Bill Text: NY S08815 | 2019-2020 | General Assembly | Introduced

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

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-07-20 - REFERRED TO RULES [S08815 Detail]

Download: New_York-2019-S08815-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          8815

                    IN SENATE

                                      July 20, 2020
                                       ___________

        Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules

        AN ACT to amend the judiciary law, in relation to the  state  commission
          on prosecutorial conduct

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16898-07-0
        S. 8815                             2

     1    5. ["Presiding justices of the appellate division" shall mean, collec-
     2  tively, the presiding justices of the appellate division of the  supreme
     3  court of each judicial department. The chief administrative judge shall,
     4  by  rule, establish an appropriate mechanism, not inconsistent with law,
     5  for  persons and entities interacting with the presiding justices of the
     6  appellate division pursuant to this article to file papers and  communi-
     7  cate with such body.
     8    6.]  "Retired  judge"  shall  mean  a  former  judge or justice of the
     9  unified court system who  was  qualified  as  an  attorney  during  such
    10  service and served as such a judge or justice for at least five years.
    11    §  3.  Subdivision 6 of section 499-c of the judiciary law, as amended
    12  by chapter 23 of the laws of 2019, is amended to read as follows:
    13    6. For any action taken pursuant to subdivisions four  through  [nine]
    14  seven  of  section  four  hundred  ninety-nine-f  or  subdivision two of
    15  section four hundred ninety-nine-e of this article, eight members of the
    16  commission shall constitute a quorum of the commission and  the  concur-
    17  rence  of  six members of the commission shall be necessary. Two members
    18  of a three member panel of the commission shall constitute a  quorum  of
    19  the  panel  and  the  concurrence  of  two members of the panel shall be
    20  necessary for any action taken.
    21    § 4. Section 499-f of the judiciary law, as amended by chapter  23  of
    22  the laws of 2019, is amended to read as follows:
    23    §  499-f.  Complaint;  investigation;  hearing and disposition. 1. The
    24  commission shall receive, initiate, investigate and hear complaints with
    25  respect  to  the  conduct[,  qualifications,  fitness  to  perform,]  or
    26  performance  of  official  duties  of any prosecutor[, and may determine
    27  that a prosecutor be admonished, or censured]; and may make a  recommen-
    28  dation  to  the  governor  that  a prosecutor be removed from office for
    29  cause, for, including, but not limited  to,  misconduct  in  office,  as
    30  evidenced  by  his  or  her  departure from his or her obligations under
    31  appropriate statute, case law, and/or New  York  Rules  of  Professional
    32  Conduct,  22  NYCRR  1200,  or  any subset thereof or successor thereto,
    33  including but not limited  to  Rule  3.8  (Special  Responsibilities  of
    34  Prosecutors and Other Government Lawyers), persistent failure to perform
    35  his or her duties, conduct prejudicial to the administration of justice,
    36  or  that  a  prosecutor  be  retired  for  mental or physical disability
    37  preventing the proper performance of his or her prosecutorial duties.  A
    38  complaint  shall  be  in  writing  and signed by the complainant and, if
    39  directed by the  commission,  shall  be  verified.  Upon  receipt  of  a
    40  complaint  (a)  the  commission  shall  conduct  an investigation of the
    41  complaint; or (b) the commission may dismiss the complaint if it  deter-
    42  mines  that  the  complaint on its face lacks merit. If the complaint is
    43  dismissed, the commission  shall  so  notify  the  complainant.  If  the
    44  commission  shall  have  notified  the  prosecutor of the complaint, the
    45  commission shall also notify the prosecutor of such dismissal.  Pursuant
    46  to  paragraph  a  of subdivision four of section ninety of this chapter,
    47  any person being an attorney and counselor-at-law who shall be convicted
    48  of a felony as defined in paragraph e of  subdivision  four  of  section
    49  ninety  of  this  chapter,  shall  upon such conviction, cease to be any
    50  attorney and counselor-at-law, or to be competent  to  practice  law  as
    51  such.
    52    2. The commission may, on its own motion, initiate an investigation of
    53  a  prosecutor  with  respect  to  his or her [qualifications,] conduct[,
    54  fitness to perform] or the performance of his or  her  official  duties.
    55  Prior to initiating any such investigation, the commission shall file as
    56  part  of  its record a written complaint, signed by the administrator of
        S. 8815                             3

