Bill Text: NY S02412 | 2017-2018 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Establishes the commission on prosecutorial conduct.
Spectrum: Slight Partisan Bill (Democrat 9-3)
Status: (Passed) 2018-08-21 - APPROVAL MEMO.2 [S02412 Detail]
Download: New_York-2017-S02412-Amended.html
Bill Title: Establishes the commission on prosecutorial conduct.
Spectrum: Slight Partisan Bill (Democrat 9-3)
Status: (Passed) 2018-08-21 - APPROVAL MEMO.2 [S02412 Detail]
Download: New_York-2017-S02412-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2412--B 2017-2018 Regular Sessions IN SENATE January 13, 2017 ___________ Introduced by Sens. DeFRANCISCO, BAILEY, COMRIE, HAMILTON, PARKER, RIVERA -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- 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 Conduct, 22 NYCRR 1200, including but not limited to 22 Rule 3.8 (Special Responsibilities of Prosecutors and Other Government 23 Lawyers). EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08062-05-7S. 2412--B 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, in an action to exact any crim- 7 inal penalty, fine, sanction or forfeiture. 8 3. "Hearing" means a proceeding under subdivision four of section four 9 hundred ninety-nine-f of this article. 10 4. "Member of the bar" means a person admitted to the practice of law 11 in this state for at least five years. 12 § 499-c. State commission on prosecutorial conduct; organization. 1. 13 The commission shall consist of eleven members, of whom two shall be 14 appointed by the governor, two by the temporary president of the senate, 15 one by the minority leader of the senate, two by the speaker of the 16 assembly, one by the minority leader of the assembly and three by the 17 chief judge of the court of appeals. Of the members appointed by the 18 governor one shall be a public defender and one shall be a prosecutor. 19 Of the members appointed by the chief judge one person shall be a 20 justice of the appellate division of the supreme court and two shall be 21 judges of courts other than the court of appeals or appellate division. 22 Of the members appointed by the legislative leaders, there shall be an 23 equal number of prosecutors and attorneys providing defense services; 24 provided, however, that a temporary imbalance in the number of prosecu- 25 tors and defense attorneys pending new appointments shall not prevent 26 the commission from conducting business. 27 2. Membership on the commission by a prosecutor shall not constitute 28 the holding of a public office and no prosecutor shall be required to 29 take and file an oath of office before serving on the commission. The 30 members of the commission shall elect one of their number to serve as 31 chairman during his or her term of office or for a period of two years, 32 whichever is shorter. 33 3. The persons first appointed by the governor shall have respectively 34 three and four year terms as he or she shall designate. The persons 35 first appointed by the chief judge of the court of appeals shall have 36 respectively two, three and four year terms as he or she shall desig- 37 nate. The persons first appointed by the temporary president of the 38 senate shall have respectively three and four year terms as he or she 39 shall designate. The person first appointed by the minority leader of 40 the senate shall have a two year term. The persons first appointed by 41 the speaker of the assembly shall have respectively three and four year 42 terms as he or she shall designate. The person first appointed by the 43 minority leader of the assembly shall have a three year term. Each 44 member of the commission shall be appointed thereafter for a term of 45 four years. Commission membership of a judge or justice appointed by the 46 governor or the chief judge shall terminate if such member ceases to 47 hold the judicial position which qualified him or her for such appoint- 48 ment. Membership shall also terminate if a member attains a position 49 which would have rendered him or her ineligible for appointment at the 50 time of his or her appointment. A vacancy shall be filled by the 51 appointing officer for the remainder of the term. 52 4. If a member of the commission who is a prosecutor is the subject of 53 a complaint or investigation with respect to his or her qualifications, 54 conduct, fitness to perform or performance of his or her official 55 duties, he or she shall be disqualified from participating in any and 56 all proceedings with respect thereto. If a member of the commission isS. 2412--B 3 1 employed in the same organization as the subject of a complaint or 2 investigation with respect to his or her qualifications, conduct, 3 fitness to perform, or performance of his or her official duties, he or 4 she shall be disqualified from participating in any and all proceedings 5 with respect thereto. 6 5. Each member of the commission shall serve without salary or other 7 compensation, but shall be entitled to receive actual and necessary 8 expenses incurred in the discharge of his or her duties. 