
    11  unified court system who  was  qualified  as  an  attorney  during  such
    12  service and served as such a judge or justice for at least five years.
    13    §  3.  Subdivision 6 of section 499-c of the judiciary law, as amended
    14  by chapter 23 of the laws of 2019, is amended to read as follows:
    15    6. For any action taken pursuant to subdivisions four  through  [nine]
    16  seven  of  section  four  hundred  ninety-nine-f  or  subdivision two of
    17  section four hundred ninety-nine-e of this article, eight members of the
    18  commission shall constitute a quorum of the commission and  the  concur-
    19  rence  of  six members of the commission shall be necessary. Two members
    20  of a three member panel of the commission shall constitute a  quorum  of
    21  the  panel  and  the  concurrence  of  two members of the panel shall be
    22  necessary for any action taken.
    23    § 4. Section 499-f of the judiciary law, as amended by chapter  23  of
    24  the laws of 2019, is amended to read as follows:
    25    §  499-f.  Complaint;  investigation;  hearing and disposition. 1. The
    26  commission shall receive, initiate, investigate and hear complaints with
    27  respect  to  the  conduct[,  qualifications,  fitness  to  perform,]  or
    28  performance  of  official  duties  of any prosecutor[, and may determine
    29  that a prosecutor be admonished, or censured]; and may make a  recommen-
    30  dation  to  the  governor  that  a prosecutor be removed from office for
    31  cause, for, including, but not limited  to,  misconduct  in  office,  as
    32  evidenced  by  his  or  her  departure from his or her obligations under
    33  appropriate statute, case law, and/or New  York  Rules  of  Professional
    34  Conduct,  22  NYCRR  1200,  or  any subset thereof or successor thereto,
    35  including but not limited  to  Rule  3.8  (Special  Responsibilities  of
    36  Prosecutors and Other Government Lawyers), persistent failure to perform
    37  his or her duties, conduct prejudicial to the administration of justice,
    38  or  that  a  prosecutor  be  retired  for  mental or physical disability
    39  preventing the proper performance of his or her prosecutorial duties.  A
    40  complaint  shall  be  in  writing  and signed by the complainant and, if
    41  directed by the  commission,  shall  be  verified.  Upon  receipt  of  a
    42  complaint  (a)  the  commission  shall  conduct  an investigation of the
    43  complaint; or (b) the commission may dismiss the complaint if it  deter-
    44  mines  that  the  complaint on its face lacks merit. If the complaint is
    45  dismissed, the commission  shall  so  notify  the  complainant.  If  the
    46  commission  shall  have  notified  the  prosecutor of the complaint, the
    47  commission shall also notify the prosecutor of such dismissal.  Pursuant
    48  to  paragraph  a  of subdivision four of section ninety of this chapter,
    49  any person being an attorney and counselor-at-law who shall be convicted
    50  of a felony as defined in paragraph e of  subdivision  four  of  section
    51  ninety  of  this  chapter,  shall  upon such conviction, cease to be any
    52  attorney and counselor-at-law, or to be competent  to  practice  law  as
    53  such.
    54    2. The commission may, on its own motion, initiate an investigation of
    55  a  prosecutor  with  respect  to  his or her [qualifications,] conduct[,
    56  fitness to perform] or the performance of his or  her  official  duties.

