S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   24

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2015
                               ___________

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

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

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The judiciary law is amended by adding a new  article  15-A
to read as follows:
                              ARTICLE 15-A
                STATE COMMISSION ON PROSECUTORIAL CONDUCT
SECTION 499-A. ESTABLISHMENT OF COMMISSION.
        499-B. DEFINITIONS.
        499-C. STATE COMMISSION ON PROSECUTORIAL CONDUCT; ORGANIZATION.
        499-D. FUNCTIONS; POWERS AND DUTIES.
        499-E. PANELS; REFEREES.
        499-F. COMPLAINT; INVESTIGATION; HEARING AND DISPOSITION.
        499-G. CONFIDENTIALITY OF RECORDS.
        499-H. BREACH OF CONFIDENTIALITY OF COMMISSION INFORMATION.
        499-I. RESIGNATION  NOT TO DIVEST COMMISSION OR COURT OF APPEALS
                 OF JURISDICTION.
        499-J. EFFECT.
  S 499-A. ESTABLISHMENT OF COMMISSION. A STATE COMMISSION OF PROSECUTO-
RIAL CONDUCT IS  HEREBY  ESTABLISHED.  THE  COMMISSION  SHALL  HAVE  THE
AUTHORITY  TO  REVIEW  THE  CONDUCT  OF PROSECUTORS UPON THE FILING OF A
COMPLAINT WITH THE COMMISSION  TO  DETERMINE  WHETHER  SAID  CONDUCT  AS
ALLEGED  DEPARTS  FROM THE APPLICABLE STATUTES, CASE LAW, NEW YORK RULES
OF PROFESSIONAL RESPONSIBILITY AND RULE 3.8 (SPECIAL RESPONSIBILITIES OF
PROSECUTORS) OF THE MODEL RULES OF PROFESSIONAL CONDUCT OF THE  AMERICAN
BAR ASSOCIATIONS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01145-01-5
              

