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--C 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 -- reported favorably from said committee and committed to the Committee on Finance -- 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08062-07-7S. 2412--C 2 1 complaint with the commission to determine whether said conduct as 2 alleged departs from the applicable statutes, case law, New York Rules 3 of Professional Conduct, 22 NYCRR 1200, including but not limited to 4 Rule 3.8 (Special Responsibilities of Prosecutors and Other Government 5 Lawyers). 6 § 499-b. Definitions. For the purposes of this article the following 7 terms have the following meanings: 8 1. "Commission" means the state commission on prosecutorial conduct. 9 2. "Prosecutor" means a district attorney or any assistant district 10 attorney of any county of the state in an action to exact any criminal 11 penalty, fine, sanction or forfeiture. 12 3. "Hearing" means a proceeding under subdivision four of section four 13 hundred ninety-nine-f of this article. 14 4. "Member of the bar" means a person admitted to the practice of law 15 in this state for at least five years. 16 § 499-c. State commission on prosecutorial conduct; organization. 1. 17 The commission shall consist of eleven members, of whom two shall be 18 appointed by the governor, two by the temporary president of the senate, 19 one by the minority leader of the senate, two by the speaker of the 20 assembly, one by the minority leader of the assembly and three by the 21 chief judge of the court of appeals. Of the members appointed by the 22 governor one shall be a public defender and one shall be a prosecutor. 23 Of the members appointed by the chief judge one person shall be a 24 justice of the appellate division of the supreme court and two shall be 25 judges of courts other than the court of appeals or appellate division. 26 Of the members appointed by the legislative leaders, there shall be an 27 equal number of prosecutors and attorneys providing defense services; 28 provided, however, that a temporary imbalance in the number of prosecu- 29 tors and defense attorneys pending new appointments shall not prevent 30 the commission from conducting business. 31 2. Membership on the commission by a prosecutor shall not constitute 32 the holding of a public office and no prosecutor shall be required to 33 take and file an oath of office before serving on the commission. The 34 members of the commission shall elect one of their number to serve as 35 chairman during his or her term of office or for a period of two years, 36 whichever is shorter. 37 3. The persons first appointed by the governor shall have respectively 38 three and four year terms as he or she shall designate. The persons 39 first appointed by the chief judge of the court of appeals shall have 40 respectively two, three and four year terms as he or she shall desig- 41 nate. The persons first appointed by the temporary president of the 42 senate shall have respectively three and four year terms as he or she 43 shall designate. The person first appointed by the minority leader of 44 the senate shall have a two year term. The persons first appointed by 45 the speaker of the assembly shall have respectively three and four year 46 terms as he or she shall designate. The person first appointed by the 47 minority leader of the assembly shall have a three year term. Each 48 member of the commission shall be appointed thereafter for a term of 49 four years. Commission membership of a judge or justice appointed by the 50 governor or the chief judge shall terminate if such member ceases to 51 hold the judicial position which qualified him or her for such appoint- 52 ment. Membership shall also terminate if a member attains a position 53 which would have rendered him or her ineligible for appointment at the 54 time of his or her appointment. A vacancy shall be filled by the 55 appointing officer for the remainder of the term.S. 2412--C 3 1 4. If a member of the commission who is a prosecutor is the subject of 2 a complaint or investigation with respect to his or her qualifications, 3 conduct, fitness to perform or performance of his or her official 4 duties, he or she shall be disqualified from participating in any and 5 all proceedings with respect thereto. If a member of the commission is 6 employed in the same organization as the subject of a complaint or 7 investigation with respect to his or her qualifications, conduct, 8 fitness to perform, or performance of his or her official duties, he or 9 she shall be disqualified from participating in any and all proceedings 10 with respect thereto. 11 5. Each member of the commission shall serve without salary or other 12 compensation, but shall be entitled to receive actual and necessary 13 expenses incurred in the discharge of his or her duties. 