        A. 10805--A                         3

     1  Prior to initiating any such investigation, the commission shall file as
     2  part  of  its record a written complaint, signed by the administrator of
     3  the commission, which complaint shall serve as the basis for such inves-
     4  tigation.
     5    3.  In  the course of an investigation, the commission may require the
     6  appearance of the prosecutor involved before  it,  in  which  event  the
     7  prosecutor  shall  be notified in writing of his or her required appear-
     8  ance, either personally, at least three days prior to  such  appearance,
     9  or by certified mail, return receipt requested, at least five days prior
    10  to  such  appearance.  In  either  case a copy of the complaint shall be
    11  served upon the prosecutor at the time of such notification. The  prose-
    12  cutor  shall  have the right to be represented by counsel during any and
    13  all stages of the investigation  in  which  his  or  her  appearance  is
    14  required  and  to  present evidentiary data and material relevant to the
    15  complaint. A transcript shall be made  and  kept  with  respect  to  all
    16  proceedings  at which testimony or statements under oath of any party or
    17  witness shall be taken, and the transcript of the prosecutor's testimony
    18  shall be made available to the prosecutor without cost. Such  transcript
    19  shall  be  confidential  except  as  otherwise permitted by section four
    20  hundred ninety-nine-g of this article.
    21    4. If in the course of an  investigation,  the  commission  determines
    22  that  a  hearing  is  warranted  it  shall  direct that a formal written
    23  complaint signed and verified by the administrator be drawn  and  served
    24  upon  the  prosecutor  involved, either personally or by certified mail,
    25  return receipt requested. The prosecutor shall file a written answer  to
    26  the  complaint  with  the commission within twenty days of such service.
    27  If, upon receipt of the answer,  or  upon  expiration  of  the  time  to
    28  answer,  the commission shall direct that a hearing be held with respect
    29  to the complaint, the prosecutor involved shall be notified  in  writing
    30  of the date of the hearing either personally, at least twenty days prior
    31  thereto,  or by certified mail, return receipt requested, at least twen-
    32  ty-two days prior thereto. Upon the written request of  the  prosecutor,
    33  the  commission  shall,  at  least five days prior to the hearing or any
    34  adjourned date thereof, make available to the  prosecutor  without  cost
    35  copies  of all documents which the commission intends to present at such
    36  hearing and any written statements made by witnesses who will be  called
    37  to  give testimony by the commission. The commission shall, in any case,
    38  make available to the prosecutor at least five days prior to the hearing
    39  or any adjourned date thereof any exculpatory evidentiary data and mate-
    40  rial relevant to the complaint. The failure of the commission to  timely
    41  furnish  any  documents,  statements and/or exculpatory evidentiary data
    42  and material provided for herein shall not affect the  validity  of  any
    43  proceedings  before  the  commission  provided  that such failure is not
    44  substantially prejudicial to the prosecutor.   The  complainant  may  be
    45  notified  of  the  hearing and unless he or she shall be subpoenaed as a
    46  witness by the prosecutor, his or her presence thereat shall  be  within
    47  the discretion of the commission. The hearing shall not be public unless
    48  the  prosecutor  involved shall so demand in writing. At the hearing the
    49  commission may take the testimony of witnesses and  receive  evidentiary
    50  data  and  material relevant to the complaint. The prosecutor shall have
    51  the right to be represented by counsel during any and all stages of  the
    52  hearing and shall have the right to call and cross-examine witnesses and
    53  present evidentiary data and material relevant to the complaint. A tran-
    54  script of the proceedings and of the testimony of witnesses at the hear-
    55  ing shall be taken and kept with the records of the commission.

