Bill Text: NY A10805 | 2019-2020 | General Assembly | Amended
Bill Title: Relates to the state commission on prosecutorial conduct; provides that the commission shall investigate complaints and may make a recommendation to the governor that a prosecutor be removed; provides that the commission shall transmit its findings of fact and recommendations to the appellate division; provides that the appellate division may accept or reject such recommendations or impose a different sanction.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-07-22 - ordered to third reading rules cal.297 [A10805 Detail]
Download: New_York-2019-A10805-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 10805--A IN ASSEMBLY July 15, 2020 ___________ Introduced by COMMITTEE ON RULES -- (at request of M. of A. Perry) -- read once and referred to the Committee on Codes -- reported and referred to the Committee on Rules -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee AN ACT to amend the judiciary law, in relation to the state commission on prosecutorial conduct The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 499-a of the judiciary law, as amended by chapter 2 23 of the laws of 2019, is amended to read as follows: 3 § 499-a. Establishment of commission. There is hereby created within 4 the executive department a state commission of prosecutorial conduct. 5 The commission shall have the authority to review and investigate the 6 conduct of prosecutors upon the filing of a complaint with the commis- 7 sion to [determine] examine whether [said] a prosecutor or prosecutors 8 has committed conduct [as alleged departs from the applicable] in the 9 course of his or her official duties or under color of state law poten- 10 tially violative of statutes, the legal rights of private persons, 11 whether statutory, constitutional or otherwise; case law[,]; or court 12 rules, including, but not limited to the New York Rules of Professional 13 Conduct, 22 NYCRR 1200, or any subset thereof or successor thereto, 14 including but not limited to Rule 3.8 (Special Responsibilities of 15 Prosecutors and Other Government Lawyers). 16 § 2. Section 499-b of the judiciary law, as amended by chapter 23 of 17 the laws of 2019, is amended to read as follows: 18 § 499-b. Definitions. For the purposes of this article the following 19 terms have the following meanings: 20 1. "Commission" means the state commission on prosecutorial conduct. 21 2. "Prosecutor" means a district attorney or any assistant district 22 attorney of any county of the state in an action to exact any criminal 23 penalty, fine, sanction or forfeiture. 24 3. "Hearing" means a proceeding under subdivision four of section four 25 hundred ninety-nine-f of this article. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD16898-06-0A. 10805--A 2 1 4. "Member of the bar" means a person admitted to the practice of law 2 in this state for at least five years. 3 5. ["Presiding justices of the appellate division" shall mean, collec-4tively, the presiding justices of the appellate division of the supreme5court of each judicial department. The chief administrative judge shall,6by rule, establish an appropriate mechanism, not inconsistent with law,7for persons and entities interacting with the presiding justices of the8appellate division pursuant to this article to file papers and communi-9cate with such body.106.] "Retired judge" shall mean a former judge or justice of the 11 unified court system who was qualified as an attorney during such 12 service and served as such a judge or justice for at least five years. 13 § 3. Subdivision 6 of section 499-c of the judiciary law, as amended 14 by chapter 23 of the laws of 2019, is amended to read as follows: 15 6. For any action taken pursuant to subdivisions four through [nine] 16 seven of section four hundred ninety-nine-f or subdivision two of 17 section four hundred ninety-nine-e of this article, eight members of the 18 commission shall constitute a quorum of the commission and the concur- 19 rence of six members of the commission shall be necessary. Two members 20 of a three member panel of the commission shall constitute a quorum of 21 the panel and the concurrence of two members of the panel shall be 22 necessary for any action taken. 23 § 4. Section 499-f of the judiciary law, as amended by chapter 23 of 24 the laws of 2019, is amended to read as follows: 25 § 499-f. Complaint; investigation; hearing and disposition. 1. The 26 commission shall receive, initiate, investigate and hear complaints with 27 respect to the conduct[, qualifications, fitness to perform,] or 28 performance of official duties of any prosecutor[, and may determine29that a prosecutor be admonished, or censured]; and may make a recommen- 30 dation to the governor that a prosecutor be removed from office for 31 cause, for, including, but not limited to, misconduct in office, as 32 evidenced by his or her departure from his or her obligations under 33 appropriate statute, case law, and/or New York Rules of Professional 34 Conduct, 22 NYCRR 1200, or any subset thereof or successor thereto, 35 including but not limited to Rule 3.8 (Special Responsibilities of 36 Prosecutors and Other Government Lawyers), persistent failure to perform 37 his or her duties, conduct prejudicial to the administration of justice, 38 or