STATE OF NEW YORK
        ________________________________________________________________________

                                          3317

                               2021-2022 Regular Sessions

                    IN SENATE

                                    January 28, 2021
                                       ___________

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

        AN ACT to amend the executive law and the  criminal  procedure  law,  in
          relation to establishing the office of special investigation

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

     1    Section 1. The executive law is amended by adding a new  section  70-c
     2  to read as follows:
     3    §  70-c.  Office  of special investigation.   1. There shall be estab-
     4  lished within the department of law an office of  special  investigation
     5  which  shall  have  the  power  to investigate and prosecute any alleged
     6  criminal offense or offenses committed by a police officer as defined in
     7  subdivision thirty-four of section 1.20 of the criminal  procedure  law,
     8  or  a  peace  officer  as defined in subdivision thirty-three of section
     9  1.20 of the criminal procedure law, concerning the death of  any  person
    10  that  resulted  from or potentially resulted from injuries that occurred
    11  or may have occurred as a result of any encounter with such police offi-
    12  cer or peace officer. The office shall conduct such an investigation and
    13  may conduct such a prosecution upon its written  finding  that  such  is
    14  appropriate  because:  (i)  there is a lack of alternative prosecutorial
    15  resources to adequately investigate and prosecute such criminal  offense
    16  or  offenses;  (ii)  such investigation and prosecution cannot be effec-
    17  tively conducted by the district attorney  of  the  county  wherein  the
    18  offense  or  a  portion thereof is alleged to have been committed; (iii)
    19  the district attorney has failed or refused to effectively conduct  such
    20  investigation and prosecution; or (iv) the exercise of such jurisdiction
    21  is  necessary  to  ensure  the  confidence of the public in the criminal
    22  justice system and judicial system. The office of special  investigation
    23  within  the  department  of  law  shall be headed by the deputy attorney
    24  general appointed by the attorney general pursuant to subdivision  three
    25  of this section.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07065-01-1

        S. 3317                             2

     1    2. In all proceedings pursuant to subdivision one of this section, the
     2  deputy attorney general, appointed pursuant to subdivision three of this
     3  section, may appear in person or by any assistant attorney general he or
     4  she  may designate before any court or grand jury in the state and exer-
     5  cise  all  of  the  powers and perform all of the duties with respect to
     6  such actions or proceedings which the district attorney would  otherwise
     7  be authorized or required to exercise or perform.
     8    3.  Notwithstanding  any  other provision of law, the attorney general
     9  shall, without civil service examination, appoint and employ, fix his or
    10  her compensation, and at his or her pleasure remove, a  deputy  attorney
    11  general  in  charge of the office of special investigation. The attorney
    12  general may, and without civil service examination, appoint and  employ,
    13  and at pleasure remove, such assistant deputies, investigators and other
    14  persons  as  he  or  she deems necessary, determine their duties and fix
    15  their compensation.
    16    4. (a) Where an investigation or prosecution of the type described  in
    17  subdivision  one  of this section involves acts that appear to have been
    18  engaged in by a police officer or peace officer employed by the state of
    19  New York, the attorney general shall promptly apply to a superior  court
    20  in  the county in which such acts allegedly occurred for the appointment
    21  of a special assistant attorney general to investigate  and  potentially
    22  prosecute  such matter. Notwithstanding the provisions of any other law,
    23  such court shall thereupon appoint a qualified attorney at law having an
    24  office in or residing  in  such  county  or  an  adjoining  county,  not
    25  employed  as  a district attorney or assistant district attorney, to act
    26  as a special assistant attorney general with respect to such matter,  at
    27  a reasonable and appropriate hourly rate to be set by such court.
    28    (b)  The  attorney general shall promptly notify the state comptroller
    29  and the court when such appointment has been made and accepted  by  such
    30  attorney.    Reasonable  fees  for attorneys and investigation and liti-
    31  gation expenses shall be paid by the state to such private counsel  from
    32  time  to  time  during  the pendency of the investigation and any prose-
    33  cution and appeal, upon the audit and warrant of  the  comptroller.  Any
    34  dispute  with  respect to the payment of such fees and expenses shall be
    35  resolved by the court upon motion or by way of a special proceeding.
    36    (c) The deputy attorney general appointed pursuant to this subdivision
    37  may appear in person or by any special assistant deputy attorney general
    38  he or she may designate before any court or grand jury in the state  and
    39  exercise all of the powers and perform all of the duties with respect to
    40  such  actions or proceedings which the district attorney would otherwise
    41  be authorized or required to exercise or perform.
    42    § 2. Paragraph (d) of subdivision 3 of section 190.25 of the  criminal
    43  procedure  law  is amended and a new paragraph (a-1) is added to read as
    44  follows:
    45    (a-1) a judge or justice of the superior court;
    46    (d) An interpreter. Upon request of the grand jury or the  court,  the
    47  prosecutor must provide an interpreter to interpret the testimony of any
    48  witness who does not speak the English language well enough to be readi-
    49  ly  understood.  Such  interpreter must, if he or she has not previously
    50  taken the constitutional oath of office, first take an oath  before  the
    51  grand jury that he or she will faithfully interpret the testimony of the
    52  witness  and  that  he  or  she will keep secret all matters before such
    53  grand jury within his or her knowledge;
    54    § 3. Subdivision 6 of section 190.25 of the criminal procedure law  is
    55  amended and a new subdivision 4-a is added to read as follows:

        S. 3317                             3

     1    4-a.  (a)  Notwithstanding  the provisions of subdivision four of this
     2  section, when, following submission to a grand jury of a criminal charge
     3  or charges, the grand jury dismisses all charges  presented  or  directs
     4  the  district  attorney to file in a local criminal court a prosecutor's
     5  information  charging  an  offense  other  than a felony, as provided in
     6  subdivision one of section 190.70 of this article, an application may be
     7  made to the superior court for  disclosure  of  the  following  material
     8  relating to the proceedings before such grand jury:
     9    (i) the criminal charge or charges submitted;
    10    (ii) the legal instructions provided to the grand jury;
    11    (iii)  the  testimony of all public servants who testified in an offi-
    12  cial capacity before the grand jury and  of  all  persons  who  provided
    13  expert testimony; and
    14    (iv) the testimony of all other persons who testified before the grand
    15  jury, redacted as necessary to prevent discovery of their names and such
    16  other  personal  data  or  information that may reveal or help to reveal
    17  their identities.
    18    (b) The application specified in paragraph (a) of this subdivision may
    19  be made by any person, must be in writing and, except where made by  the
    20  people,  must  be  upon  notice to the people. The court shall direct or
    21  provide notice to any other appropriate person  or  agency.  Where  more
    22  than  one  application is made hereunder in relation to such a dismissal
    23  or direction, the court may consolidate such applications and  determine
    24  them together. When no application hereunder is made, the superior court
    25  may  order  disclosure on its own motion as provided in paragraph (c) of
    26  this subdivision at any time following  notice  to  the  people  and  an
    27  opportunity  to be heard and reasonable efforts to notify and provide an
    28  opportunity to be heard to any other appropriate person or agency.
    29    (c) Upon an application as provided in paragraph (a) of this  subdivi-
    30  sion  or  on  the court's own motion, the court, after providing persons
    31  given notice an opportunity to be heard, shall determine whether:
    32    (i) a significant number of members of the general public in the coun-
    33  ty in which the grand jury was drawn and impaneled are likely aware that
    34  a criminal investigation had  been  conducted  in  connection  with  the
    35  subject matter of the grand jury proceeding; and
    36    (ii)  a  significant  number  of members of the general public in such
    37  county are likely aware of the identity of the subject against whom  the
    38  criminal  charge  specified  in  paragraph  (a)  of this subdivision was
    39  submitted to a grand jury, or such subject has consented to such disclo-
    40  sure; and
    41    (iii) there is significant public interest in disclosure.
    42    Where the court is satisfied that all three of these factors are pres-
    43  ent, and except as provided in paragraph (d) of  this  subdivision,  the
    44  court shall direct the district attorney to disclose the items specified
    45  in paragraph (a) of this subdivision.
    46    (d)  Notwithstanding  any  other  provisions  of  this subdivision, on
    47  application of the district attorney or any interested person, or on its
    48  own motion, the court shall limit disclosure of the items  specified  in
    49  paragraph  (a)  of  this  subdivision, in whole or part, where the court
    50  determines there is a reasonable likelihood  that  such  disclosure  may
    51  lead to discovery of the identity of a witness who is not a public serv-
    52  ant or expert witness, imperil the health or safety of a grand juror who
    53  participated  in  the  proceeding  or  a witness who appeared before the
    54  grand jury, jeopardize an identified current or future criminal investi-
    55  gation, create a specific threat to public safety, or despite the inter-

        S. 3317                             4

     1  ests reflected by this subdivision  is  contrary  to  the  interests  of
     2  justice.
     3    (e) Where a court determines not to direct disclosure pursuant to this
     4  subdivision,  it  shall do so in a written order dismissing the applica-
     5  tion therefor that shall explain with specificity, to the extent practi-
     6  cable, the basis for its determination.
     7    6. (a) The legal advisors of the grand jury  are  the  court  and  the
     8  district  attorney,  and  the  grand  jury may not seek or receive legal
     9  advice from any other source.  Where necessary or appropriate, the court
    10  or the district attorney, or both, must instruct the grand jury concern-
    11  ing the law with respect to its duties or any matter before it, and such
    12  instructions must be recorded in the minutes.
    13    (b) Notwithstanding paragraph (a) of this subdivision,  or  any  other
    14  law to the contrary, in any proceeding before a grand jury that involves
    15  the  submission  of  a  criminal  charge  or charges against a person or
    16  persons for an act or acts that occurred at a time when such person  was
    17  a  police officer or peace officer, and that concern the death of any of
    18  any person that resulted from or potentially resulted from injuries that
    19  occurred or may have occurred as a result of  any  encounter  with  such
    20  police  officer  or  peace officer, the court, after consultation on the
    21  record with the district attorney, shall instruct the grand jury  as  to
    22  the criminal charge or charges to be submitted and the law applicable to
    23  such charges and to the matters before such grand jury.  Thereafter, any
    24  questions,  requests for exhibits, requests for readback of testimony or
    25  other requests from the grand jury or a member thereof shall be provided
    26  to the court, and addressed by  the  court  after  consultation  on  the
    27  record with the district attorney.
    28    (c)  Notwithstanding the provisions of subdivisions four and four-a of
    29  this section, following final action by the grand jury on the charge  or
    30  charges  submitted  pursuant  to  paragraph (b) of this subdivision, the
    31  court shall make such legal instructions and charges submitted  to  such
    32  grand  jury  available to the public on request, provided that the names
    33  of witnesses and any information  that  would  identify  such  witnesses
    34  included  in  such  legal instructions or charges shall be redacted when
    35  the court determines, in a written order released  to  the  public,  and
    36  issued  after  notice to the people and the requester and an opportunity
    37  to be heard and reasonable efforts to notify and provide an  opportunity
    38  to  be  heard to any other appropriate person or agency, that there is a
    39  reasonable likelihood that public  release  of  such  information  would
    40  endanger any individual.
    41    §  4.  This  act shall take effect on the thirtieth day after it shall
    42  have become a law.