S T A T E   O F   N E W   Y O R K
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                                 6509--A

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             March 25, 2015
                               ___________

Introduced  by  M. of A. WRIGHT, AUBRY, MOSLEY -- read once and referred
  to the Committee on  Codes  --  committee  discharged,  bill  amended,
  ordered reprinted as amended and recommitted to said committee

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:

  Section  1.  The executive law is amended by adding a new section 70-b
to read as follows:
  S 70-B. OFFICE OF SPECIAL INVESTIGATION.   1. THERE  SHALL  BE  ESTAB-
LISHED  WITHIN  THE DEPARTMENT OF LAW AN OFFICE OF SPECIAL INVESTIGATION
WHICH SHALL HAVE THE POWER TO  INVESTIGATE  AND  PROSECUTE  ANY  ALLEGED
CRIMINAL OFFENSE OR OFFENSES COMMITTED BY A POLICE OFFICER AS DEFINED IN
SUBDIVISION  THIRTY-FOUR  OF SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW,
OR A PEACE OFFICER AS DEFINED IN  SUBDIVISION  THIRTY-THREE  OF  SECTION
1.20  OF  THE CRIMINAL PROCEDURE LAW, CONCERNING THE DEATH OF ANY PERSON
THAT RESULTED FROM OR POTENTIALLY RESULTED FROM INJURIES  THAT  OCCURRED
OR MAY HAVE OCCURRED AS A RESULT OF ANY ENCOUNTER WITH SUCH POLICE OFFI-
CER OR PEACE OFFICER. THE OFFICE SHALL CONDUCT SUCH AN INVESTIGATION AND
MAY  CONDUCT  SUCH  A  PROSECUTION UPON ITS WRITTEN FINDING THAT SUCH IS
APPROPRIATE BECAUSE: (I) THERE IS A LACK  OF  ALTERNATIVE  PROSECUTORIAL
RESOURCES  TO ADEQUATELY INVESTIGATE AND PROSECUTE SUCH CRIMINAL OFFENSE
OR OFFENSES; (II) SUCH INVESTIGATION AND PROSECUTION  CANNOT  BE  EFFEC-
TIVELY  CONDUCTED  BY  THE  DISTRICT  ATTORNEY OF THE COUNTY WHEREIN THE
OFFENSE OR A PORTION THEREOF IS ALLEGED TO HAVE  BEEN  COMMITTED;  (III)
THE  DISTRICT ATTORNEY HAS FAILED OR REFUSED TO EFFECTIVELY CONDUCT SUCH
INVESTIGATION AND PROSECUTION; OR (IV) THE EXERCISE OF SUCH JURISDICTION
IS NECESSARY TO ENSURE THE CONFIDENCE OF  THE  PUBLIC  IN  THE  CRIMINAL
JUSTICE  SYSTEM AND JUDICIAL SYSTEM. THE OFFICE OF SPECIAL INVESTIGATION
WITHIN THE DEPARTMENT OF LAW SHALL BE  HEADED  BY  THE  DEPUTY  ATTORNEY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10165-05-5

              