S. 24                               2

  S  499-B.  DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE THE FOLLOWING
TERMS HAVE THE FOLLOWING MEANINGS:
  1. "COMMISSION" MEANS THE STATE COMMISSION ON PROSECUTORIAL CONDUCT.
  2.  "PROSECUTOR"  MEANS  A DISTRICT ATTORNEY OR ANY ASSISTANT DISTRICT
ATTORNEY OF ANY COUNTY OF THE STATE, AND THE  ATTORNEY  GENERAL  OR  ANY
ASSISTANT  ATTORNEY  GENERAL OF THE STATE, OR ANY INDIVIDUAL EMPLOYED BY
OR SUBJECT TO THE DIRECTION AND  SUPERVISION  OF  A  DISTRICT  ATTORNEY,
ASSISTANT  DISTRICT  ATTORNEY,  ATTORNEY  GENERAL  OR ASSISTANT ATTORNEY
GENERAL, IN AN ACTION TO EXACT ANY CRIMINAL PENALTY, FINE,  SANCTION  OR
FORFEITURE.
  3. "HEARING" MEANS A PROCEEDING UNDER SUBDIVISION FOUR OF SECTION FOUR
HUNDRED NINETY-NINE-F OF THIS ARTICLE.
  4.  "MEMBER OF THE BAR" MEANS A PERSON ADMITTED TO THE PRACTICE OF LAW
IN THIS STATE FOR AT LEAST FIVE YEARS.
  S 499-C. STATE COMMISSION ON PROSECUTORIAL CONDUCT; ORGANIZATION.   1.
THE  COMMISSION  SHALL  CONSIST  OF ELEVEN MEMBERS, OF WHOM TWO SHALL BE
APPOINTED BY THE GOVERNOR, TWO BY THE TEMPORARY PRESIDENT OF THE SENATE,
ONE BY THE MINORITY LEADER OF THE SENATE, TWO  BY  THE  SPEAKER  OF  THE
ASSEMBLY,  ONE  BY  THE MINORITY LEADER OF THE ASSEMBLY AND THREE BY THE
CHIEF JUDGE OF THE COURT OF APPEALS. OF THE  MEMBERS  APPOINTED  BY  THE
GOVERNOR  ONE  SHALL BE A PUBLIC DEFENDER AND ONE SHALL BE A PROSECUTOR.
OF THE MEMBERS APPOINTED BY THE  CHIEF  JUDGE  ONE  PERSON  SHALL  BE  A
JUSTICE  OF THE APPELLATE DIVISION OF THE SUPREME COURT AND TWO SHALL BE
JUDGES OF COURTS OTHER THAN THE COURT OF APPEALS OR APPELLATE  DIVISION.
OF  THE  MEMBERS APPOINTED BY THE LEGISLATIVE LEADERS, THERE SHALL BE AN
EQUAL NUMBER OF PROSECUTORS AND ATTORNEYS  PROVIDING  DEFENSE  SERVICES;
PROVIDED,  HOWEVER, THAT A TEMPORARY IMBALANCE IN THE NUMBER OF PROSECU-
TORS AND DEFENSE ATTORNEYS PENDING NEW APPOINTMENTS  SHALL  NOT  PREVENT
THE COMMISSION FROM CONDUCTING BUSINESS.
  2.  MEMBERSHIP  ON THE COMMISSION BY A PROSECUTOR SHALL NOT CONSTITUTE
THE HOLDING OF A PUBLIC OFFICE AND NO PROSECUTOR SHALL  BE  REQUIRED  TO
TAKE  AND  FILE  AN OATH OF OFFICE BEFORE SERVING ON THE COMMISSION. THE
MEMBERS OF THE COMMISSION SHALL ELECT ONE OF THEIR NUMBER  TO  SERVE  AS
CHAIRMAN  DURING HIS OR HER TERM OF OFFICE OR FOR A PERIOD OF TWO YEARS,
WHICHEVER IS SHORTER.
  3. THE PERSONS FIRST APPOINTED BY THE GOVERNOR SHALL HAVE RESPECTIVELY
THREE AND FOUR YEAR TERMS AS HE OR  SHE  SHALL  DESIGNATE.  THE  PERSONS
FIRST  APPOINTED  BY  THE CHIEF JUDGE OF THE COURT OF APPEALS SHALL HAVE
RESPECTIVELY TWO, THREE AND FOUR YEAR TERMS AS HE OR  SHE  SHALL  DESIG-
NATE.  THE  PERSONS  FIRST  APPOINTED  BY THE TEMPORARY PRESIDENT OF THE
SENATE SHALL HAVE RESPECTIVELY THREE AND FOUR YEAR TERMS AS  HE  OR  SHE
SHALL  DESIGNATE.  THE  PERSON FIRST APPOINTED BY THE MINORITY LEADER OF
THE SENATE SHALL HAVE A TWO YEAR TERM. THE PERSONS  FIRST  APPOINTED  BY
THE  SPEAKER OF THE ASSEMBLY SHALL HAVE RESPECTIVELY THREE AND FOUR YEAR
TERMS AS HE OR SHE SHALL DESIGNATE. THE PERSON FIRST  APPOINTED  BY  THE
MINORITY  LEADER  OF  THE  ASSEMBLY SHALL HAVE A THREE   YEAR TERM. EACH
MEMBER OF THE COMMISSION SHALL BE APPOINTED THEREAFTER  FOR  A  TERM  OF
FOUR YEARS. COMMISSION MEMBERSHIP OF A JUDGE OR JUSTICE APPOINTED BY THE
GOVERNOR  OR  THE  CHIEF  JUDGE SHALL TERMINATE IF SUCH MEMBER CEASES TO
HOLD THE JUDICIAL POSITION WHICH QUALIFIED HIM OR HER FOR SUCH  APPOINT-
MENT.  MEMBERSHIP  SHALL  ALSO  TERMINATE IF A MEMBER ATTAINS A POSITION
WHICH WOULD HAVE RENDERED HIM OR HER INELIGIBLE FOR APPOINTMENT  AT  THE
TIME  OF  HIS  OR  HER  APPOINTMENT.  A  VACANCY  SHALL BE FILLED BY THE
APPOINTING OFFICER FOR THE REMAINDER OF THE TERM.
  4. IF A MEMBER OF THE COMMISSION WHO IS A PROSECUTOR IS THE SUBJECT OF
A COMPLAINT OR INVESTIGATION WITH RESPECT TO HIS OR HER  QUALIFICATIONS,

