Bill Text: NY S02412 | 2017-2018 | General Assembly | Amended


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--D
                               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 -- recommitted to  the  Committee  on  Judiciary  in
          accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee
        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.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08062-09-8

        S. 2412--D                          2
     1    § 499-a. Establishment of commission. A state commission of prosecuto-
     2  rial  conduct  is  hereby  established.  The  commission  shall have the
     3  authority to review the conduct of prosecutors  upon  the  filing  of  a
     4  complaint  with  the  commission  to  determine  whether said conduct as
     5  alleged  departs  from the applicable statutes, case law, New York Rules
     6  of Professional Conduct, 22 NYCRR 1200, including  but  not  limited  to
     7  Rule  3.8  (Special Responsibilities of Prosecutors and Other Government
     8  Lawyers).
     9    § 499-b. Definitions. For the purposes of this article  the  following
    10  terms have the following meanings:
    11    1. "Commission" means the state commission on prosecutorial conduct.
    12    2.  "Prosecutor"  means  a district attorney or any assistant district
    13  attorney of any county of the state in an action to exact  any  criminal
    14  penalty, fine, sanction or forfeiture.
    15    3. "Hearing" means a proceeding under subdivision four of section four
    16  hundred ninety-nine-f of this article.
    17    4.  "Member of the bar" means a person admitted to the practice of law
    18  in this state for at least five years.
    19    § 499-c. State commission on prosecutorial conduct; organization.   1.
    20  The  commission  shall  consist  of eleven members, of whom two shall be
    21  appointed by the governor, two by the temporary president of the senate,
    22  one by the minority leader of the senate, two  by  the  speaker  of  the
    23  assembly,  one  by  the minority leader of the assembly and three by the
    24  chief judge of the court of appeals. Of the  members  appointed  by  the
    25  governor  one  shall be a public defender and one shall be a prosecutor.
    26  Of the members appointed by the  chief  judge  one  person  shall  be  a
    27  justice  of the appellate division of the supreme court and two shall be
    28  judges of courts other than the court of appeals or appellate  division.
    29  Of  the  members appointed by the legislative leaders, there shall be an
    30  equal number of prosecutors and attorneys  providing  defense  services;
    31  provided,  however, that a temporary imbalance in the number of prosecu-
    32  tors and defense attorneys pending new appointments  shall  not  prevent
    33  the commission from conducting business.
    34    2.  Membership  on the commission by a prosecutor shall not constitute
    35  the holding of a public office and no prosecutor shall  be  required  to
    36  take  and  file  an oath of office before serving on the commission. The
    37  members of the commission shall elect one of their number  to  serve  as
    38  chairman  during his or her term of office or for a period of two years,
    39  whichever is shorter.
    40    3. The persons first appointed by the governor shall have respectively
    41  three and four year terms as he or  she  shall  designate.  The  persons
    42  first  appointed  by  the chief judge of the court of appeals shall have
    43  respectively two, three and four year terms as he or  she  shall  desig-
    44  nate.  The  persons  first  appointed  by the temporary president of the
    45  senate shall have respectively three and four year terms as  he  or  she
    46  shall  designate.  The  person first appointed by the minority leader of
    47  the senate shall have a two year term. The persons  first  appointed  by
    48  the  speaker of the assembly shall have respectively three and four year
    49  terms as he or she shall designate. The person first  appointed  by  the
    50  minority  leader  of  the  assembly shall have a three   year term. Each
    51  member of the commission shall be appointed thereafter  for  a  term  of
    52  four years. Commission membership of a judge or justice appointed by the
    53  governor  or  the  chief  judge shall terminate if such member ceases to
    54  hold the judicial position which qualified him or her for such  appoint-
    55  ment.  Membership  shall  also  terminate if a member attains a position
    56  which would have rendered him or her ineligible for appointment  at  the