A. 6509--A                          2

GENERAL  APPOINTED BY THE ATTORNEY GENERAL PURSUANT TO SUBDIVISION THREE
OF THIS SECTION.
  2. IN ALL PROCEEDINGS PURSUANT TO SUBDIVISION ONE OF THIS SECTION, THE
DEPUTY ATTORNEY GENERAL, APPOINTED PURSUANT TO SUBDIVISION THREE OF THIS
SECTION, MAY APPEAR IN PERSON OR BY ANY ASSISTANT ATTORNEY GENERAL HE OR
SHE  MAY DESIGNATE BEFORE ANY COURT OR GRAND JURY IN THE STATE AND EXER-
CISE ALL OF THE POWERS AND PERFORM ALL OF THE  DUTIES  WITH  RESPECT  TO
SUCH  ACTIONS OR PROCEEDINGS WHICH THE DISTRICT ATTORNEY WOULD OTHERWISE
BE AUTHORIZED OR REQUIRED TO EXERCISE OR PERFORM.
  3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW,  THE  ATTORNEY  GENERAL
SHALL, WITHOUT CIVIL SERVICE EXAMINATION, APPOINT AND EMPLOY, FIX HIS OR
HER  COMPENSATION,  AND AT HIS OR HER PLEASURE REMOVE, A DEPUTY ATTORNEY
GENERAL IN CHARGE OF THE OFFICE OF SPECIAL INVESTIGATION.  THE  ATTORNEY
GENERAL  MAY, AND WITHOUT CIVIL SERVICE EXAMINATION, APPOINT AND EMPLOY,
AND AT PLEASURE REMOVE, SUCH ASSISTANT DEPUTIES, INVESTIGATORS AND OTHER
PERSONS AS HE OR SHE DEEMS NECESSARY, DETERMINE  THEIR  DUTIES  AND  FIX
THEIR COMPENSATION.
  4.  (A) WHERE AN INVESTIGATION OR PROSECUTION OF THE TYPE DESCRIBED IN
SUBDIVISION ONE OF THIS SECTION INVOLVES ACTS THAT APPEAR TO  HAVE  BEEN
ENGAGED IN BY A POLICE OFFICER OR PEACE OFFICER EMPLOYED BY THE STATE OF
NEW  YORK, THE ATTORNEY GENERAL SHALL PROMPTLY APPLY TO A SUPERIOR COURT
IN THE COUNTY IN WHICH SUCH ACTS ALLEGEDLY OCCURRED FOR THE  APPOINTMENT
OF  A  SPECIAL ASSISTANT ATTORNEY GENERAL TO INVESTIGATE AND POTENTIALLY
PROSECUTE SUCH MATTER. NOTWITHSTANDING THE PROVISIONS OF ANY OTHER  LAW,
SUCH COURT SHALL THEREUPON APPOINT A QUALIFIED ATTORNEY AT LAW HAVING AN
OFFICE  IN  OR  RESIDING  IN  SUCH  COUNTY  OR  AN ADJOINING COUNTY, NOT
EMPLOYED AS A DISTRICT ATTORNEY OR ASSISTANT DISTRICT ATTORNEY,  TO  ACT
AS  A SPECIAL ASSISTANT ATTORNEY GENERAL WITH RESPECT TO SUCH MATTER, AT
A REASONABLE AND APPROPRIATE HOURLY RATE TO BE SET BY SUCH COURT.
  (B) THE ATTORNEY GENERAL SHALL PROMPTLY NOTIFY THE  STATE  COMPTROLLER
AND  THE  COURT WHEN SUCH APPOINTMENT HAS BEEN MADE AND ACCEPTED BY SUCH
ATTORNEY.  REASONABLE FEES FOR ATTORNEYS  AND  INVESTIGATION  AND  LITI-
GATION  EXPENSES SHALL BE PAID BY THE STATE TO SUCH PRIVATE COUNSEL FROM
TIME TO TIME DURING THE PENDENCY OF THE  INVESTIGATION  AND  ANY  PROSE-
CUTION  AND  APPEAL,  UPON THE AUDIT AND WARRANT OF THE COMPTROLLER. ANY
DISPUTE WITH RESPECT TO THE PAYMENT OF SUCH FEES AND EXPENSES  SHALL  BE
RESOLVED BY THE COURT UPON MOTION OR BY WAY OF A SPECIAL PROCEEDING.
  (C) THE DEPUTY ATTORNEY GENERAL APPOINTED PURSUANT TO THIS SUBDIVISION
MAY APPEAR IN PERSON OR BY ANY SPECIAL ASSISTANT DEPUTY ATTORNEY GENERAL
HE  OR SHE MAY DESIGNATE BEFORE ANY COURT OR GRAND JURY IN THE STATE AND
EXERCISE ALL OF THE POWERS AND PERFORM ALL OF THE DUTIES WITH RESPECT TO
SUCH ACTIONS OR PROCEEDINGS WHICH THE DISTRICT ATTORNEY WOULD  OTHERWISE
BE AUTHORIZED OR REQUIRED TO EXERCISE OR PERFORM.
  S  2. Paragraph (d) of subdivision 3 of section 190.25 of the criminal
procedure law is amended and a new paragraph (a-1) is added to  read  as
follows:
  (A-1) A JUDGE OR JUSTICE OF THE SUPERIOR COURT;
  (d)  An  interpreter. Upon request of the grand jury OR THE COURT, the
prosecutor must provide an interpreter to interpret the testimony of any
witness who does not speak the English language well enough to be readi-
ly understood. Such interpreter must, if he OR SHE  has  not  previously
taken  the  constitutional oath of office, first take an oath before the
grand jury that he OR SHE will faithfully interpret the testimony of the
witness and that he OR SHE will keep  secret  all  matters  before  such
grand jury within his OR HER knowledge;