9 6. For any action taken pursuant to subdivisions four through nine of 10 section four hundred ninety-nine-f or subdivision two of section four 11 hundred ninety-nine-e of this article, eight members of the commission 12 shall constitute a quorum of the commission and the concurrence of six 13 members of the commission shall be necessary. Two members of a three 14 member panel of the commission shall constitute a quorum of the panel 15 and the concurrence of two members of the panel shall be necessary for 16 any action taken. 17 7. The commission shall appoint and at pleasure may remove an adminis- 18 trator who shall be a member of the bar who is not a prosecutor or 19 retired prosecutor. The administrator of the commission may appoint such 20 deputies, assistants, counsel, investigators and other officers and 21 employees as he or she may deem necessary, prescribe their powers and 22 duties, fix their compensation and provide for reimbursement of their 23 expenses within the amounts appropriated therefor. 24 § 499-d. Functions; powers and duties. The commission shall have the 25 following functions, powers and duties: 26 1. To conduct hearings and investigations, administer oaths or affir- 27 mations, subpoena witnesses, compel their attendance, examine them under 28 oath or affirmation and require the production of any books, records, 29 documents or other evidence that it may deem relevant or material to an 30 investigation; and the commission may designate any of its members or 31 any member of its staff to exercise any such powers, provided, however, 32 that except as is otherwise provided in section four hundred ninety- 33 nine-e of this article, only a member of the commission or the adminis- 34 trator shall exercise the power to subpoena witnesses or require the 35 production of books, records, documents or other evidence. The prose- 36 cuting agency may inform the commission of its position that the commis- 37 sion's investigations will substantially interfere with the agency's own 38 investigation or prosecution. If the prosecuting agency, by affirmation 39 with specificity and particularity, informs the commission of its basis 40 for that position, the commission shall only exercise its powers in a 41 way that will not interfere with an agency's active investigation or 42 prosecution. 43 2. To confer immunity when the commission deems it necessary and prop- 44 er in accordance with section 50.20 of the criminal procedure law; 45 provided, however, that at least forty-eight hours prior written notice 46 of the commission's intention to confer such immunity is given the 47 attorney general and the appropriate district attorney. 48 3. To request and receive from any court, department, division, board, 49 bureau, commission, or other agency of the state or political subdivi- 50 sion thereof or any public authority such assistance, information and 51 data as will enable it properly to carry out its functions, powers and 52 duties. 53 4. To report annually, on or before the first day of March in each 54 year and at such other times as the commission shall deem necessary, to 55 the governor, the legislature and the chief judge of the court of 56 appeals, with respect to proceedings which have been finally determinedS. 2412--B 4 1 by the commission. Such reports may include legislative and administra- 2 tive recommendations. The contents of the annual report and any other 3 report shall conform to the provisions of this article relating to 4 confidentiality. 5 5. To adopt, promulgate, amend and rescind rules and procedures, not 6 otherwise inconsistent with law, necessary to carry out the provisions 7 and purposes of this article. All such rules and procedures shall be 8 filed in the offices of the chief administrator of the courts and the 9 secretary of state. 10 6. To do all other things necessary and convenient to carry out its 11 functions, powers and duties expressly set forth in this article. 12 § 499-e. Panels; referees. 1. The commission may delegate any of its 13 functions, powers and duties to a panel of three of its members, one of 14 whom shall be a member of the bar, except that no panel shall confer 15 immunity in accordance with section 50.20 of the criminal procedure law. 16 No panel shall be authorized to take any action pursuant to subdivisions 17 four through nine of section four hundred ninety-nine-f of this article 18 or subdivision two of this section. 19 2. The commission may designate a member of the bar who is not a 20 prosecutor or a member of the commission or its staff as a referee to 21 hear and report to the commission in accordance with the provisions of 22 section four hundred ninety-nine-f of this article. Such referee shall 23 be empowered to conduct hearings, administer oaths or affirmations, 24 subpoena witnesses, compel their attendance, examine them under oath or 25 affirmation and require the production of any books, records, documents 26 or other evidence that the referee may deem relevant or material to the 27 subject of the hearing. 28 § 499-f. Complaint; investigation; hearing and disposition. 