        S. 2412--D                          3
     1  time  of  his  or  her  appointment.  A  vacancy  shall be filled by the
     2  appointing officer for the remainder of the term.
     3    4. If a member of the commission who is a prosecutor is the subject of
     4  a  complaint or investigation with respect to his or her qualifications,
     5  conduct, fitness to perform  or  performance  of  his  or  her  official
     6  duties,  he  or  she shall be disqualified from participating in any and
     7  all proceedings with respect thereto.  If a member of the commission  is
     8  employed  in  the  same  organization  as  the subject of a complaint or
     9  investigation with  respect  to  his  or  her  qualifications,  conduct,
    10  fitness  to perform, or performance of his or her official duties, he or
    11  she shall be disqualified from participating in any and all  proceedings
    12  with respect thereto.
    13    5.  Each  member of the commission shall serve without salary or other
    14  compensation, but shall be entitled  to  receive  actual  and  necessary
    15  expenses incurred in the discharge of his or her duties.
    16    6.  For any action taken pursuant to subdivisions four through nine of
    17  section four hundred ninety-nine-f or subdivision two  of  section  four
    18  hundred  ninety-nine-e  of this article, eight members of the commission
    19  shall constitute a quorum of the commission and the concurrence  of  six
    20  members  of  the  commission  shall be necessary. Two members of a three
    21  member panel of the commission shall constitute a quorum  of  the  panel
    22  and  the  concurrence of two members of the panel shall be necessary for
    23  any action taken.
    24    7. The commission shall appoint and at pleasure may remove an adminis-
    25  trator who shall be a member of the bar  who  is  not  a  prosecutor  or
    26  retired prosecutor. The administrator of the commission may appoint such
    27  deputies,  assistants,  counsel,  investigators  and  other officers and
    28  employees as he or she may deem necessary, prescribe  their  powers  and
    29  duties,  fix  their  compensation and provide for reimbursement of their
    30  expenses within the amounts appropriated therefor.
    31    § 499-d. Functions; powers and duties. The commission shall  have  the
    32  following functions, powers and duties:
    33    1.  To conduct hearings and investigations, administer oaths or affir-
    34  mations, subpoena witnesses, compel their attendance, examine them under
    35  oath or affirmation and require the production of  any  books,  records,
    36  documents  or other evidence that it may deem relevant or material to an
    37  investigation; and the commission may designate any of  its  members  or
    38  any  member of its staff to exercise any such powers, provided, however,
    39  that except as is otherwise provided in  section  four  hundred  ninety-
    40  nine-e  of this article, only a member of the commission or the adminis-
    41  trator shall exercise the power to subpoena  witnesses  or  require  the
    42  production  of  books, records, documents or other evidence.  The prose-
    43  cuting agency may inform the commission of its position that the commis-
    44  sion's investigations will substantially interfere with the agency's own
    45  investigation or prosecution. If the prosecuting agency, by  affirmation
    46  with  specificity and particularity, informs the commission of its basis
    47  for that position, the commission shall only exercise its  powers  in  a
    48  way  that  will  not  interfere with an agency's active investigation or
    49  prosecution.
    50    2. To confer immunity when the commission deems it necessary and prop-
    51  er in accordance with section  50.20  of  the  criminal  procedure  law;
    52  provided,  however, that at least forty-eight hours prior written notice
    53  of the commission's intention to  confer  such  immunity  is  given  the
    54  attorney general and the appropriate district attorney.
    55    3. To request and receive from any court, department, division, board,
    56  bureau,  commission,  or other agency of the state or political subdivi-

        S. 2412--D                          4
     1  sion thereof or any public authority such  assistance,  information  and
     2  data  as  will enable it properly to carry out its functions, powers and
     3  duties.
     4    4.  To  report  annually,  on or before the first day of March in each
     5  year and at such other times as the commission shall deem necessary,  to
     6  the  governor,  the  legislature  and  the  chief  judge of the court of
     7  appeals, with respect to proceedings which have been finally  determined
     8  by  the commission. Such reports may include legislative and administra-
     9  tive recommendations. The contents of the annual report  and  any  other
    10  report  shall  conform  to  the  provisions  of this article relating to
    11  confidentiality.
    12    5. To adopt, promulgate, amend and rescind rules and  procedures,  not
    13  otherwise  inconsistent  with law, necessary to carry out the provisions
    14  and purposes of this article.  All such rules and  procedures  shall  be
    15  filed  in  the  offices of the chief administrator of the courts and the
    16  secretary of state.
    17    6. To do all other things necessary and convenient to  carry  out  its
    18  functions, powers and duties expressly set forth in this article.
    19    §  499-e.  Panels; referees. 1. The commission may delegate any of its
    20  functions, powers and duties to a panel of three of its members, one  of
    21  whom  shall  be  a  member of the bar, except that no panel shall confer
    22  immunity in accordance with section 50.20 of the criminal procedure law.
    23  No panel shall be authorized to take any action pursuant to subdivisions
    24  four through nine of section four hundred ninety-nine-f of this  article
    25  or subdivision two of this section.
    26    2.  The  commission  may  designate  a  member of the bar who is not a
    27  prosecutor or a member of the commission or its staff as  a  referee  to
    28  hear  and  report to the commission in accordance with the provisions of
    29  section four hundred ninety-nine-f of this article. Such  referee  shall
    30  be  empowered  to  conduct  hearings,  administer oaths or affirmations,
    31  subpoena witnesses, compel their attendance, examine them under oath  or
    32  affirmation  and require the production of any books, records, documents
    33  or other evidence that the referee may deem relevant or material to  the
    34  subject of the hearing.
    35    §  499-f.  Complaint;  investigation; hearing and disposition. 1.  The
    36  commission shall receive, initiate, investigate and hear complaints with
    37  respect to the conduct, qualifications, fitness to perform, or  perform-
    38  ance  of  official  duties  of  any prosecutor, and may determine that a
    39  prosecutor be admonished, or censured; and make a recommendation to  the
    40  governor  that  a  prosecutor  be  removed  from  office for cause, for,
    41  including, but not limited to, misconduct in office, as evidenced by his
    42  or her departure from his or her obligations under appropriate  statute,
    43  case  law, and/or New York Rules of Professional Conduct, 22 NYCRR 1200,
    44  including but not limited  to  Rule  3.8  (Special  Responsibilities  of
    45  Prosecutors and Other Government Lawyers), persistent failure to perform
    46  his  or her duties, habitual intemperance and conduct, in and outside of
    47  his or her office, prejudicial to the administration of justice, or that
    48  a prosecutor be retired for mental or physical disability preventing the
    49  proper performance of his or her prosecutorial duties. A complaint shall
    50  be in writing and signed by the complainant  and,  if  directed  by  the
    51  commission,  shall  be  verified.  Upon  receipt  of a complaint (a) the
    52  commission shall conduct an investigation of the complaint; or  (b)  the
    53  commission may dismiss the complaint if it determines that the complaint
    54  on  its  face lacks merit. If the complaint is dismissed, the commission
    55  shall so notify the complainant. If the commission shall  have  notified
    56  the  prosecutor  of  the complaint, the commission shall also notify the