A. 6509--A                          3

  S  3. Subdivision 6 of section 190.25 of the criminal procedure law is
amended and a new subdivision 4-a is added to read as follows:
  4-A.  (A)  NOTWITHSTANDING  THE PROVISIONS OF SUBDIVISION FOUR OF THIS
SECTION, WHEN, FOLLOWING SUBMISSION TO A GRAND JURY OF A CRIMINAL CHARGE
OR CHARGES, THE GRAND JURY DISMISSES ALL CHARGES  PRESENTED  OR  DIRECTS
THE  DISTRICT  ATTORNEY TO FILE IN A LOCAL CRIMINAL COURT A PROSECUTOR'S
INFORMATION CHARGING AN OFFENSE OTHER THAN  A  FELONY,  AS  PROVIDED  IN
SUBDIVISION ONE OF SECTION 190.70 OF THIS ARTICLE, AN APPLICATION MAY BE
MADE  TO  THE  SUPERIOR  COURT  FOR DISCLOSURE OF THE FOLLOWING MATERIAL
RELATING TO THE PROCEEDINGS BEFORE SUCH GRAND JURY:
  (I) THE CRIMINAL CHARGE OR CHARGES SUBMITTED;
  (II) THE LEGAL INSTRUCTIONS PROVIDED TO THE GRAND JURY;
  (III) THE TESTIMONY OF ALL PUBLIC SERVANTS WHO TESTIFIED IN  AN  OFFI-
CIAL  CAPACITY  BEFORE  THE  GRAND  JURY AND OF ALL PERSONS WHO PROVIDED
EXPERT TESTIMONY; AND
  (IV) THE TESTIMONY OF ALL OTHER PERSONS WHO TESTIFIED BEFORE THE GRAND
JURY, REDACTED AS NECESSARY TO PREVENT DISCOVERY OF THEIR NAMES AND SUCH
OTHER PERSONAL DATA OR INFORMATION THAT MAY REVEAL  OR  HELP  TO  REVEAL
THEIR IDENTITIES.
  (B) THE APPLICATION SPECIFIED IN PARAGRAPH (A) OF THIS SUBDIVISION MAY
BE  MADE BY ANY PERSON, MUST BE IN WRITING AND, EXCEPT WHERE MADE BY THE
PEOPLE, MUST BE UPON NOTICE TO THE PEOPLE. THE  COURT  SHALL  DIRECT  OR
PROVIDE  NOTICE  TO  ANY  OTHER APPROPRIATE PERSON OR AGENCY. WHERE MORE
THAN ONE APPLICATION IS MADE HEREUNDER IN RELATION TO SUCH  A  DISMISSAL
OR  DIRECTION, THE COURT MAY CONSOLIDATE SUCH APPLICATIONS AND DETERMINE
THEM TOGETHER. WHEN NO APPLICATION HEREUNDER IS MADE, THE SUPERIOR COURT
MAY ORDER DISCLOSURE ON ITS OWN MOTION AS PROVIDED IN PARAGRAPH  (C)  OF
THIS  SUBDIVISION  AT  ANY  TIME  FOLLOWING  NOTICE TO THE PEOPLE AND AN