1. The 29 commission shall receive, initiate, investigate and hear complaints with 30 respect to the conduct, qualifications, fitness to perform, or perform- 31 ance of official duties of any prosecutor, and may determine that a 32 prosecutor be admonished, or censured; and make a recommendation to the 33 governor that a prosecutor be removed from office for cause, for, 34 including, but not limited to, misconduct in office, as evidenced by his 35 or her departure from his or her obligations under appropriate statute, 36 case law, and/or New York Rules of Professional Conduct, 22 NYCRR 1200, 37 including but not limited to Rule 3.8 (Special Responsibilities of 38 Prosecutors and Other Government Lawyers), persistent failure to perform 39 his or her duties, habitual intemperance and conduct, in and outside of 40 his or her office, prejudicial to the administration of justice, or that 41 a prosecutor be retired for mental or physical disability preventing the 42 proper performance of his or her prosecutorial duties. A complaint shall 43 be in writing and signed by the complainant and, if directed by the 44 commission, shall be verified. Upon receipt of a complaint (a) the 45 commission shall conduct an investigation of the complaint; or (b) the 46 commission may dismiss the complaint if it determines that the complaint 47 on its face lacks merit. If the complaint is dismissed, the commission 48 shall so notify the complainant. If the commission shall have notified 49 the prosecutor of the complaint, the commission shall also notify the 50 prosecutor of such dismissal. Pursuant to paragraph a of subdivision 51 four of section ninety of this chapter, any person being an attorney and 52 counselor-at-law who shall be convicted of a felony as defined in para- 53 graph e of subdivision four of section ninety of this chapter, shall 54 upon such conviction, cease to be any attorney and counselor-at-law, or 55 to be competent to practice law as such.S. 2412--B 5 1 2. The commission may, on its own motion, initiate an investigation of 2 a prosecutor with respect to his or her qualifications, conduct, fitness 3 to perform or the performance of his or her official duties. Prior to 4 initiating any such investigation, the commission shall file as part of 5 its record a written complaint, signed by the administrator of the 6 commission, which complaint shall serve as the basis for such investi- 7 gation. 8 3. In the course of an investigation, the commission may require the 9 appearance of the prosecutor involved before it, in which event the 10 prosecutor shall be notified in writing of his or her required appear- 11 ance, either personally, at least three days prior to such appearance, 12 or by certified mail, return receipt requested, at least five days prior 13 to such appearance. In either case a copy of the complaint shall be 14 served upon the prosecutor at the time of such notification. The prose- 15 cutor shall have the right to be represented by counsel during any and 16 all stages of the investigation in which his or her appearance is 17 required and to present evidentiary data and material relevant to the 18 complaint. A transcript shall be made and kept with respect to all 19 proceedings at which testimony or statements under oath of any party or 20 witness shall be taken, and the transcript of the prosecutor's testimony 21 shall be made available to the prosecutor without cost. Such transcript 22 shall be confidential except as otherwise permitted by section four 23 hundred ninety-nine-g of this article. 24 4. If in the course of an investigation, the commission determines 25 that a hearing is warranted it shall direct that a formal written 26 complaint signed and verified by the administrator be drawn and served 27 upon the prosecutor involved, either personally or by certified mail, 28 return receipt requested. The prosecutor shall file a written answer to 29 the complaint with the commission within twenty days of such service. 30 If, upon receipt of the answer, or upon expiration of the time to 31 answer, the commission shall direct that a hearing be held with respect 32 to the complaint, the prosecutor involved shall be notified in writing 33 of the date of the hearing either personally, at least twenty days prior 34 thereto, or by certified mail, return receipt requested, at least twen- 35 ty-two days prior thereto. Upon the written request of the prosecutor, 36 the commission shall, at least five days prior to the hearing or any 37 adjourned date thereof, make available to the prosecutor without cost 38 copies of all documents which the commission intends to present at such 39 hearing and any written statements made by witnesses who will be called 40 to give testimony by the commission. The commission shall, in any case, 41 make available to the prosecutor at least five days prior to the hearing 42 or any adjourned date thereof any exculpatory evidentiary data and mate- 43 rial relevant to the complaint. The failure of the commission to timely 44 furnish any documents, statements and/or exculpatory evidentiary data 45 and material provided for herein shall not affect the validity of any 46 proceedings before the commission provided that such failure is not 47 substantially prejudicial to the prosecutor. The complainant may be 48 notified of the hearing and unless he or she shall be subpoenaed as a 49 witness by the prosecutor, his or her presence thereat shall be within 50 the discretion of the commission. The hearing shall not be public unless 51 the prosecutor involved shall so demand in writing. At the hearing the 52 commission may take the testimony of witnesses and receive evidentiary 53 data and material relevant to the complaint. The prosecutor shall have 54 the right to be represented by counsel during any and all stages of the 55 hearing and shall have the right to call and cross-examine witnesses and 56 present evidentiary data and material relevant to the complaint. A tran-S. 2412--B 6 1 script of the proceedings and of the testimony of witnesses at the hear- 2 ing shall be taken and kept with the records of the commission. 