14 6. For any action taken pursuant to subdivisions four through nine of 15 section four hundred ninety-nine-f or subdivision two of section four 16 hundred ninety-nine-e of this article, eight members of the commission 17 shall constitute a quorum of the commission and the concurrence of six 18 members of the commission shall be necessary. Two members of a three 19 member panel of the commission shall constitute a quorum of the panel 20 and the concurrence of two members of the panel shall be necessary for 21 any action taken. 22 7. The commission shall appoint and at pleasure may remove an adminis- 23 trator who shall be a member of the bar who is not a prosecutor or 24 retired prosecutor. The administrator of the commission may appoint such 25 deputies, assistants, counsel, investigators and other officers and 26 employees as he or she may deem necessary, prescribe their powers and 27 duties, fix their compensation and provide for reimbursement of their 28 expenses within the amounts appropriated therefor. 29 § 499-d. Functions; powers and duties. The commission shall have the 30 following functions, powers and duties: 31 1. To conduct hearings and investigations, administer oaths or affir- 32 mations, subpoena witnesses, compel their attendance, examine them under 33 oath or affirmation and require the production of any books, records, 34 documents or other evidence that it may deem relevant or material to an 35 investigation; and the commission may designate any of its members or 36 any member of its staff to exercise any such powers, provided, however, 37 that except as is otherwise provided in section four hundred ninety- 38 nine-e of this article, only a member of the commission or the adminis- 39 trator shall exercise the power to subpoena witnesses or require the 40 production of books, records, documents or other evidence. The prose- 41 cuting agency may inform the commission of its position that the commis- 42 sion's investigations will substantially interfere with the agency's own 43 investigation or prosecution. If the prosecuting agency, by affirmation 44 with specificity and particularity, informs the commission of its basis 45 for that position, the commission shall only exercise its powers in a 46 way that will not interfere with an agency's active investigation or 47 prosecution. 48 2. To confer immunity when the commission deems it necessary and prop- 49 er in accordance with section 50.20 of the criminal procedure law; 50 provided, however, that at least forty-eight hours prior written notice 51 of the commission's intention to confer such immunity is given the 52 attorney general and the appropriate district attorney. 53 3. To request and receive from any court, department, division, board, 54 bureau, commission, or other agency of the state or political subdivi- 55 sion thereof or any public authority such assistance, information andS. 2412--C 4 1 data as will enable it properly to carry out its functions, powers and 2 duties. 3 4. To report annually, on or before the first day of March in each 4 year and at such other times as the commission shall deem necessary, to 5 the governor, the legislature and the chief judge of the court of 6 appeals, with respect to proceedings which have been finally determined 7 by the commission. Such reports may include legislative and administra- 8 tive recommendations. The contents of the annual report and any other 9 report shall conform to the provisions of this article relating to 10 confidentiality. 11 5. To adopt, promulgate, amend and rescind rules and procedures, not 12 otherwise inconsistent with law, necessary to carry out the provisions 13 and purposes of this article. All such rules and procedures shall be 14 filed in the offices of the chief administrator of the courts and the 15 secretary of state. 16 6. To do all other things necessary and convenient to carry out its 17 functions, powers and duties expressly set forth in this article. 18 § 499-e. Panels; referees. 1. The commission may delegate any of its 19 functions, powers and duties to a panel of three of its members, one of 20 whom shall be a member of the bar, except that no panel shall confer 21 immunity in accordance with section 50.20 of the criminal procedure law. 22 No panel shall be authorized to take any action pursuant to subdivisions 23 four through nine of section four hundred ninety-nine-f of this article 24 or subdivision two of this section. 25 2. The commission may designate a member of the bar who is not a 26 prosecutor or a member of the commission or its staff as a referee to 27 hear and report to the commission in accordance with the provisions of 28 section four hundred ninety-nine-f of this article. Such referee shall 29 be empowered to conduct hearings, administer oaths or affirmations, 30 subpoena witnesses, compel their attendance, examine them under oath or 31 affirmation and require the production of any books, records, documents 32 or other evidence that the referee may deem relevant or material to the 33 subject of the hearing. 