     1  the commission, which complaint shall serve as the basis for such inves-
     2  tigation.
     3    3.  In  the course of an investigation, the commission may require the
     4  appearance of the prosecutor involved before  it,  in  which  event  the
     5  prosecutor  shall  be notified in writing of his or her required appear-
     6  ance, either personally, at least three days prior to  such  appearance,
     7  or by certified mail, return receipt requested, at least five days prior
     8  to  such  appearance.  In  either  case a copy of the complaint shall be
     9  served upon the prosecutor at the time of such notification. The  prose-
    10  cutor  shall  have the right to be represented by counsel during any and
    11  all stages of the investigation  in  which  his  or  her  appearance  is
    12  required  and  to  present evidentiary data and material relevant to the
    13  complaint. A transcript shall be made  and  kept  with  respect  to  all
    14  proceedings  at which testimony or statements under oath of any party or
    15  witness shall be taken, and the transcript of the prosecutor's testimony
    16  shall be made available to the prosecutor without cost. Such  transcript
    17  shall  be  confidential  except  as  otherwise permitted by section four
    18  hundred ninety-nine-g of this article.
    19    4. If in the course of an  investigation,  the  commission  determines
    20  that  a  hearing  is  warranted  it  shall  direct that a formal written
    21  complaint signed and verified by the administrator be drawn  and  served
    22  upon  the  prosecutor  involved, either personally or by certified mail,
    23  return receipt requested. The prosecutor shall file a written answer  to
    24  the  complaint  with  the commission within twenty days of such service.
    25  If, upon receipt of the answer,  or  upon  expiration  of  the  time  to
    26  answer,  the commission shall direct that a hearing be held with respect
    27  to the complaint, the prosecutor involved shall be notified  in  writing
    28  of the date of the hearing either personally, at least twenty days prior
    29  thereto,  or by certified mail, return receipt requested, at least twen-
    30  ty-two days prior thereto. Upon the written request of  the  prosecutor,
    31  the  commission  shall,  at  least five days prior to the hearing or any
    32  adjourned date thereof, make available to the  prosecutor  without  cost
    33  copies  of all documents which the commission intends to present at such
    34  hearing and any written statements made by witnesses who will be  called
    35  to  give testimony by the commission. The commission shall, in any case,
    36  make available to the prosecutor at least five days prior to the hearing
    37  or any adjourned date thereof any exculpatory evidentiary data and mate-
    38  rial relevant to the complaint. The failure of the commission to  timely
    39  furnish  any  documents,  statements and/or exculpatory evidentiary data
    40  and material provided for herein shall not affect the  validity  of  any
    41  proceedings  before  the  commission  provided  that such failure is not
    42  substantially prejudicial to the prosecutor.   The  complainant  may  be
    43  notified  of  the  hearing and unless he or she shall be subpoenaed as a
    44  witness by the prosecutor, his or her presence thereat shall  be  within
    45  the discretion of the commission. The hearing shall not be public unless
    46  the  prosecutor  involved shall so demand in writing. At the hearing the
    47  commission may take the testimony of witnesses and  receive  evidentiary
    48  data  and  material relevant to the complaint. The prosecutor shall have
    49  the right to be represented by counsel during any and all stages of  the
    50  hearing and shall have the right to call and cross-examine witnesses and
    51  present evidentiary data and material relevant to the complaint. A tran-
    52  script of the proceedings and of the testimony of witnesses at the hear-
    53  ing shall be taken and kept with the records of the commission.
    54    5.  Subject  to  the approval of the commission, the administrator and
    55  the prosecutor may agree on a statement of facts and  may  stipulate  in
    56  writing that the hearing shall be waived. In such a case, the commission
        S. 8815                             4

     1  shall  [make  its  determination  upon  the pleadings and] rely upon the
     2  agreed statement of facts in forming the commission's findings of fact.
     3    6.  If,  after  a formal written complaint has been served pursuant to
     4  subdivision four of this section, or during the course  of  or  after  a
     5  hearing,  the commission determines that no further action is necessary,
     6  the complaint shall be dismissed and the complainant and the  prosecutor
     7  shall be so notified in writing.
     8    7. [After a hearing, the commission may determine that a prosecutor be
     9  admonished or censured, or may recommend to the governor that a prosecu-
    10  tor be removed from office for cause.] The commission shall transmit its
    11  [written determination, together with its] findings of fact and [conclu-
    12  sions  of  law]  recommendations  and the record of the proceedings upon
    13  which [its determination  is]  such  findings  and  recommendations  are
    14  based,  to  the [presiding justices of the] attorney grievance committee
    15  of the appellate division [who] in the department where  the  prosecutor
    16  was  admitted to practice, which shall cause a copy thereof to be served
    17  either personally or by certified mail, return receipt requested, on the
    18  prosecutor involved. Upon completion of service, the  [determination  of
    19  the commission, its] commission's findings and [conclusions] recommenda-
    20  tions  and  the record of its proceedings shall be made public and shall
    21  be made available for public inspection at the principal office  of  the
    22  commission  and  at the office of the clerk of the appellate division in
    23  the department in which the [alleged  misconduct  occurred]  record  was
    24  filed.    If  the  commission's findings and recommendations include any
    25  recommendation that any prosecutor should be  removed  or  retired,  the
    26  commission  shall simultaneously transmit its findings, recommendations,
    27  and record of its proceedings to the governor. Records of a  prosecuting
    28  agency provided by the agency to the commission pursuant to this article
    29  shall  not  be subject to disclosure by the commission under article six
    30  of the public officers law. [The prosecutor involved may  either  accept
    31  the  determination  of  the  commission  or  make written request to the
    32  presiding justices of the appellate division, within thirty  days  after
    33  receipt  of  such  determination,  for a review thereof by the presiding
    34  justices of the appellate division. If  the  commission  has  determined
    35  that  a  prosecutor  be  admonished  or  censured, and if the prosecutor
    36  accepts such determination or fails to request a review thereof  by  the
    37  presiding justices of the appellate division, the commission shall ther-
    38  eupon admonish or censure him or her in accordance with its findings. If
    39  the  commission  has recommended that a prosecutor be removed or retired
    40  and the prosecutor accepts such determination  or  fails  to  request  a
    41  review  thereof by the presiding justices of the appellate division, the
    42  presiding justices of the appellate division  shall  thereupon  transmit
    43  the  commission's findings to the governor who will independently deter-
    44  mine whether the prosecutor should be removed or retired.]
    45    8. [If the prosecutor requests a review of the  determination  of  the
    46  commission,  in  its  review  of  a determination of the commission, the
    47  presiding justices of the appellate division shall  review  the  commis-
    48  sion's  findings  of  fact  and  conclusions of law on the record of the
    49  proceedings upon which the commission's determination was based.   After
    50  such  review,  the  presiding  justices  of  the] The attorney grievance
    51  committee of the  appellate  division  that  receives  the  commission's
    52  report  may  accept  or  reject  the  [determined] recommended sanction;
    53  impose a different sanction [including admonition or censure,  recommend
    54  removal  or  retirement  for the reasons set forth in subdivision one of
    55  this section];  or  impose  no  sanction.  [However,  if  the  presiding
    56  justices of the appellate division recommend removal or retirement, they
        S. 8815                             5