3 5. Subject to the approval of the commission, the administrator and 4 the prosecutor may agree on a statement of facts and may stipulate in 5 writing that the hearing shall be waived. In such a case, the commission 6 shall make its determination upon the pleadings and the agreed statement 7 of facts. 8 6. If, after a formal written complaint has been served pursuant to 9 subdivision four of this section, or during the course of or after a 10 hearing, the commission determines that no further action is necessary, 11 the complaint shall be dismissed and the complainant and the prosecutor 12 shall be so notified in writing. 13 7. After a hearing, the commission may determine that a prosecutor be 14 admonished or censured, or may recommend to the governor that a prosecu- 15 tor be removed from office for cause. The commission shall transmit its 16 written determination, together with its findings of fact and conclu- 17 sions of law and the record of the proceedings upon which its determi- 18 nation is based, to the chief judge of the court of appeals who shall 19 cause a copy thereof to be served either personally or by certified 20 mail, return receipt requested, on the prosecutor involved. Upon 21 completion of service, the determination of the commission, its findings 22 and conclusions and the record of its proceedings shall be made public 23 and shall be made available for public inspection at the principal 24 office of the commission and at the office of the clerk of the court of 25 appeals. The prosecutor involved may either accept the determination of 26 the commission or make written request to the chief judge, within thirty 27 days after receipt of such determination, for a review thereof by the 28 court of appeals. If the commission has determined that a prosecutor be 29 admonished or censured, and if the prosecutor accepts such determination 30 or fails to request a review thereof by the court of appeals, the 31 commission shall thereupon admonish or censure him or her in accordance 32 with its findings. If the commission has recommended that a prosecutor 33 be removed or retired and the prosecutor accepts such determination or 34 fails to request a review thereof by the court of appeals, the court of 35 appeals shall thereupon transmit the commission's findings to the gover- 36 nor who will independently determine whether the prosecutor should be 37 removed or retired. Notwithstanding any provision of this subdivision 38 to the contrary, if the commission has and the court of appeals recom- 39 mends that the attorney general be removed, the court of appeals shall 40 transmit the commission's findings and, if any, court of appeals find- 41 ings to the governor who may recommend the removal of the attorney 42 general pursuant to section thirty-two of the public officers law. 43 8. If the prosecutor requests a review of the determination of the 44 commission, in its review of a determination of the commission pursuant 45 to the second undesignated paragraph of subdivision b of section three 46 of article six of the state constitution, the court of appeals shall 47 review the commission's findings of fact and conclusions of law on the 48 record of the proceedings upon which the commission's determination was 49 based. After such review, the court may accept or reject the determined 50 sanction; impose a different sanction including admonition or censure, 51 recommend removal or retirement for the reasons set forth in subdivision 52 one of this section; or impose no sanction. However, if the court of 53 appeals recommends removal or retirement, it shall, together with the 54 commission, transmit the entire record to the governor who will inde- 55 pendently determine whether a prosecutor should be removed or retired. 56 Notwithstanding any provision of this subdivision to the contrary, ifS. 2412--B 7 1 the court of appeals recommends the removal or retirement of the attor- 2 ney general, it shall, together with the commission, transmit the entire 3 record to the governor who may recommend the removal of the attorney 4 general pursuant to section thirty-two of the public officers law. 5 9. (a) The court of appeals may suspend a prosecutor from exercising 6 the powers of his or her office while there is pending a determination 7 by the commission for his or her removal or retirement, or while he or 8 she is charged in this state with a felony by an indictment or an infor- 9 mation filed pursuant to section six of article one of the constitution. 