        A. 10805--A                         4

     1    5.  Subject  to  the approval of the commission, the administrator and
     2  the prosecutor may agree on a statement of facts and  may  stipulate  in
     3  writing that the hearing shall be waived. In such a case, the commission
     4  shall  [make  its  determination  upon  the pleadings and] rely upon the
     5  agreed statement of facts in forming the commission's findings of fact.
     6    6.  If,  after  a formal written complaint has been served pursuant to
     7  subdivision four of this section, or during the course  of  or  after  a
     8  hearing,  the commission determines that no further action is necessary,
     9  the complaint shall be dismissed and the complainant and the  prosecutor
    10  shall be so notified in writing.
    11    7. [After a hearing, the commission may determine that a prosecutor be
    12  admonished or censured, or may recommend to the governor that a prosecu-
    13  tor be removed from office for cause.] The commission shall transmit its
    14  [written determination, together with its] findings of fact and [conclu-
    15  sions  of  law]  recommendations  and the record of the proceedings upon
    16  which [its determination  is]  such  findings  and  recommendations  are
    17  based,  to  the [presiding justices of the] attorney grievance committee
    18  of the appellate division [who] in the department where  the  prosecutor
    19  was  admitted to practice, which shall cause a copy thereof to be served
    20  either personally or by certified mail, return receipt requested, on the
    21  prosecutor involved. Upon completion of service, the  [determination  of
    22  the commission, its] commission's findings and [conclusions] recommenda-
    23  tions  and  the record of its proceedings shall be made public and shall
    24  be made available for public inspection at the principal office  of  the
    25  commission  and  at the office of the clerk of the appellate division in
    26  the department in which the [alleged  misconduct  occurred]  record  was
    27  filed.    If  the  commission's findings and recommendations include any
    28  recommendation that any prosecutor should be  removed  or  retired,  the
    29  commission  shall simultaneously transmit its findings, recommendations,
    30  and record of its proceedings to the governor. Records of a  prosecuting
    31  agency provided by the agency to the commission pursuant to this article
    32  shall  not  be subject to disclosure by the commission under article six
    33  of the public officers law. [The prosecutor involved may  either  accept
    34  the  determination  of  the  commission  or  make written request to the
    35  presiding justices of the appellate division, within thirty  days  after
    36  receipt  of  such  determination,  for a review thereof by the presiding
    37  justices of the appellate division. If  the  commission  has  determined
    38  that  a  prosecutor  be  admonished  or  censured, and if the prosecutor
    39  accepts such determination or fails to request a review thereof  by  the
    40  presiding justices of the appellate division, the commission shall ther-
    41  eupon admonish or censure him or her in accordance with its findings. If
    42  the  commission  has recommended that a prosecutor be removed or retired
    43  and the prosecutor accepts such determination  or  fails  to  request  a
    44  review  thereof by the presiding justices of the appellate division, the
    45  presiding justices of the appellate division  shall  thereupon  transmit
    46  the  commission's findings to the governor who will independently deter-
    47  mine whether the prosecutor should be removed or retired.]
    48    8. [If the prosecutor requests a review of the  determination  of  the
    49  commission,  in  its  review  of  a determination of the commission, the
    50  presiding justices of the appellate division shall  review  the  commis-
    51  sion's  findings  of  fact  and  conclusions of law on the record of the
    52  proceedings upon which the commission's determination was based.   After
    53  such  review,  the  presiding  justices  of  the] The attorney grievance
    54  committee of the  appellate  division  that  receives  the  commission's
    55  report  may  accept  or  reject  the  [determined] recommended sanction;
    56  impose a different sanction [including admonition or censure,  recommend

        A. 10805--A                         5

     1  removal  or  retirement  for the reasons set forth in subdivision one of
     2  this section];  or  impose  no  sanction.  [However,  if  the  presiding
     3  justices of the appellate division recommend removal or retirement, they
     4  shall,  together  with the commission, transmit the entire record to the
     5  governor who will independently determine whether a prosecutor should be
     6  removed or retired.]
     7    9. [(a) The presiding justices of the appellate division may suspend a
     8  prosecutor from exercising the powers of his or her office  while  there
     9  is  pending  a determination by the commission for his or her removal or
    10  retirement, or while he or she is charged in this state with a felony by
    11  an indictment or an information filed pursuant to section six of article
    12  one of the constitution. The suspension shall terminate upon  conviction
    13  of  a felony resulting in such prosecutor's disbarment pursuant to para-
    14  graph a of subdivision four of section ninety of this chapter.  If  such
    15  conviction  becomes  final, he or she shall be removed from office.  The
    16  suspension shall be terminated  upon  reversal  of  the  conviction  and
    17  dismissal of the accusatory instrument.
    18    (b)  Upon  the  recommendation of the commission or on its own motion,
    19  the presiding justices of the appellate division may suspend a  prosecu-
    20  tor  from  office when he or she is charged with a crime punishable as a
    21  felony under the laws of this state, or any other crime  which  involves
    22  moral  turpitude.  The  suspension  shall terminate upon conviction of a
    23  felony resulting in such prosecutor's disbarment pursuant to paragraph a
    24  of subdivision four of section ninety of this  chapter.  The  suspension
    25  shall  continue  upon conviction of any other crime which involves moral
    26  turpitude and, if such conviction becomes final,  he  or  she  shall  be
    27  removed from office. The suspension shall be terminated upon reversal of
    28  the conviction and dismissal of the accusatory instrument.
    29    (c)  A  prosecutor  who  is  suspended  from  office  by the presiding
    30  justices of the appellate division  shall  receive  his  or  her  salary
    31  during such period of suspension, unless the court directs otherwise. If
    32  the  court has so directed and such suspension is thereafter terminated,
    33  the presiding justices of the appellate division may direct that  he  or
    34  she shall be paid his or her salary for such period of suspension.
    35    (d)  Nothing  in  this  subdivision  shall prevent the commission from
    36  determining that a prosecutor be admonished or censured or  prevent  the
    37  commission  from recommending removal or retirement pursuant to subdivi-
    38  sion seven of this section.
    39    10.] If during the course of or after an investigation or hearing, the
    40  commission determines that  the  complaint  or  any  allegation  thereof
    41  warrants  action, other than in accordance with the provisions of subdi-
    42  visions seven [through nine] and  eight  of  this  section,  within  the
    43  powers  of:    (a)  a person having administrative jurisdiction over the
    44  prosecutor involved in the complaint; or (b) [an] the attorney grievance
    45  committee of the appellate  division  [of  the  supreme  court]  in  the
    46  department  where  the  prosecutor  was  admitted to practice; or (c) [a
    47  presiding justice of an appellate division of the supreme court; or  (d)
    48  the  chief  judge of the court of appeals; or (e)] the governor pursuant
    49  to subdivision (b) of  section  thirteen  of  article  thirteen  of  the
    50  constitution;  or [(f)] (d) an applicable district attorney's office [or
    51  other prosecuting agency], the commission shall refer such complaint  or
    52  the appropriate allegations thereof and any evidence or material related
    53  thereto to such person, agency or court for such action as may be deemed
    54  proper or necessary.
    55    [11.]  10. The commission shall notify the complainant of its disposi-
    56  tion of the complaint.