        S. 2412--D                          5
     1  prosecutor of such dismissal. Pursuant to  paragraph  a  of  subdivision
     2  four of section ninety of this chapter, any person being an attorney and
     3  counselor-at-law  who shall be convicted of a felony as defined in para-
     4  graph  e  of  subdivision  four of section ninety of this chapter, shall
     5  upon such conviction, cease to be any attorney and counselor-at-law,  or
     6  to be competent to practice law as such.
     7    2. The commission may, on its own motion, initiate an investigation of
     8  a prosecutor with respect to his or her qualifications, conduct, fitness
     9  to  perform  or  the performance of his or her official duties. Prior to
    10  initiating any such investigation, the commission shall file as part  of
    11  its  record  a  written  complaint,  signed  by the administrator of the
    12  commission, which complaint shall serve as the basis for  such  investi-
    13  gation.
    14    3.  In  the course of an investigation, the commission may require the
    15  appearance of the prosecutor involved before  it,  in  which  event  the
    16  prosecutor  shall  be notified in writing of his or her required appear-
    17  ance, either personally, at least three days prior to  such  appearance,
    18  or by certified mail, return receipt requested, at least five days prior
    19  to  such  appearance.  In  either  case a copy of the complaint shall be
    20  served upon the prosecutor at the time of such notification. The  prose-
    21  cutor  shall  have the right to be represented by counsel during any and
    22  all stages of the investigation  in  which  his  or  her  appearance  is
    23  required  and  to  present evidentiary data and material relevant to the
    24  complaint. A transcript shall be made  and  kept  with  respect  to  all
    25  proceedings  at which testimony or statements under oath of any party or
    26  witness shall be taken, and the transcript of the prosecutor's testimony
    27  shall be made available to the prosecutor without cost. Such  transcript
    28  shall  be  confidential  except  as  otherwise permitted by section four
    29  hundred ninety-nine-g of this article.
    30    4. If in the course of an  investigation,  the  commission  determines
    31  that  a  hearing  is  warranted  it  shall  direct that a formal written
    32  complaint signed and verified by the administrator be drawn  and  served
    33  upon  the  prosecutor  involved, either personally or by certified mail,
    34  return receipt requested. The prosecutor shall file a written answer  to
    35  the  complaint  with  the commission within twenty days of such service.
    36  If, upon receipt of the answer,  or  upon  expiration  of  the  time  to
    37  answer,  the commission shall direct that a hearing be held with respect
    38  to the complaint, the prosecutor involved shall be notified  in  writing
    39  of the date of the hearing either personally, at least twenty days prior
    40  thereto,  or by certified mail, return receipt requested, at least twen-
    41  ty-two days prior thereto. Upon the written request of  the  prosecutor,
    42  the  commission  shall,  at  least five days prior to the hearing or any
    43  adjourned date thereof, make available to the  prosecutor  without  cost
    44  copies  of all documents which the commission intends to present at such
    45  hearing and any written statements made by witnesses who will be  called
    46  to  give testimony by the commission. The commission shall, in any case,
    47  make available to the prosecutor at least five days prior to the hearing
    48  or any adjourned date thereof any exculpatory evidentiary data and mate-
    49  rial relevant to the complaint. The failure of the commission to  timely
    50  furnish  any  documents,  statements and/or exculpatory evidentiary data
    51  and material provided for herein shall not affect the  validity  of  any
    52  proceedings  before  the  commission  provided  that such failure is not
    53  substantially prejudicial to the  prosecutor.  The  complainant  may  be
    54  notified  of  the  hearing and unless he or she shall be subpoenaed as a
    55  witness by the prosecutor, his or her presence thereat shall  be  within
    56  the discretion of the commission. The hearing shall not be public unless