S. 24                               3

CONDUCT,  FITNESS  TO  PERFORM  OR  PERFORMANCE  OF  HIS OR HER OFFICIAL
DUTIES, HE OR SHE SHALL BE DISQUALIFIED FROM PARTICIPATING  IN  ANY  AND
ALL  PROCEEDINGS WITH RESPECT THERETO.  IF A MEMBER OF THE COMMISSION IS
EMPLOYED  IN  THE  SAME  ORGANIZATION  AS  THE SUBJECT OF A COMPLAINT OR
INVESTIGATION WITH  RESPECT  TO  HIS  OR  HER  QUALIFICATIONS,  CONDUCT,
FITNESS  TO PERFORM, OR PERFORMANCE OF HIS OR HER OFFICIAL DUTIES, HE OR
SHE SHALL BE DISQUALIFIED FROM PARTICIPATING IN ANY AND ALL  PROCEEDINGS
WITH RESPECT THERETO.
  5.  EACH  MEMBER OF THE COMMISSION SHALL SERVE WITHOUT SALARY OR OTHER
COMPENSATION, BUT SHALL BE ENTITLED  TO  RECEIVE  ACTUAL  AND  NECESSARY
EXPENSES INCURRED IN THE DISCHARGE OF HIS OR HER DUTIES.
  6.  FOR ANY ACTION TAKEN PURSUANT TO SUBDIVISIONS FOUR THROUGH NINE OF
SECTION FOUR HUNDRED NINETY-NINE-F OR SUBDIVISION TWO  OF  SECTION  FOUR
HUNDRED  NINETY-NINE-E  OF THIS ARTICLE, EIGHT MEMBERS OF THE COMMISSION
SHALL CONSTITUTE A QUORUM OF THE COMMISSION AND THE CONCURRENCE  OF  SIX
MEMBERS  OF  THE  COMMISSION  SHALL BE NECESSARY. TWO MEMBERS OF A THREE
MEMBER PANEL OF THE COMMISSION SHALL CONSTITUTE A QUORUM  OF  THE  PANEL
AND  THE  CONCURRENCE OF TWO MEMBERS OF THE PANEL SHALL BE NECESSARY FOR
ANY ACTION TAKEN.
  7. THE COMMISSION SHALL APPOINT AND AT PLEASURE MAY REMOVE AN ADMINIS-
TRATOR WHO SHALL BE A MEMBER OF THE BAR  WHO  IS  NOT  A  PROSECUTOR  OR
RETIRED PROSECUTOR. THE ADMINISTRATOR OF THE COMMISSION MAY APPOINT SUCH
DEPUTIES,  ASSISTANTS,  COUNSEL,  INVESTIGATORS  AND  OTHER OFFICERS AND
EMPLOYEES AS HE OR SHE MAY DEEM NECESSARY, PRESCRIBE  THEIR  POWERS  AND
DUTIES,  FIX  THEIR  COMPENSATION AND PROVIDE FOR REIMBURSEMENT OF THEIR
EXPENSES WITHIN THE AMOUNTS APPROPRIATED THEREFOR.
  S 499-D. FUNCTIONS; POWERS AND DUTIES. THE COMMISSION SHALL  HAVE  THE
FOLLOWING FUNCTIONS, POWERS AND DUTIES:
  1.  TO CONDUCT HEARINGS AND INVESTIGATIONS, ADMINISTER OATHS OR AFFIR-
MATIONS, SUBPOENA WITNESSES, COMPEL THEIR ATTENDANCE, EXAMINE THEM UNDER
OATH OR AFFIRMATION AND REQUIRE THE PRODUCTION OF  ANY  BOOKS,  RECORDS,
DOCUMENTS  OR OTHER EVIDENCE THAT IT MAY DEEM RELEVANT OR MATERIAL TO AN
INVESTIGATION; AND THE COMMISSION MAY DESIGNATE ANY OF  ITS  MEMBERS  OR
ANY  MEMBER OF ITS STAFF TO EXERCISE ANY SUCH POWERS, PROVIDED, HOWEVER,
THAT  EXCEPT  AS  IS  OTHERWISE  PROVIDED  IN   SECTION   FOUR   HUNDRED
NINETY-NINE-E  OF  THIS  ARTICLE, ONLY A MEMBER OF THE COMMISSION OR THE
ADMINISTRATOR SHALL EXERCISE THE POWER TO SUBPOENA WITNESSES OR  REQUIRE
THE PRODUCTION OF BOOKS, RECORDS, DOCUMENTS OR OTHER EVIDENCE.
  2. TO CONFER IMMUNITY WHEN THE COMMISSION DEEMS IT NECESSARY AND PROP-
ER  IN  ACCORDANCE  WITH  SECTION  50.20  OF THE CRIMINAL PROCEDURE LAW;
PROVIDED, HOWEVER, THAT AT LEAST FORTY-EIGHT HOURS PRIOR WRITTEN  NOTICE
OF  THE  COMMISSION'S  INTENTION  TO  CONFER  SUCH IMMUNITY IS GIVEN THE
ATTORNEY GENERAL AND THE APPROPRIATE DISTRICT ATTORNEY.
  3. TO REQUEST AND RECEIVE FROM ANY COURT, DEPARTMENT, DIVISION, BOARD,
BUREAU, COMMISSION, OR OTHER AGENCY OF THE STATE OR  POLITICAL  SUBDIVI-
SION  THEREOF  OR  ANY PUBLIC AUTHORITY SUCH ASSISTANCE, INFORMATION AND
DATA AS WILL ENABLE IT PROPERLY TO CARRY OUT ITS FUNCTIONS,  POWERS  AND
DUTIES.
  4.  TO  REPORT  ANNUALLY,  ON OR BEFORE THE FIRST DAY OF MARCH IN EACH
YEAR AND AT SUCH OTHER TIMES AS THE COMMISSION SHALL DEEM NECESSARY,  TO
THE  GOVERNOR,  THE  LEGISLATURE  AND  THE  CHIEF  JUDGE OF THE COURT OF
APPEALS, WITH RESPECT TO PROCEEDINGS WHICH HAVE BEEN FINALLY  DETERMINED
BY  THE COMMISSION. SUCH REPORTS MAY INCLUDE LEGISLATIVE AND ADMINISTRA-
TIVE RECOMMENDATIONS. THE CONTENTS OF THE ANNUAL REPORT  AND  ANY  OTHER
REPORT  SHALL  CONFORM  TO  THE  PROVISIONS  OF THIS ARTICLE RELATING TO
CONFIDENTIALITY.