34 § 499-f. Complaint; investigation; hearing and disposition. 1. The 35 commission shall receive, initiate, investigate and hear complaints with 36 respect to the conduct, qualifications, fitness to perform, or perform- 37 ance of official duties of any prosecutor, and may determine that a 38 prosecutor be admonished, or censured; and make a recommendation to the 39 governor that a prosecutor be removed from office for cause, for, 40 including, but not limited to, misconduct in office, as evidenced by his 41 or her departure from his or her obligations under appropriate statute, 42 case law, and/or New York Rules of Professional Conduct, 22 NYCRR 1200, 43 including but not limited to Rule 3.8 (Special Responsibilities of 44 Prosecutors and Other Government Lawyers), persistent failure to perform 45 his or her duties, habitual intemperance and conduct, in and outside of 46 his or her office, prejudicial to the administration of justice, or that 47 a prosecutor be retired for mental or physical disability preventing the 48 proper performance of his or her prosecutorial duties. A complaint shall 49 be in writing and signed by the complainant and, if directed by the 50 commission, shall be verified. Upon receipt of a complaint (a) the 51 commission shall conduct an investigation of the complaint; or (b) the 52 commission may dismiss the complaint if it determines that the complaint 53 on its face lacks merit. If the complaint is dismissed, the commission 54 shall so notify the complainant. If the commission shall have notified 55 the prosecutor of the complaint, the commission shall also notify the 56 prosecutor of such dismissal. Pursuant to paragraph a of subdivisionS. 2412--C 5 1 four of section ninety of this chapter, any person being an attorney and 2 counselor-at-law who shall be convicted of a felony as defined in para- 3 graph e of subdivision four of section ninety of this chapter, shall 4 upon such conviction, cease to be any attorney and counselor-at-law, or 5 to be competent to practice law as such. 6 2. The commission may, on its own motion, initiate an investigation of 7 a prosecutor with respect to his or her qualifications, conduct, fitness 8 to perform or the performance of his or her official duties. Prior to 9 initiating any such investigation, the commission shall file as part of 10 its record a written complaint, signed by the administrator of the 11 commission, which complaint shall serve as the basis for such investi- 12 gation. 13 3. In the course of an investigation, the commission may require the 14 appearance of the prosecutor involved before it, in which event the 15 prosecutor shall be notified in writing of his or her required appear- 16 ance, either personally, at least three days prior to such appearance, 17 or by certified mail, return receipt requested, at least five days prior 18 to such appearance. In either case a copy of the complaint shall be 19 served upon the prosecutor at the time of such notification. The prose- 20 cutor shall have the right to be represented by counsel during any and 21 all stages of the investigation in which his or her appearance is 22 required and to present evidentiary data and material relevant to the 23 complaint. A transcript shall be made and kept with respect to all 24 proceedings at which testimony or statements under oath of any party or 25 witness shall be taken, and the transcript of the prosecutor's testimony 26 shall be made available to the prosecutor without cost. Such transcript 27 shall be confidential except as otherwise permitted by section four 28 hundred ninety-nine-g of this article. 29 4. If in the course of an investigation, the commission determines 30 that a hearing is warranted it shall direct that a formal written 31 complaint signed and verified by the administrator be drawn and served 32 upon the prosecutor involved, either personally or by certified mail, 33 return receipt requested. The prosecutor shall file a written answer to 34 the complaint with the commission within twenty days of such service. 