that a prosecutor be retired for mental or physical disability 39 preventing the proper performance of his or her prosecutorial duties. A 40 complaint shall be in writing and signed by the complainant and, if 41 directed by the commission, shall be verified. Upon receipt of a 42 complaint (a) the commission shall conduct an investigation of the 43 complaint; or (b) the commission may dismiss the complaint if it deter- 44 mines that the complaint on its face lacks merit. If the complaint is 45 dismissed, the commission shall so notify the complainant. If the 46 commission shall have notified the prosecutor of the complaint, the 47 commission shall also notify the prosecutor of such dismissal. Pursuant 48 to paragraph a of subdivision four of section ninety of this chapter, 49 any person being an attorney and counselor-at-law who shall be convicted 50 of a felony as defined in paragraph e of subdivision four of section 51 ninety of this chapter, shall upon such conviction, cease to be any 52 attorney and counselor-at-law, or to be competent to practice law as 53 such. 54 2. The commission may, on its own motion, initiate an investigation of 55 a prosecutor with respect to his or her [qualifications,] conduct[,56fitness to perform] or the performance of his or her official duties.A. 10805--A 3 1 Prior to initiating any such investigation, the commission shall file as 2 part of its record a written complaint, signed by the administrator of 3 the commission, which complaint shall serve as the basis for such inves- 4 tigation. 5 3. In the course of an investigation, the commission may require the 6 appearance of the prosecutor involved before it, in which event the 7 prosecutor shall be notified in writing of his or her required appear- 8 ance, either personally, at least three days prior to such appearance, 9 or by certified mail, return receipt requested, at least five days prior 10 to such appearance. In either case a copy of the complaint shall be 11 served upon the prosecutor at the time of such notification. The prose- 12 cutor shall have the right to be represented by counsel during any and 13 all stages of the investigation in which his or her appearance is 14 required and to present evidentiary data and material relevant to the 15 complaint. A transcript shall be made and kept with respect to all 16 proceedings at which testimony or statements under oath of any party or 17 witness shall be taken, and the transcript of the prosecutor's testimony 18 shall be made available to the prosecutor without cost. Such transcript 19 shall be confidential except as otherwise permitted by section four 20 hundred ninety-nine-g of this article. 21 4. If in the course of an investigation, the commission determines 22 that a hearing is warranted it shall direct that a formal written 23 complaint signed and verified by the administrator be drawn and served 24 upon the prosecutor involved, either personally or by certified mail, 25 return receipt requested. The prosecutor shall file a written answer to 26 the complaint with the commission within twenty days of such service. 27 If, upon receipt of the answer, or upon expiration of the time to 28 answer, the commission shall direct that a hearing be held with respect 29 to the complaint, the prosecutor involved shall be notified in writing 30 of the date of the hearing either personally, at least twenty days prior 31 thereto, or by certified mail, return receipt requested, at least twen- 32 ty-two days prior thereto. Upon the written request of the prosecutor, 33 the commission shall, at least five days prior to the hearing or any 34 adjourned date thereof, make available to the prosecutor without cost 35 copies of all documents which the commission intends to present at such 36 hearing and any written statements made by witnesses who will be called 37 to give testimony by the commission. The commission shall, in any case, 38 make available to the prosecutor at least five days prior to the hearing 39 or any adjourned date thereof any exculpatory evidentiary data and mate- 40 rial relevant to the complaint. The failure of the commission to timely 41 furnish any documents, statements and/or exculpatory evidentiary data 42 and material provided for herein shall not affect the validity of any 43 proceedings before the commission provided that such failure is not 44 substantially prejudicial to the prosecutor. The complainant may be 45 notified of the hearing and unless he or she shall be subpoenaed as a 46 witness by the prosecutor, his or her presence thereat shall be within 47 the discretion of the commission. The hearing shall not be public unless 48 the prosecutor involved shall so demand in writing. At the hearing the 49 commission may take the testimony of witnesses and receive evidentiary 50 data and material relevant to the complaint. The prosecutor shall have 51 the right to be represented by counsel during any and all stages of the 52 hearing and shall have the right to call and cross-examine witnesses and 53 present evidentiary data and material relevant to the complaint. A tran- 54 script of the proceedings and of the testimony of witnesses at the hear- 55 ing shall be taken and kept with the records of the commission.A. 10805--A 4 1 5. Subject to the approval of the commission, the administrator and 2 the prosecutor may agree on a statement of facts and may stipulate in 3 writing that the hearing shall be waived. In such a case, the commission 4 shall [make its determination upon the pleadings and] rely upon the 5 agreed statement of facts in forming the commission's findings of fact. 6 6. If, after a formal written complaint has been served pursuant to 7 subdivision four of this section, or during the course of or after a 8 hearing, the commission determines that no further action is necessary, 9 the complaint shall be dismissed and the complainant and the prosecutor 10 shall be so notified in writing. 