OPPORTUNITY TO BE HEARD AND REASONABLE EFFORTS TO NOTIFY AND PROVIDE  AN
OPPORTUNITY TO BE HEARD TO ANY OTHER APPROPRIATE PERSON OR AGENCY.
  (C)  UPON AN APPLICATION AS PROVIDED IN PARAGRAPH (A) OF THIS SUBDIVI-
SION OR ON THE COURT'S OWN MOTION, THE COURT,  AFTER  PROVIDING  PERSONS
GIVEN NOTICE AN OPPORTUNITY TO BE HEARD, SHALL DETERMINE WHETHER:
  (I) A SIGNIFICANT NUMBER OF MEMBERS OF THE GENERAL PUBLIC IN THE COUN-
TY IN WHICH THE GRAND JURY WAS DRAWN AND IMPANELED ARE LIKELY AWARE THAT
A  CRIMINAL  INVESTIGATION  HAD  BEEN  CONDUCTED  IN CONNECTION WITH THE
SUBJECT MATTER OF THE GRAND JURY PROCEEDING; AND
  (II) A SIGNIFICANT NUMBER OF MEMBERS OF THE  GENERAL  PUBLIC  IN  SUCH
COUNTY  ARE LIKELY AWARE OF THE IDENTITY OF THE SUBJECT AGAINST WHOM THE
CRIMINAL CHARGE SPECIFIED IN  PARAGRAPH  (A)  OF  THIS  SUBDIVISION  WAS
SUBMITTED TO A GRAND JURY, OR SUCH SUBJECT HAS CONSENTED TO SUCH DISCLO-
SURE; AND
  (III) THERE IS SIGNIFICANT PUBLIC INTEREST IN DISCLOSURE.
  WHERE THE COURT IS SATISFIED THAT ALL THREE OF THESE FACTORS ARE PRES-
ENT,  AND  EXCEPT  AS PROVIDED IN PARAGRAPH (D) OF THIS SUBDIVISION, THE
COURT SHALL DIRECT THE DISTRICT ATTORNEY TO DISCLOSE THE ITEMS SPECIFIED
IN PARAGRAPH (A) OF THIS SUBDIVISION.
  (D) NOTWITHSTANDING ANY  OTHER  PROVISIONS  OF  THIS  SUBDIVISION,  ON
APPLICATION OF THE DISTRICT ATTORNEY OR ANY INTERESTED PERSON, OR ON ITS
OWN  MOTION,  THE COURT SHALL LIMIT DISCLOSURE OF THE ITEMS SPECIFIED IN
PARAGRAPH (A) OF THIS SUBDIVISION, IN WHOLE OR  PART,  WHERE  THE  COURT
DETERMINES  THERE  IS  A  REASONABLE LIKELIHOOD THAT SUCH DISCLOSURE MAY
LEAD TO DISCOVERY OF THE IDENTITY OF A WITNESS WHO IS NOT A PUBLIC SERV-
ANT OR EXPERT WITNESS, IMPERIL THE HEALTH OR SAFETY OF A GRAND JUROR WHO
PARTICIPATED IN THE PROCEEDING OR A  WITNESS  WHO  APPEARED  BEFORE  THE
GRAND JURY, JEOPARDIZE AN IDENTIFIED CURRENT OR FUTURE CRIMINAL INVESTI-