35 If, upon receipt of the answer, or upon expiration of the time to 36 answer, the commission shall direct that a hearing be held with respect 37 to the complaint, the prosecutor involved shall be notified in writing 38 of the date of the hearing either personally, at least twenty days prior 39 thereto, or by certified mail, return receipt requested, at least twen- 40 ty-two days prior thereto. Upon the written request of the prosecutor, 41 the commission shall, at least five days prior to the hearing or any 42 adjourned date thereof, make available to the prosecutor without cost 43 copies of all documents which the commission intends to present at such 44 hearing and any written statements made by witnesses who will be called 45 to give testimony by the commission. The commission shall, in any case, 46 make available to the prosecutor at least five days prior to the hearing 47 or any adjourned date thereof any exculpatory evidentiary data and mate- 48 rial relevant to the complaint. The failure of the commission to timely 49 furnish any documents, statements and/or exculpatory evidentiary data 50 and material provided for herein shall not affect the validity of any 51 proceedings before the commission provided that such failure is not 52 substantially prejudicial to the prosecutor. The complainant may be 53 notified of the hearing and unless he or she shall be subpoenaed as a 54 witness by the prosecutor, his or her presence thereat shall be within 55 the discretion of the commission. The hearing shall not be public unless 56 the prosecutor involved shall so demand in writing. At the hearing theS. 2412--C 6 1 commission may take the testimony of witnesses and receive evidentiary 2 data and material relevant to the complaint. The prosecutor shall have 3 the right to be represented by counsel during any and all stages of the 4 hearing and shall have the right to call and cross-examine witnesses and 5 present evidentiary data and material relevant to the complaint. A tran- 6 script of the proceedings and of the testimony of witnesses at the hear- 7 ing shall be taken and kept with the records of the commission. 8 5. Subject to the approval of the commission, the administrator and 9 the prosecutor may agree on a statement of facts and may stipulate in 10 writing that the hearing shall be waived. In such a case, the commission 11 shall make its determination upon the pleadings and the agreed statement 12 of facts. 13 6. If, after a formal written complaint has been served pursuant to 14 subdivision four of this section, or during the course of or after a 15 hearing, the commission determines that no further action is necessary, 16 the complaint shall be dismissed and the complainant and the prosecutor 17 shall be so notified in writing. 18 7. After a hearing, the commission may determine that a prosecutor be 19 admonished or censured, or may recommend to the governor that a prosecu- 20 tor be removed from office for cause. The commission shall transmit its 21 written determination, together with its findings of fact and conclu- 22 sions of law and the record of the proceedings upon which its determi- 23 nation is based, to the chief judge of the court of appeals who shall 24 cause a copy thereof to be served either personally or by certified 25 mail, return receipt requested, on the prosecutor involved. Upon 26 completion of service, the determination of the commission, its findings 27 and conclusions and the record of its proceedings shall be made public 28 and shall be made available for public inspection at the principal 29 office of the commission and at the office of the clerk of the court of 30 appeals. The prosecutor involved may either accept the determination of 31 the commission or make written request to the chief judge, within thirty 32 days after receipt of such determination, for a review thereof by the 33 court of appeals. If the commission has determined that a prosecutor be 34 admonished or censured, and if the prosecutor accepts such determination 35 or fails to request a review thereof by the court of appeals, the 36 commission shall thereupon admonish or censure him or her in accordance 37 with its findings. If the commission has recommended that a prosecutor 38 be removed or retired and the prosecutor accepts such determination or 39 fails to request a review thereof by the court of appeals, the court of 40 appeals shall thereupon transmit the commission's findings to the gover- 41 nor who will independently determine whether the prosecutor should be 42 removed or retired. 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.S. 2412--C 7 1 9. (a) The court of appeals may suspend a prosecutor from exercising 2 the powers of his or her office while there is pending a determination 3 by the commission for his or her removal or retirement, or while he or 4 she is charged in this state with a felony by an indictment or an infor- 5 mation filed pursuant to section six of article one of the constitution. 