S. 24                               4

  5. TO ADOPT, PROMULGATE, AMEND AND RESCIND RULES AND  PROCEDURES,  NOT
OTHERWISE  INCONSISTENT  WITH LAW, NECESSARY TO CARRY OUT THE PROVISIONS
AND PURPOSES OF THIS ARTICLE.  ALL SUCH RULES AND  PROCEDURES  SHALL  BE
FILED  IN  THE  OFFICES OF THE CHIEF ADMINISTRATOR OF THE COURTS AND THE
SECRETARY OF STATE.
  6.  TO  DO  ALL OTHER THINGS NECESSARY AND CONVENIENT TO CARRY OUT ITS
FUNCTIONS, POWERS AND DUTIES EXPRESSLY SET FORTH IN THIS ARTICLE.
  S 499-E. PANELS; REFEREES. 1. THE COMMISSION MAY DELEGATE ANY  OF  ITS
FUNCTIONS,  POWERS AND DUTIES TO A PANEL OF THREE OF ITS MEMBERS, ONE OF
WHOM SHALL BE A MEMBER OF THE BAR, EXCEPT THAT  NO  PANEL  SHALL  CONFER
IMMUNITY IN ACCORDANCE WITH SECTION 50.20 OF THE CRIMINAL PROCEDURE LAW.
NO PANEL SHALL BE AUTHORIZED TO TAKE ANY ACTION PURSUANT TO SUBDIVISIONS
FOUR  THROUGH NINE OF SECTION FOUR HUNDRED NINETY-NINE-F OF THIS ARTICLE
OR SUBDIVISION TWO OF THIS SECTION.
  2. THE COMMISSION MAY DESIGNATE A MEMBER OF  THE  BAR  WHO  IS  NOT  A
PROSECUTOR  OR  A  MEMBER OF THE COMMISSION OR ITS STAFF AS A REFEREE TO
HEAR AND REPORT TO THE COMMISSION IN ACCORDANCE WITH THE  PROVISIONS  OF
SECTION  FOUR  HUNDRED NINETY-NINE-F OF THIS ARTICLE. SUCH REFEREE SHALL
BE EMPOWERED TO CONDUCT  HEARINGS,  ADMINISTER  OATHS  OR  AFFIRMATIONS,
SUBPOENA  WITNESSES, COMPEL THEIR ATTENDANCE, EXAMINE THEM UNDER OATH OR
AFFIRMATION AND REQUIRE THE PRODUCTION OF ANY BOOKS, RECORDS,  DOCUMENTS
OR  OTHER EVIDENCE THAT THE REFEREE MAY DEEM RELEVANT OR MATERIAL TO THE
SUBJECT OF THE HEARING.
  S 499-F. COMPLAINT; INVESTIGATION; HEARING AND DISPOSITION.  1.    THE
COMMISSION SHALL RECEIVE, INITIATE, INVESTIGATE AND HEAR COMPLAINTS WITH
RESPECT  TO THE CONDUCT, QUALIFICATIONS, FITNESS TO PERFORM, OR PERFORM-
ANCE OF OFFICIAL DUTIES OF ANY PROSECUTOR,  AND  MAY  DETERMINE  THAT  A
PROSECUTOR  BE ADMONISHED, OR CENSURED; AND MAKE A RECOMMENDATION TO THE
GOVERNOR THAT A PROSECUTOR  BE  REMOVED  FROM  OFFICE  FOR  CAUSE,  FOR,
INCLUDING, BUT NOT LIMITED TO, MISCONDUCT IN OFFICE, AS EVIDENCED BY HIS
OR  HER DEPARTURE FROM HIS OR HER OBLIGATIONS UNDER APPROPRIATE STATUTE,
CASELAW, AND/OR RULE 3.8 SPECIAL RESPONSIBILITIES OF  PROSECUTORS  WHICH
IS  PART  OF THE MODEL RULES OF PROFESSIONAL CONDUCT OF THE AMERICAN BAR
ASSOCIATION, PERSISTENT FAILURE TO PERFORM HIS OR HER  DUTIES,  HABITUAL
INTEMPERANCE  AND CONDUCT, IN AND OUTSIDE OF HIS OR HER OFFICE, PREJUDI-
CIAL TO THE ADMINISTRATION OF JUSTICE, OR THAT A PROSECUTOR  BE  RETIRED
FOR  MENTAL  OR PHYSICAL DISABILITY PREVENTING THE PROPER PERFORMANCE OF
HIS OR HER PROSECUTORIAL DUTIES. A COMPLAINT SHALL  BE  IN  WRITING  AND
SIGNED  BY  THE COMPLAINANT AND, IF DIRECTED BY THE COMMISSION, SHALL BE
VERIFIED. UPON RECEIPT OF A COMPLAINT (A) THE COMMISSION  SHALL  CONDUCT
AN INVESTIGATION OF THE COMPLAINT; OR (B) THE COMMISSION MAY DISMISS THE
COMPLAINT  IF  IT DETERMINES THAT THE COMPLAINT ON ITS FACE LACKS MERIT.
IF THE COMPLAINT IS  DISMISSED,  THE  COMMISSION  SHALL  SO  NOTIFY  THE
COMPLAINANT. IF THE COMMISSION SHALL HAVE NOTIFIED THE PROSECUTOR OF THE
COMPLAINT,  THE  COMMISSION  SHALL  ALSO  NOTIFY  THE PROSECUTOR OF SUCH
DISMISSAL.
  2. THE COMMISSION MAY, ON ITS OWN MOTION, INITIATE AN INVESTIGATION OF
A PROSECUTOR WITH RESPECT TO HIS OR HER QUALIFICATIONS, CONDUCT, FITNESS
TO PERFORM OR THE PERFORMANCE OF HIS OR HER OFFICIAL  DUTIES.  PRIOR  TO
INITIATING  ANY SUCH INVESTIGATION, THE COMMISSION SHALL FILE AS PART OF
ITS RECORD A WRITTEN COMPLAINT,  SIGNED  BY  THE  ADMINISTRATOR  OF  THE
COMMISSION,  WHICH  COMPLAINT SHALL SERVE AS THE BASIS FOR SUCH INVESTI-
GATION.
  3. IN THE COURSE OF AN INVESTIGATION, THE COMMISSION MAY  REQUIRE  THE
APPEARANCE  OF  THE  PROSECUTOR  INVOLVED  BEFORE IT, IN WHICH EVENT THE
PROSECUTOR SHALL BE NOTIFIED IN WRITING OF HIS OR HER  REQUIRED  APPEAR-