10 The suspension shall terminate upon conviction of a felony resulting in 11 such prosecutor's disbarment pursuant to paragraph a of subdivision four 12 of section ninety of this chapter. If such conviction becomes final, he 13 or she shall be removed from office provided, however, that if such 14 conviction is of the attorney general, he or she shall be removed from 15 office pursuant to paragraph e of subdivision one of section thirty of 16 the public officers law, if applicable, or may be removed from office 17 pursuant to section thirty-two of such law. The suspension shall be 18 terminated upon reversal of the conviction and dismissal of the accusa- 19 tory instrument. 20 (b) Upon the recommendation of the commission or on its own motion, 21 the court may suspend a prosecutor from office when he or she is charged 22 with a crime punishable as a felony under the laws of this state, or any 23 other crime which involves moral turpitude. The suspension shall termi- 24 nate upon conviction of a felony resulting in such prosecutor's disbar- 25 ment pursuant to paragraph a of subdivision four of section ninety of 26 this chapter. The suspension shall continue upon conviction of any other 27 crime which involves moral turpitude and, if such conviction becomes 28 final, he or she shall be removed from office provided, however, that if 29 such conviction is of the attorney general, he or she shall be removed 30 from office pursuant to paragraph e of subdivision one of section thirty 31 of the public officers law, if applicable, or may be removed from office 32 pursuant to section thirty-two of such law. The suspension shall be 33 terminated upon reversal of the conviction and dismissal of the accusa- 34 tory instrument. 35 (c) A prosecutor who is suspended from office by the court shall 36 receive his or her salary during such period of suspension, unless the 37 court directs otherwise. If the court has so directed and such suspen- 38 sion is thereafter terminated, the court may direct that he or she shall 39 be paid his or her salary for such period of suspension. 40 (d) Nothing in this subdivision shall prevent the commission from 41 determining that a prosecutor be admonished or censured or prevent the 42 commission from recommending removal or retirement pursuant to subdivi- 43 sion seven of this section. 44 10. If during the course of or after an investigation or hearing, the 45 commission determines that the complaint or any allegation thereof 46 warrants action, other than in accordance with the provisions of subdi- 47 visions seven through nine of this section, within the powers of: (a) a 48 person having administrative jurisdiction over the prosecutor involved 49 in the complaint; or (b) an appellate division of the supreme court; or 50 (c) a presiding justice of an appellate division of the supreme court; 51 or (d) the chief judge of the court of appeals; or (e) the governor 52 pursuant to subdivision (b) of section thirteen of article thirteen of 53 the constitution; or (f) an applicable district attorney's office or 54 other prosecuting agency, the commission shall refer such complaint or 55 the appropriate allegations thereof and any evidence or material relatedS. 2412--B 8 1 thereto to such person, agency or court for such action as may be deemed 2 proper or necessary. 3 11. The commission shall notify the complainant of its disposition of 4 the complaint. 5 12. In the event of removal from office of any prosecutor, pursuant to 6 subdivision seven or eight or paragraph (a) or (b) of subdivision nine 7 of this section, a vacancy shall exist pursuant to article three of the 8 public officers law. 9 § 499-g. Confidentiality of records. Except as hereinafter provided, 10 all complaints, correspondence, commission proceedings and transcripts 11 thereof, other papers and data and records of the commission shall be 12 confidential and shall not be made available to any person except pursu- 13 ant to section four hundred ninety-nine-f of this article. The commis- 14 sion and its designated staff personnel shall have access to confiden- 15 tial material in the performance of their powers and duties. If the 16 prosecutor who is the subject of a complaint so requests in writing, 17 copies of the complaint, the transcripts of hearings by the commission 18 thereon, if any, and the dispositive action of the commission with 19 respect to the complaint, such copies with any reference to the identity 20 of any person who did not participate at any such hearing suitably 21 deleted therefrom, except the subject prosecutor or complainant, shall 22 be made available for inspection and copying to the public, or to any 23 person, agency or body designated by such prosecutor. 24 § 499-h. Breach of confidentiality of commission information. 1. Any 25 staff member, employee or agent of the state commission on prosecutorial 26 conduct who violates any of the provisions of section four hundred nine- 27 ty-nine-g of this article shall be subject to a reprimand, a fine, 28 suspension or removal by the commission. 