11 7. [After a hearing, the commission may determine that a prosecutor be12admonished or censured, or may recommend to the governor that a prosecu-13tor be removed from office for cause.] The commission shall transmit its 14 [written determination, together with its] findings of fact and [conclu-15sions of law] recommendations and the record of the proceedings upon 16 which [its determination is] such findings and recommendations are 17 based, to the [presiding justices of the] attorney grievance committee 18 of the appellate division [who] in the department where the prosecutor 19 was admitted to practice, which shall cause a copy thereof to be served 20 either personally or by certified mail, return receipt requested, on the 21 prosecutor involved. Upon completion of service, the [determination of22the commission, its] commission's findings and [conclusions] recommenda- 23 tions and the record of its proceedings shall be made public and shall 24 be made available for public inspection at the principal office of the 25 commission and at the office of the clerk of the appellate division in 26 the department in which the [alleged misconduct occurred] record was 27 filed. If the commission's findings and recommendations include any 28 recommendation that any prosecutor should be removed or retired, the 29 commission shall simultaneously transmit its findings, recommendations, 30 and record of its proceedings to the governor. Records of a prosecuting 31 agency provided by the agency to the commission pursuant to this article 32 shall not be subject to disclosure by the commission under article six 33 of the public officers law. [The prosecutor involved may either accept34the determination of the commission or make written request to the35presiding justices of the appellate division, within thirty days after36receipt of such determination, for a review thereof by the presiding37justices of the appellate division. If the commission has determined38that a prosecutor be admonished or censured, and if the prosecutor39accepts such determination or fails to request a review thereof by the40presiding justices of the appellate division, the commission shall ther-41eupon admonish or censure him or her in accordance with its findings. If42the commission has recommended that a prosecutor be removed or retired43and the prosecutor accepts such determination or fails to request a44review thereof by the presiding justices of the appellate division, the45presiding justices of the appellate division shall thereupon transmit46the commission's findings to the governor who will independently deter-47mine whether the prosecutor should be removed or retired.] 48 8. [If the prosecutor requests a review of the determination of the49commission, in its review of a determination of the commission, the50presiding justices of the appellate division shall review the commis-51sion's findings of fact and conclusions of law on the record of the52proceedings upon which the commission's determination was based. After53such review, the presiding justices of the] The attorney grievance 54 committee of the appellate division that receives the commission's 55 report may accept or reject the [determined] recommended sanction; 56 impose a different sanction [including admonition or censure, recommendA. 10805--A 5 1removal or retirement for the reasons set forth in subdivision one of2this section]; or impose no sanction. [However, if the presiding3justices of the appellate division recommend removal or retirement, they4shall, together with the commission, transmit the entire record to the5governor who will independently determine whether a prosecutor should be6removed or retired.] 7 9. [(a) The presiding justices of the appellate division may suspend a8prosecutor from exercising the powers of his or her office while there9is pending a determination by the commission for his or her removal or10retirement, or while he or she is charged in this state with a felony by11an indictment or an information filed pursuant to section six of article12one of the constitution. The suspension shall terminate upon conviction13of a felony resulting in such prosecutor's disbarment pursuant to para-14graph a of subdivision four of section ninety of this chapter. If such15conviction becomes final, he or she shall be removed from office. The16suspension shall be terminated upon reversal of the conviction and17dismissal of the accusatory instrument.18(b) Upon the recommendation of the commission or on its own motion,19the presiding justices of the appellate division may suspend a prosecu-20tor from office when he or she is charged with a crime punishable as a21felony under the laws of this state, or any other crime which involves22moral