S. 24                               5

ANCE,  EITHER  PERSONALLY, AT LEAST THREE DAYS PRIOR TO SUCH APPEARANCE,
OR BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT LEAST FIVE DAYS PRIOR
TO SUCH APPEARANCE. IN EITHER CASE A COPY  OF  THE  COMPLAINT  SHALL  BE
SERVED  UPON THE PROSECUTOR AT THE TIME OF SUCH NOTIFICATION. THE PROSE-
CUTOR SHALL HAVE THE RIGHT TO BE REPRESENTED BY COUNSEL DURING  ANY  AND
ALL  STAGES  OF  THE  INVESTIGATION  IN  WHICH  HIS OR HER APPEARANCE IS
REQUIRED AND TO PRESENT EVIDENTIARY DATA AND MATERIAL  RELEVANT  TO  THE
COMPLAINT.  A  TRANSCRIPT  SHALL  BE  MADE  AND KEPT WITH RESPECT TO ALL
PROCEEDINGS AT WHICH TESTIMONY OR STATEMENTS UNDER OATH OF ANY PARTY  OR
WITNESS SHALL BE TAKEN, AND THE TRANSCRIPT OF THE PROSECUTOR'S TESTIMONY
SHALL  BE MADE AVAILABLE TO THE PROSECUTOR WITHOUT COST. SUCH TRANSCRIPT
SHALL BE CONFIDENTIAL EXCEPT AS  OTHERWISE  PERMITTED  BY  SECTION  FOUR
HUNDRED NINETY-NINE-G OF THIS ARTICLE.
  4.  IF  IN  THE  COURSE OF AN INVESTIGATION, THE COMMISSION DETERMINES
THAT A HEARING IS WARRANTED  IT  SHALL  DIRECT  THAT  A  FORMAL  WRITTEN
COMPLAINT  SIGNED  AND VERIFIED BY THE ADMINISTRATOR BE DRAWN AND SERVED
UPON THE PROSECUTOR INVOLVED, EITHER PERSONALLY OR  BY  CERTIFIED  MAIL,
RETURN  RECEIPT REQUESTED. THE PROSECUTOR SHALL FILE A WRITTEN ANSWER TO
THE COMPLAINT WITH THE COMMISSION WITHIN TWENTY DAYS  OF  SUCH  SERVICE.
IF,  UPON  RECEIPT  OF  THE  ANSWER,  OR  UPON EXPIRATION OF THE TIME TO
ANSWER, THE COMMISSION SHALL DIRECT THAT A HEARING BE HELD WITH  RESPECT
TO  THE  COMPLAINT, THE PROSECUTOR INVOLVED SHALL BE NOTIFIED IN WRITING
OF THE DATE OF THE HEARING EITHER PERSONALLY, AT LEAST TWENTY DAYS PRIOR
THERETO, OR BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT LEAST  TWEN-
TY-TWO  DAYS  PRIOR THERETO. UPON THE WRITTEN REQUEST OF THE PROSECUTOR,
THE COMMISSION SHALL, AT LEAST FIVE DAYS PRIOR TO  THE  HEARING  OR  ANY
ADJOURNED  DATE  THEREOF,  MAKE AVAILABLE TO THE PROSECUTOR WITHOUT COST