        A. 10805--A                         6

     1    [12.  In the event of removal from office of any prosecutor,  pursuant
     2  to  subdivision  seven  or  eight or paragraph (a) or (b) of subdivision
     3  nine of this section, a vacancy shall exist pursuant to article three of
     4  the public officers law.]
     5    §  5.  Section 499-i of the judiciary law, as amended by chapter 23 of
     6  the laws of 2019, is amended to read as follows:
     7    § 499-i. Resignation not to divest commission [or  presiding  justices
     8  of]  and the appellate division of jurisdiction. The jurisdiction of the
     9  [presiding justices of the] appellate division and the commission pursu-
    10  ant to this article shall continue  notwithstanding  that  a  prosecutor
    11  resigns  from  office  after a recommendation by the commission that the
    12  prosecutor be removed from office has been transmitted to the [presiding
    13  justices of the appellate division] governor, or in any  case  in  which
    14  the commission's recommendation that a prosecutor should be removed from
    15  office  shall be transmitted to the [presiding justices of the appellate
    16  division] governor within one hundred twenty days after receipt  by  the
    17  chief administrator of the courts of the resignation of such prosecutor.
    18  Any  determination  by  the  governor that a prosecutor who has resigned
    19  should be removed from office shall render such prosecutor ineligible to
    20  hold any other prosecutorial office.
    21    § 6. Section 499-j of the judiciary law, as amended by chapter  23  of
    22  the laws of 2019, is amended to read as follows:
    23    §  499-j.  Effect. [1.] The powers, duties, and functions of the state
    24  commission on prosecutorial conduct shall not supersede the  powers  and
    25  duties  of the governor as outlined in section thirteen of article thir-
    26  teen of the New York state constitution.
    27    [2. Removal or retirement of a prosecutor  pursuant  to  this  article
    28  shall  be considered a removal from office pursuant to section thirty of
    29  the public officers law.]
    30    § 7. Legislative intent. It is hereby declared to be the intent of the
    31  legislature that,  if  any  clause,  sentence,  paragraph,  subdivision,
    32  section  or  part of article 15-A of the judiciary law shall be adjudged
    33  by any court of competent jurisdiction to be invalid, that such  article
    34  would  have  been  enacted  even if such invalid provisions has not been
    35  included therein.
    36    § 8. Severability. If any clause,  sentence,  paragraph,  subdivision,
    37  section  or part of this act shall be adjudged by any court of competent
    38  jurisdiction to be invalid, such judgment shall not affect,  impair,  or
    39  invalidate the remainder thereof, but shall be confined in its operation
    40  to the clause, sentence, paragraph, subdivision, section or part thereof
    41  directly  involved  in the controversy in which such judgment shall have
    42  been rendered. It is hereby declared to be the intent of the legislature
    43  that this act would have been enacted even if  such  invalid  provisions
    44  had not been included herein.
    45    § 9. This act shall take effect immediately.
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