6 The suspension shall terminate upon conviction of a felony resulting in 7 such prosecutor's disbarment pursuant to paragraph a of subdivision four 8 of section ninety of this chapter. If such conviction becomes final, he 9 or she shall be removed from office. The suspension shall be terminated 10 upon reversal of the conviction and dismissal of the accusatory instru- 11 ment. 12 (b) Upon the recommendation of the commission or on its own motion, 13 the court may suspend a prosecutor from office when he or she is charged 14 with a crime punishable as a felony under the laws of this state, or any 15 other crime which involves moral turpitude. The suspension shall termi- 16 nate upon conviction of a felony resulting in such prosecutor's disbar- 17 ment pursuant to paragraph a of subdivision four of section ninety of 18 this chapter. The suspension shall continue upon conviction of any other 19 crime which involves moral turpitude and, if such conviction becomes 20 final, he or she shall be removed from office. The suspension shall be 21 terminated upon reversal of the conviction and dismissal of the accusa- 22 tory instrument. 23 (c) A prosecutor who is suspended from office by the court shall 24 receive his or her salary during such period of suspension, unless the 25 court directs otherwise. If the court has so directed and such suspen- 26 sion is thereafter terminated, the court may direct that he or she shall 27 be paid his or her salary for such period of suspension. 28 (d) Nothing in this subdivision shall prevent the commission from 29 determining that a prosecutor be admonished or censured or prevent the 30 commission from recommending removal or retirement pursuant to subdivi- 31 sion seven of this section. 32 10. If during the course of or after an investigation or hearing, the 33 commission determines that the complaint or any allegation thereof 34 warrants action, other than in accordance with the provisions of subdi- 35 visions seven through nine of this section, within the powers of: (a) a 36 person having administrative jurisdiction over the prosecutor involved 37 in the complaint; or (b) an appellate division of the supreme court; or 38 (c) a presiding justice of an appellate division of the supreme court; 39 or (d) the chief judge of the court of appeals; or (e) the governor 40 pursuant to subdivision (b) of section thirteen of article thirteen of 41 the constitution; or (f) an applicable district attorney's office or 42 other prosecuting agency, the commission shall refer such complaint or 43 the appropriate allegations thereof and any evidence or material related 44 thereto to such person, agency or court for such action as may be deemed 45 proper or necessary. 46 11. The commission shall notify the complainant of its disposition of 47 the complaint. 48 12. In the event of removal from office of any prosecutor, pursuant to 49 subdivision seven or eight or paragraph (a) or (b) of subdivision nine 50 of this section, a vacancy shall exist pursuant to article three of the 51 public officers law. 52 § 499-g. Confidentiality of records. Except as hereinafter provided, 53 all complaints, correspondence, commission proceedings and transcripts 54 thereof, other papers and data and records of the commission shall be 55 confidential and shall not be made available to any person except pursu- 56 ant to section four hundred ninety-nine-f of this article. The commis-S. 2412--C 8 1 sion and its designated staff personnel shall have access to confiden- 2 tial material in the performance of their powers and duties. If the 3 prosecutor who is the subject of a complaint so requests in writing, 4 copies of the complaint, the transcripts of hearings by the commission 5 thereon, if any, and the dispositive action of the commission with 6 respect to the complaint, such copies with any reference to the identity 7 of any person who did not participate at any such hearing suitably 8 deleted therefrom, except the subject prosecutor or complainant, shall 9 be made available for inspection and copying to the public, or to any 10 person, agency or body designated by such prosecutor. 11 § 499-h. Breach of confidentiality of commission information. 1. Any 12 staff member, employee or agent of the state commission on prosecutorial 13 conduct who violates any of the provisions of section four hundred nine- 14 ty-nine-g of this article shall be subject to a reprimand, a fine, 15 suspension or removal by the commission. 16 2. Within ten days after the commission has acquired knowledge that a 17 staff member, employee or agent of the commission has or may have 18 breached the provisions of section four hundred ninety-nine-g of this 19 article, written charges against such staff member, employee or agent 20 shall be prepared and signed by the chairman of the commission and filed 21 with the commission. Within five days after receipt of charges, the 22 commission shall determine, by a vote of the majority of all the members 23 of the commission, whether probable cause for such charges exists. If 24 such determination is affirmative, within five days thereafter a written 25 statement specifying the charges in detail and outlining his or her 26 rights under this section shall be forwarded to the accused staff 27 member, employee or agent by certified mail. The commission may suspend 28 the staff member, employee or agent, with or without pay, pending the 29 final determination of the charges. Within ten days after receipt of the 30 statement of charges, the staff member, employee or agent shall notify 31 the commission in writing whether he or she desires a hearing on the 32 charges. The failure of the staff member, employee or agent to notify 33 the commission of his or her desire to have a hearing within such period 34 of time shall be deemed a waiver of the right to a hearing. If the hear- 35 ing has been waived, the commission shall proceed, within ten days after 36 such waiver, by a vote of a majority of all the members of such commis- 37 sion, to determine the charges and fix the penalty or punishment, if 38 any, to be imposed as hereinafter provided. 