COPIES OF ALL DOCUMENTS WHICH THE COMMISSION INTENDS TO PRESENT AT  SUCH
HEARING  AND ANY WRITTEN STATEMENTS MADE BY WITNESSES WHO WILL BE CALLED
TO GIVE TESTIMONY BY THE COMMISSION. THE COMMISSION SHALL, IN ANY  CASE,
MAKE AVAILABLE TO THE PROSECUTOR AT LEAST FIVE DAYS PRIOR TO THE HEARING
OR ANY ADJOURNED DATE THEREOF ANY EXCULPATORY EVIDENTIARY DATA AND MATE-
RIAL  RELEVANT TO THE COMPLAINT. THE FAILURE OF THE COMMISSION TO TIMELY
FURNISH ANY DOCUMENTS, STATEMENTS AND/OR  EXCULPATORY  EVIDENTIARY  DATA
AND  MATERIAL  PROVIDED  FOR HEREIN SHALL NOT AFFECT THE VALIDITY OF ANY
PROCEEDINGS BEFORE THE COMMISSION PROVIDED  THAT  SUCH  FAILURE  IS  NOT
SUBSTANTIALLY  PREJUDICIAL  TO  THE  PROSECUTOR.  THE COMPLAINANT MAY BE
NOTIFIED OF THE HEARING AND UNLESS HE OR SHE SHALL BE  SUBPOENAED  AS  A
WITNESS  BY  THE PROSECUTOR, HIS OR HER PRESENCE THEREAT SHALL BE WITHIN
THE DISCRETION OF THE COMMISSION. THE HEARING SHALL NOT BE PUBLIC UNLESS
THE PROSECUTOR INVOLVED SHALL SO DEMAND IN WRITING. AT THE  HEARING  THE
COMMISSION  MAY  TAKE THE TESTIMONY OF WITNESSES AND RECEIVE EVIDENTIARY
DATA AND MATERIAL RELEVANT TO THE COMPLAINT. THE PROSECUTOR  SHALL  HAVE
THE  RIGHT TO BE REPRESENTED BY COUNSEL DURING ANY AND ALL STAGES OF THE
HEARING AND SHALL HAVE THE RIGHT TO CALL AND CROSS-EXAMINE WITNESSES AND
PRESENT EVIDENTIARY DATA AND MATERIAL RELEVANT TO THE COMPLAINT. A TRAN-
SCRIPT OF THE PROCEEDINGS AND OF THE TESTIMONY OF WITNESSES AT THE HEAR-
ING SHALL BE TAKEN AND KEPT WITH THE RECORDS OF THE COMMISSION.
  5. SUBJECT TO THE APPROVAL OF THE COMMISSION,  THE  ADMINISTRATOR  AND
THE  PROSECUTOR  MAY  AGREE ON A STATEMENT OF FACTS AND MAY STIPULATE IN
WRITING THAT THE HEARING SHALL BE WAIVED. IN SUCH A CASE, THE COMMISSION
SHALL MAKE ITS DETERMINATION UPON THE PLEADINGS AND THE AGREED STATEMENT
OF FACTS.
  6. IF, AFTER A FORMAL WRITTEN COMPLAINT HAS BEEN  SERVED  PURSUANT  TO
SUBDIVISION  FOUR  OF  THIS  SECTION, OR DURING THE COURSE OF OR AFTER A
HEARING, THE COMMISSION DETERMINES THAT NO FURTHER ACTION IS  NECESSARY,