     1  shall,  together  with the commission, transmit the entire record to the
     2  governor who will independently determine whether a prosecutor should be
     3  removed or retired.]
     4    9. [(a) The presiding justices of the appellate division may suspend a
     5  prosecutor  from  exercising the powers of his or her office while there
     6  is pending a determination by the commission for his or her  removal  or
     7  retirement, or while he or she is charged in this state with a felony by
     8  an indictment or an information filed pursuant to section six of article
     9  one  of the constitution. The suspension shall terminate upon conviction
    10  of a felony resulting in such prosecutor's disbarment pursuant to  para-
    11  graph  a  of subdivision four of section ninety of this chapter. If such
    12  conviction becomes final, he or she shall be removed from office.    The
    13  suspension  shall  be  terminated  upon  reversal  of the conviction and
    14  dismissal of the accusatory instrument.
    15    (b) Upon the recommendation of the commission or on  its  own  motion,
    16  the  presiding justices of the appellate division may suspend a prosecu-
    17  tor from office when he or she is charged with a crime punishable  as  a
    18  felony  under  the laws of this state, or any other crime which involves
    19  moral turpitude. The suspension shall terminate  upon  conviction  of  a
    20  felony resulting in such prosecutor's disbarment pursuant to paragraph a
    21  of  subdivision  four  of section ninety of this chapter. The suspension
    22  shall continue upon conviction of any other crime which  involves  moral
    23  turpitude  and,  if  such  conviction  becomes final, he or she shall be
    24  removed from office. The suspension shall be terminated upon reversal of
    25  the conviction and dismissal of the accusatory instrument.
    26    (c) A prosecutor  who  is  suspended  from  office  by  the  presiding
    27  justices  of  the  appellate  division  shall  receive his or her salary
    28  during such period of suspension, unless the court directs otherwise. If
    29  the court has so directed and such suspension is thereafter  terminated,
    30  the  presiding  justices of the appellate division may direct that he or
    31  she shall be paid his or her salary for such period of suspension.
    32    (d) Nothing in this subdivision  shall  prevent  the  commission  from
    33  determining  that  a prosecutor be admonished or censured or prevent the
    34  commission from recommending removal or retirement pursuant to  subdivi-
    35  sion seven of this section.
    36    10.] If during the course of or after an investigation or hearing, the
    37  commission  determines  that  the  complaint  or  any allegation thereof
    38  warrants action, other than in accordance with the provisions of  subdi-
    39  visions  seven  [through  nine]  and  eight  of this section, within the
    40  powers of:  (a) a person having  administrative  jurisdiction  over  the
    41  prosecutor involved in the complaint; or (b) [an] the attorney grievance
    42  committee  of  the  appellate  division  [of  the  supreme court] in the
    43  department where the prosecutor was admitted  to  practice;  or  (c)  [a
    44  presiding  justice of an appellate division of the supreme court; or (d)
    45  the chief judge of the court of appeals; or (e)] the  governor  pursuant
    46  to  subdivision  (b)  of  section  thirteen  of  article thirteen of the
    47  constitution; or [(f)] (d) an applicable district attorney's office  [or
    48  other  prosecuting agency], the commission shall refer such complaint or
    49  the appropriate allegations thereof and any evidence or material related
    50  thereto to such person, agency or court for such action as may be deemed
    51  proper or necessary.
    52    [11.] 10. The commission shall notify the complainant of its  disposi-
    53  tion of the complaint.
    54    [12.   In the event of removal from office of any prosecutor, pursuant
    55  to subdivision seven or eight or paragraph (a)  or  (b)  of  subdivision
        S. 8815                             6

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