A. 6509--A                          4

GATION, CREATE A SPECIFIC THREAT TO PUBLIC SAFETY, OR DESPITE THE INTER-
ESTS  REFLECTED  BY  THIS  SUBDIVISION  IS  CONTRARY TO THE INTERESTS OF
JUSTICE.
  (E) WHERE A COURT DETERMINES NOT TO DIRECT DISCLOSURE PURSUANT TO THIS
SUBDIVISION,  IT  SHALL DO SO IN A WRITTEN ORDER DISMISSING THE APPLICA-
TION THEREFOR THAT SHALL EXPLAIN WITH SPECIFICITY, TO THE EXTENT PRACTI-
CABLE, THE BASIS FOR ITS DETERMINATION.
  6. (A) The legal advisors of the grand jury  are  the  court  and  the
district  attorney,  and  the  grand  jury may not seek or receive legal
advice from any other source.  Where necessary or appropriate, the court
or the district attorney, or both, must instruct the grand jury concern-
ing the law with respect to its duties or any matter before it, and such
instructions must be recorded in the minutes.
  (B) NOTWITHSTANDING PARAGRAPH (A) OF THIS SUBDIVISION,  OR  ANY  OTHER
LAW TO THE CONTRARY, IN ANY PROCEEDING BEFORE A GRAND JURY THAT INVOLVES
THE  SUBMISSION  OF  A  CRIMINAL  CHARGE  OR CHARGES AGAINST A PERSON OR
PERSONS FOR AN ACT OR ACTS THAT OCCURRED AT A TIME WHEN SUCH PERSON  WAS
A  POLICE OFFICER OR PEACE OFFICER, AND THAT CONCERN THE DEATH OF ANY OF
ANY PERSON THAT RESULTED FROM OR POTENTIALLY RESULTED FROM INJURIES THAT
OCCURRED OR MAY HAVE OCCURRED AS A RESULT OF  ANY  ENCOUNTER  WITH  SUCH
POLICE  OFFICER  OR  PEACE OFFICER, THE COURT, AFTER CONSULTATION ON THE
RECORD WITH THE DISTRICT ATTORNEY, SHALL INSTRUCT THE GRAND JURY  AS  TO
THE CRIMINAL CHARGE OR CHARGES TO BE SUBMITTED AND THE LAW APPLICABLE TO
SUCH CHARGES AND TO THE MATTERS BEFORE SUCH GRAND JURY.  THEREAFTER, ANY
QUESTIONS,  REQUESTS FOR EXHIBITS, REQUESTS FOR READBACK OF TESTIMONY OR
OTHER REQUESTS FROM THE GRAND JURY OR A MEMBER THEREOF SHALL BE PROVIDED
TO THE COURT, AND ADDRESSED BY  THE  COURT  AFTER  CONSULTATION  ON  THE
RECORD WITH THE DISTRICT ATTORNEY.
  (C)  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISIONS FOUR AND FOUR-A OF
THIS SECTION, FOLLOWING FINAL ACTION BY THE GRAND JURY ON THE CHARGE  OR
CHARGES  SUBMITTED  PURSUANT TO PARAGRAPH (B) OF THIS SECTION, THE COURT
SHALL MAKE SUCH LEGAL INSTRUCTIONS AND CHARGES SUBMITTED TO  SUCH  GRAND
JURY  AVAILABLE  TO  THE  PUBLIC  ON REQUEST, PROVIDED THAT THE NAMES OF
WITNESSES  AND  ANY  INFORMATION  THAT  WOULD  IDENTIFY  SUCH  WITNESSES
INCLUDED  IN  SUCH  LEGAL INSTRUCTIONS OR CHARGES SHALL BE REDACTED WHEN
THE COURT DETERMINES, IN A WRITTEN ORDER RELEASED  TO  THE  PUBLIC,  AND
ISSUED  AFTER  NOTICE TO THE PEOPLE AND THE REQUESTER AND AN OPPORTUNITY
TO BE HEARD AND REASONABLE EFFORTS TO NOTIFY AND PROVIDE AN  OPPORTUNITY
TO  BE  HEARD TO ANY OTHER APPROPRIATE PERSON OR AGENCY, THAT THERE IS A
REASONABLE LIKELIHOOD THAT PUBLIC  RELEASE  OF  SUCH  INFORMATION  WOULD
ENDANGER ANY INDIVIDUAL.
  S  4.  This  act shall take effect on the thirtieth day after it shall
have become a law.