S. 24                               6

THE  COMPLAINT SHALL BE DISMISSED AND THE COMPLAINANT AND THE PROSECUTOR
SHALL BE SO NOTIFIED IN WRITING.
  7.  AFTER A HEARING, THE COMMISSION MAY DETERMINE THAT A PROSECUTOR BE
ADMONISHED OR CENSURED, OR MAY RECOMMEND TO THE GOVERNOR THAT A PROSECU-
TOR BE REMOVED FROM OFFICE FOR CAUSE. THE COMMISSION SHALL TRANSMIT  ITS
WRITTEN  DETERMINATION,  TOGETHER  WITH ITS FINDINGS OF FACT AND CONCLU-
SIONS OF LAW AND THE RECORD OF THE PROCEEDINGS UPON WHICH  ITS  DETERMI-
NATION  IS  BASED,  TO THE CHIEF JUDGE OF THE COURT OF APPEALS WHO SHALL
CAUSE A COPY THEREOF TO BE SERVED  EITHER  PERSONALLY  OR  BY  CERTIFIED
MAIL,  RETURN  RECEIPT  REQUESTED,  ON  THE  PROSECUTOR  INVOLVED.  UPON
COMPLETION OF SERVICE, THE DETERMINATION OF THE COMMISSION, ITS FINDINGS
AND CONCLUSIONS AND THE RECORD OF ITS PROCEEDINGS SHALL BE  MADE  PUBLIC
AND  SHALL  BE  MADE  AVAILABLE  FOR  PUBLIC INSPECTION AT THE PRINCIPAL
OFFICE OF THE COMMISSION AND AT THE OFFICE OF THE CLERK OF THE COURT  OF
APPEALS.  THE PROSECUTOR INVOLVED MAY EITHER ACCEPT THE DETERMINATION OF
THE COMMISSION OR MAKE WRITTEN REQUEST TO THE CHIEF JUDGE, WITHIN THIRTY
DAYS AFTER RECEIPT OF SUCH DETERMINATION, FOR A REVIEW  THEREOF  BY  THE
COURT  OF APPEALS. IF THE COMMISSION HAS DETERMINED THAT A PROSECUTOR BE
ADMONISHED OR CENSURED, AND IF THE PROSECUTOR ACCEPTS SUCH DETERMINATION
OR FAILS TO REQUEST A REVIEW  THEREOF  BY  THE  COURT  OF  APPEALS,  THE
COMMISSION  SHALL THEREUPON ADMONISH OR CENSURE HIM OR HER IN ACCORDANCE
WITH ITS FINDINGS. IF THE COMMISSION HAS AND THE COURT OF APPEALS RECOM-
MENDS THAT A PROSECUTOR BE REMOVED IT SHALL TRANSMIT THE COMMISSION  AND
COURT  OF APPEALS FINDINGS TO THE GOVERNOR WHO WILL INDEPENDENTLY DETER-
MINE WHETHER THE PROSECUTOR SHOULD BE REMOVED OR RETIRED.
  8. IF THE PROSECUTOR REQUESTS A REVIEW OF  THE  DETERMINATION  OF  THE
COMMISSION,  IN  ITS  REVIEW  OF  A DETERMINATION OF THE COMMISSION, THE
COURT OF APPEALS SHALL REVIEW THE  COMMISSION'S  FINDINGS  OF  FACT  AND
CONCLUSIONS  OF  LAW  ON  THE  RECORD  OF THE PROCEEDINGS UPON WHICH THE
COMMISSION'S DETERMINATION WAS BASED. AFTER SUCH REVIEW, THE  COURT  MAY
