Bill Text: NY S08815 | 2019-2020 | General Assembly | Introduced
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
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. LBD16898-07-0S. 8815 2 1 5. ["Presiding justices of the appellate division" shall mean, collec-2tively, the presiding justices of the appellate division of the supreme3court of each judicial department. The chief administrative judge shall,4by rule, establish an appropriate mechanism, not inconsistent with law,5for persons and entities interacting with the presiding justices of the6appellate division pursuant to this article to file papers and communi-7cate with such body.86.] "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 determine27that 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[,54fitness 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 ofS. 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 commissionS. 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 be9admonished or censured, or may recommend to the governor that a prosecu-10tor be removed from office for cause.] The commission shall transmit its 11 [written determination, together with its] findings of fact and [conclu-12sions 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 of19the 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 accept31the determination of the commission or make written request to the32presiding justices of the appellate division, within thirty days after33receipt of such determination, for a review thereof by the presiding34justices of the appellate division. If the commission has determined35that a prosecutor be admonished or censured, and if the prosecutor36accepts such determination or fails to request a review thereof by the37presiding justices of the appellate division, the commission shall ther-38eupon admonish or censure him or her in accordance with its findings. If39the commission has recommended that a prosecutor be removed or retired40and the prosecutor accepts such determination or fails to request a41review thereof by the presiding justices of the appellate division, the42presiding justices of the appellate division shall thereupon transmit43the commission's findings to the governor who will independently deter-44mine whether the prosecutor should be removed or retired.] 45 8. [If the prosecutor requests a review of the determination of the46commission, in its review of a determination of the commission, the47presiding justices of the appellate division shall review the commis-48sion's findings of fact and conclusions of law on the record of the49proceedings upon which the commission's determination was based. After50such 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, recommend54removal or retirement for the reasons set forth in subdivision one of55this section]; or impose no sanction. [However, if the presiding56justices of the appellate division recommend removal or retirement, theyS. 8815 5 1shall, together with the commission, transmit the entire record to the2governor who will independently determine whether a prosecutor should be3removed or retired.] 4 9. [(a) The presiding justices of the appellate division may suspend a5prosecutor from exercising the powers of his or her office while there6is pending a determination by the commission for his or her removal or7retirement, or while he or she is charged in this state with a felony by8an indictment or an information filed pursuant to section six of article9one of the constitution. The suspension shall terminate upon conviction10of a felony resulting in such prosecutor's disbarment pursuant to para-11graph a of subdivision four of section ninety of this chapter. If such12conviction becomes final, he or she shall be removed from office. The13suspension shall be terminated upon reversal of the conviction and14dismissal of the accusatory instrument.15(b) Upon the recommendation of the commission or on its own motion,16the presiding justices of the appellate division may suspend a prosecu-17tor from office when he or she is charged with a crime punishable as a18felony under the laws of this state, or any other crime which involves19moral turpitude. The suspension shall terminate upon conviction of a20felony resulting in such prosecutor's disbarment pursuant to paragraph a21of subdivision four of section ninety of this chapter. The suspension22shall continue upon conviction of any other crime which involves moral23turpitude and, if such conviction becomes final, he or she shall be24removed from office. The suspension shall be terminated upon reversal of25the conviction and dismissal of the accusatory instrument.26(c) A prosecutor who is suspended from office by the presiding27justices of the appellate division shall receive his or her salary28during such period of suspension, unless the court directs otherwise. If29the court has so directed and such suspension is thereafter terminated,30the presiding justices of the appellate division may direct that he or31she shall be paid his or her salary for such period of suspension.32(d) Nothing in this subdivision shall prevent the commission from33determining that a prosecutor be admonished or censured or prevent the34commission from recommending removal or retirement pursuant to subdivi-35sion seven of this section.3610.] 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) [a44presiding justice of an appellate division of the supreme court; or (d)45the 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 [or48other 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, pursuant55to subdivision seven or eight or paragraph (a) or (b) of subdivisionS. 8815 6 1nine of this section, a vacancy shall exist pursuant to article three of2the 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 justices6of] 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 [presiding11justices 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 appellate14division] 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 article26shall be considered a removal from office pursuant to section thirty of27the 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.