turpitude. The suspension shall terminate upon conviction of a23felony resulting in such prosecutor's disbarment pursuant to paragraph a24of subdivision four of section ninety of this chapter. The suspension25shall continue upon conviction of any other crime which involves moral26turpitude and, if such conviction becomes final, he or she shall be27removed from office. The suspension shall be terminated upon reversal of28the conviction and dismissal of the accusatory instrument.29(c) A prosecutor who is suspended from office by the presiding30justices of the appellate division shall receive his or her salary31during such period of suspension, unless the court directs otherwise. If32the court has so directed and such suspension is thereafter terminated,33the presiding justices of the appellate division may direct that he or34she shall be paid his or her salary for such period of suspension.35(d) Nothing in this subdivision shall prevent the commission from36determining that a prosecutor be admonished or censured or prevent the37commission from recommending removal or retirement pursuant to subdivi-38sion seven of this section.3910.] If during the course of or after an investigation or hearing, the 40 commission determines that the complaint or any allegation thereof 41 warrants action, other than in accordance with the provisions of subdi- 42 visions seven [through nine] and eight of this section, within the 43 powers of: (a) a person having administrative jurisdiction over the 44 prosecutor involved in the complaint; or (b) [an] the attorney grievance 45 committee of the appellate division [of the supreme court] in the 46 department where the prosecutor was admitted to practice; or (c) [a47presiding justice of an appellate division of the supreme court; or (d)48the chief judge of the court of appeals; or (e)] the governor pursuant 49 to subdivision (b) of section thirteen of article thirteen of the 50 constitution; or [(f)] (d) an applicable district attorney's office [or51other prosecuting agency], the commission shall refer such complaint or 52 the appropriate allegations thereof and any evidence or material related 53 thereto to such person, agency or court for such action as may be deemed 54 proper or necessary. 55 [11.] 10. The commission shall notify the complainant of its disposi- 56 tion of the complaint.A. 10805--A 6 1 [12. In the event of removal from office of any prosecutor, pursuant2to subdivision seven or eight or paragraph (a) or (b) of subdivision3nine of this section, a vacancy shall exist pursuant to article three of4the public officers law.] 5 § 5. Section 499-i of the judiciary law, as amended by chapter 23 of 6 the laws of 2019, is amended to read as follows: 7 § 499-i. Resignation not to divest commission [or presiding justices8of] and the appellate division of jurisdiction. The jurisdiction of the 9 [presiding justices of the] appellate division and the commission pursu- 10 ant to this article shall continue notwithstanding that a prosecutor 11 resigns from office after a recommendation by the commission that the 12 prosecutor be removed from office has been transmitted to the [presiding13justices of the appellate division] governor, or in any case in which 14 the commission's recommendation that a prosecutor should be removed from 15 office shall be transmitted to the [presiding justices of the appellate16division] governor within one hundred twenty days after receipt by the 17 chief administrator of the courts of the resignation of such prosecutor. 18 Any determination by the governor that a prosecutor who has resigned 19 should be removed from office shall render such prosecutor ineligible to 20 hold any other prosecutorial office. 21 § 6. Section 499-j of the judiciary law, as amended by chapter 23 of 22 the laws of 2019, is amended to read as follows: 23 § 499-j. Effect. [1.] The powers, duties, and functions of the state 24 commission on prosecutorial conduct shall not supersede the powers and 25 duties of the governor as outlined in section thirteen of article thir- 26 teen of the New York state constitution. 27 [2. Removal or retirement of a prosecutor pursuant to this article28shall be considered a removal from office pursuant to section thirty of29the public officers law.] 30 § 7. Legislative intent. It is hereby declared to be the intent of the 31 legislature that, if any clause, sentence, paragraph, subdivision, 32 section or part of article 15-A of the judiciary law shall be adjudged 33 by any court of competent jurisdiction to be invalid, that such article 34 would have been enacted even if such invalid provisions has not been 35 included therein. 36 § 8. Severability. If any clause, sentence, paragraph, subdivision, 37 section or part of this act shall be adjudged by any court of competent 38 jurisdiction to be invalid, such judgment shall not affect, impair, or 39 invalidate the remainder thereof, but shall be confined in its operation 40 to the clause, sentence, paragraph, subdivision, section or part thereof 41 directly involved in the controversy in which such judgment shall have 42 been rendered. It is hereby declared to be the intent of the legislature 43 that this act would have been enacted even if such invalid provisions 44 had not been included herein. 45 § 9. This act shall take effect immediately.