        S. 2412--D                          6
     1  the  prosecutor  involved shall so demand in writing. At the hearing the
     2  commission may take the testimony of witnesses and  receive  evidentiary
     3  data  and  material relevant to the complaint. The prosecutor shall have
     4  the  right to be represented by counsel during any and all stages of the
     5  hearing and shall have the right to call and cross-examine witnesses and
     6  present evidentiary data and material relevant to the complaint. A tran-
     7  script of the proceedings and of the testimony of witnesses at the hear-
     8  ing shall be taken and kept with the records of the commission.
     9    5. Subject to the approval of the commission,  the  administrator  and
    10  the  prosecutor  may  agree on a statement of facts and may stipulate in
    11  writing that the hearing shall be waived. In such a case, the commission
    12  shall make its determination upon the pleadings and the agreed statement
    13  of facts.
    14    6. If, after a formal written complaint has been  served  pursuant  to
    15  subdivision  four  of  this  section, or during the course of or after a
    16  hearing, the commission determines that no further action is  necessary,
    17  the  complaint shall be dismissed and the complainant and the prosecutor
    18  shall be so notified in writing.
    19    7. After a hearing, the commission may determine that a prosecutor  be
    20  admonished or censured, or may recommend to the governor that a prosecu-
    21  tor  be removed from office for cause. The commission shall transmit its
    22  written determination, together with its findings of  fact  and  conclu-
    23  sions  of  law and the record of the proceedings upon which its determi-
    24  nation is based, to the chief judge of the court of  appeals  who  shall
    25  cause  a  copy  thereof  to  be served either personally or by certified
    26  mail,  return  receipt  requested,  on  the  prosecutor  involved.  Upon
    27  completion of service, the determination of the commission, its findings
    28  and  conclusions  and the record of its proceedings shall be made public
    29  and shall be made available  for  public  inspection  at  the  principal
    30  office  of the commission and at the office of the clerk of the court of
    31  appeals. The prosecutor involved may either accept the determination  of
    32  the commission or make written request to the chief judge, within thirty
    33  days  after  receipt  of such determination, for a review thereof by the
    34  court of appeals. If the commission has determined that a prosecutor  be
    35  admonished or censured, and if the prosecutor accepts such determination
    36  or  fails  to  request  a  review  thereof  by the court of appeals, the
    37  commission shall thereupon admonish or censure him or her in  accordance
    38  with  its  findings. If the commission has recommended that a prosecutor
    39  be removed or retired and the prosecutor accepts such  determination  or
    40  fails  to request a review thereof by the court of appeals, the court of
    41  appeals shall thereupon transmit the commission's findings to the gover-
    42  nor who will independently determine whether the  prosecutor  should  be
    43  removed or retired.
    44    8.  If  the  prosecutor  requests a review of the determination of the
    45  commission, in its review of a determination of the commission  pursuant
    46  to  the  second undesignated paragraph of subdivision b of section three
    47  of article six of the state constitution, the  court  of  appeals  shall
    48  review  the  commission's findings of fact and conclusions of law on the
    49  record of the proceedings upon which the commission's determination  was
    50  based.  After such review, the court may accept or reject the determined
    51  sanction; impose a different sanction including admonition  or  censure,
    52  recommend removal or retirement for the reasons set forth in subdivision
    53  one  of  this  section; or impose no sanction.  However, if the court of
    54  appeals recommends removal or retirement, it shall,  together  with  the
    55  commission,  transmit  the  entire record to the governor who will inde-
    56  pendently determine whether a prosecutor should be removed or retired.

        S. 2412--D                          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--D                          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  of

        S. 2412--D                          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 on the first of January next succeed-
    45  ing the date upon which it shall have become a law.
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