39 3. Upon receipt of a request for a hearing, the commission shall sche- 40 dule a hearing, to be held at the commission offices, within twenty days 41 after receipt of the request therefor, and shall immediately notify in 42 writing the staff member, employee or agent of the time and place there- 43 of. 44 4. The commission shall have the power to establish necessary rules 45 and procedures for the conduct of hearings under this section. Such 46 rules shall not require compliance with technical rules of evidence. All 47 such hearings shall be held before a hearing panel composed of three 48 members of the commission selected by the commission. Each hearing shall 49 be conducted by the chairman of the panel who shall be selected by the 50 panel. The staff member, employee or agent shall have a reasonable 51 opportunity to defend himself and to testify on his or her own behalf. 52 He or she shall also have the right to be represented by counsel, to 53 subpoena witnesses and to cross-examine witnesses. All testimony taken 54 shall be under oath which the chairman of the panel is hereby authorized 55 to administer. A record of the proceedings shall be made and a copy ofS. 2412--C 9 1 the transcript of the hearing shall, upon written request, be furnished 2 without charge to the staff member, employee or agent involved. 3 5. Within five days after the conclusion of a hearing, the panel shall 4 forward a report of the hearing, including its findings and recommenda- 5 tions, including its recommendations as to penalty or punishment, if one 6 is warranted, to the commission and to the accused staff member, employ- 7 ee or agent. Within ten days after receipt of such report the commission 8 shall determine whether it shall implement the recommendations of the 9 panel. If the commission shall determine to implement such recommenda- 10 tions, which shall include the penalty or punishment, if any, of a 11 reprimand, a fine, suspension for a fixed time without pay or dismissal, 12 it shall do so within five days after such determination. If the charges 13 against the staff member, employee or agent are dismissed, he or she 14 shall be restored to his or her position with full pay for any period of 15 suspension without pay and the charges shall be expunged from his or her 16 record. 17 6. The accused staff member, employee or agent may seek review of the 18 recommendation by the commission by way of a special proceeding pursuant 19 to article seventy-eight of the civil practice law and rules. 20 § 499-i. Resignation not to divest commission or court of appeals of 21 jurisdiction. The jurisdiction of the court of appeals and the commis- 22 sion pursuant to this article shall continue notwithstanding that a 23 prosecutor resigns from office after a recommendation by the commission 24 that the prosecutor be removed from office has been transmitted to the 25 chief judge of the court of appeals, or in any case in which the commis- 26 sion's recommendation that a prosecutor should be removed from office 27 shall be transmitted to the chief judge of the court of appeals within 28 one hundred twenty days after receipt by the chief administrator of the 29 courts of the resignation of such prosecutor. Any determination by the 30 governor that a prosecutor who has resigned should be removed from 31 office shall render such prosecutor ineligible to hold any other prose- 32 cutorial office. 33 § 499-j. Effect. 1. The powers, duties, and functions of the state 34 commission on prosecutorial conduct shall not supersede the powers and 35 duties of the governor as outlined in section thirteen of article thir- 36 teen of the New York state constitution. 37 2. Removal or retirement of a prosecutor pursuant to this article 38 shall be considered a removal from office pursuant to section thirty of 39 the public officers law. 40 § 2. If any part or provision of this act is adjudged by a court of 41 competent jurisdiction to be unconstitutional or otherwise invalid, such 42 judgment shall not affect or impair any other part or provision of this 43 act, but shall be confined in its operation to such part or provision. 44 § 3. This act shall take effect January 1, 2018.