29 2. Within ten days after the commission has acquired knowledge that a 30 staff member, employee or agent of the commission has or may have 31 breached the provisions of section four hundred ninety-nine-g of this 32 article, written charges against such staff member, employee or agent 33 shall be prepared and signed by the chairman of the commission and filed 34 with the commission. Within five days after receipt of charges, the 35 commission shall determine, by a vote of the majority of all the members 36 of the commission, whether probable cause for such charges exists. If 37 such determination is affirmative, within five days thereafter a written 38 statement specifying the charges in detail and outlining his or her 39 rights under this section shall be forwarded to the accused staff 40 member, employee or agent by certified mail. The commission may suspend 41 the staff member, employee or agent, with or without pay, pending the 42 final determination of the charges. Within ten days after receipt of the 43 statement of charges, the staff member, employee or agent shall notify 44 the commission in writing whether he or she desires a hearing on the 45 charges. The failure of the staff member, employee or agent to notify 46 the commission of his or her desire to have a hearing within such period 47 of time shall be deemed a waiver of the right to a hearing. If the hear- 48 ing has been waived, the commission shall proceed, within ten days after 49 such waiver, by a vote of a majority of all the members of such commis- 50 sion, to determine the charges and fix the penalty or punishment, if 51 any, to be imposed as hereinafter provided. 52 3. Upon receipt of a request for a hearing, the commission shall sche- 53 dule a hearing, to be held at the commission offices, within twenty days 54 after receipt of the request therefor, and shall immediately notify in 55 writing the staff member, employee or agent of the time and place there- 56 of.S. 2412--B 9 1 4. The commission shall have the power to establish necessary rules 2 and procedures for the conduct of hearings under this section. Such 3 rules shall not require compliance with technical rules of evidence. All 4 such hearings shall be held before a hearing panel composed of three 5 members of the commission selected by the commission. Each hearing shall 6 be conducted by the chairman of the panel who shall be selected by the 7 panel. The staff member, employee or agent shall have a reasonable 8 opportunity to defend himself and to testify on his or her own behalf. 9 He or she shall also have the right to be represented by counsel, to 10 subpoena witnesses and to cross-examine witnesses. All testimony taken 11 shall be under oath which the chairman of the panel is hereby authorized 12 to administer. A record of the proceedings shall be made and a copy of 13 the transcript of the hearing shall, upon written request, be furnished 14 without charge to the staff member, employee or agent involved. 15 5. Within five days after the conclusion of a hearing, the panel shall 16 forward a report of the hearing, including its findings and recommenda- 17 tions, including its recommendations as to penalty or punishment, if one 18 is warranted, to the commission and to the accused staff member, employ- 19 ee or agent. Within ten days after receipt of such report the commission 20 shall determine whether it shall implement the recommendations of the 21 panel. If the commission shall determine to implement such recommenda- 22 tions, which shall include the penalty or punishment, if any, of a 23 reprimand, a fine, suspension for a fixed time without pay or dismissal, 24 it shall do so within five days after such determination. If the charges 25 against the staff member, employee or agent are dismissed, he or she 26 shall be restored to his or her position with full pay for any period of 27 suspension without pay and the charges shall be expunged from his or her 28 record. 29 6. The accused staff member, employee or agent may seek review of the 30 recommendation by the commission by way of a special proceeding pursuant 31 to article seventy-eight of the civil practice law and rules. 32 § 499-i. Resignation not to divest commission or court of appeals of 33 jurisdiction. The jurisdiction of the court of appeals and the commis- 34 sion pursuant to this article shall continue notwithstanding that a 35 prosecutor resigns from office after a recommendation by the commission 36 that the prosecutor be removed from office has been transmitted to the 37 chief judge of the court of appeals, or in any case in which the commis- 38 sion's recommendation that a prosecutor should be removed from office 39 shall be transmitted to the chief judge of the court of appeals within 40 one hundred twenty days after receipt by the chief administrator of the 41 courts of the resignation of such prosecutor. Any determination by the 42 governor that a prosecutor who has resigned should be removed from 43 office shall render such prosecutor ineligible to hold any other prose- 44 cutorial office. 45 § 499-j. Effect. 1. The powers, duties, and functions of the state 46 commission on prosecutorial conduct shall not supersede the powers and 47 duties of the governor as outlined in section thirteen of article thir- 48 teen of the New York state constitution. 49 2. Removal or retirement of a prosecutor pursuant to this article 50 shall be considered a removal from office pursuant to section thirty of 51 the public officers law. 52 § 2. If any part or provision of this act is adjudged by a court of 53 competent jurisdiction to be unconstitutional or otherwise invalid, such 54 judgment shall not affect or impair any other part or provision of this 55 act, but shall be confined in its operation to such part or provision. 56 § 3. This act shall take effect January 1, 2018.