ACCEPT  OR  REJECT  THE DETERMINED SANCTION; IMPOSE A DIFFERENT SANCTION
INCLUDING ADMONITION OR CENSURE, RECOMMEND REMOVAL OR RETIREMENT FOR THE
REASONS SET FORTH IN SUBDIVISION ONE OF THIS SECTION; OR IMPOSE NO SANC-
TION.  HOWEVER, IF THE COURT OF APPEALS DETERMINES  REMOVAL  OR  RETIRE-
MENT, IT SHALL, TOGETHER WITH THE COMMISSION, TRANSMIT THE ENTIRE RECORD
TO  THE  GOVERNOR  WHO WILL INDEPENDENTLY DETERMINE WHETHER A PROSECUTOR
SHOULD BE REMOVED OR RETIRED.
  9. (A) THE COURT OF APPEALS MAY SUSPEND A PROSECUTOR  FROM  EXERCISING
THE  POWERS  OF HIS OR HER OFFICE WHILE THERE IS PENDING A DETERMINATION
BY THE COMMISSION FOR HIS OR HER REMOVAL OR RETIREMENT, OR WHILE  HE  OR
SHE IS CHARGED IN THIS STATE WITH A FELONY BY AN INDICTMENT OR AN INFOR-
MATION FILED PURSUANT TO SECTION SIX OF ARTICLE ONE OF THE CONSTITUTION.
THE  SUSPENSION  SHALL  CONTINUE  UPON CONVICTION AND, IF THE CONVICTION
BECOMES FINAL, HE OR SHE SHALL BE REMOVED FROM OFFICE BY  THE  GOVERNOR.
THE  SUSPENSION  SHALL BE TERMINATED UPON REVERSAL OF THE CONVICTION AND
DISMISSAL OF THE ACCUSATORY INSTRUMENT.
  (B) UPON THE RECOMMENDATION OF THE COMMISSION OR ON  ITS  OWN  MOTION,
THE COURT MAY SUSPEND A PROSECUTOR FROM OFFICE WHEN HE OR SHE IS CHARGED
WITH A CRIME PUNISHABLE AS A FELONY UNDER THE LAWS OF THIS STATE, OR ANY
OTHER CRIME WHICH INVOLVES MORAL TURPITUDE. THE SUSPENSION SHALL CONTIN-
UE UPON CONVICTION AND, IF THE CONVICTION BECOMES FINAL, HE OR SHE SHALL
BE REMOVED FROM OFFICE. THE SUSPENSION SHALL BE TERMINATED UPON REVERSAL
OF THE CONVICTION AND DISMISSAL OF THE ACCUSATORY INSTRUMENT.
  (C)  A  PROSECUTOR  WHO  IS  SUSPENDED  FROM OFFICE BY THE COURT SHALL
RECEIVE HIS OR HER SALARY DURING SUCH PERIOD OF SUSPENSION,  UNLESS  THE
COURT  DIRECTS  OTHERWISE. IF THE COURT HAS SO DIRECTED AND SUCH SUSPEN-

S. 24                               7

SION IS THEREAFTER TERMINATED, THE COURT MAY DIRECT THAT HE OR SHE SHALL
BE PAID HIS OR HER SALARY FOR SUCH PERIOD OF SUSPENSION.
  (D)  NOTHING  IN  THIS  SUBDIVISION  SHALL PREVENT THE COMMISSION FROM
DETERMINING THAT A PROSECUTOR BE ADMONISHED OR CENSURED OR  PREVENT  THE
COMMISSION  FROM RECOMMENDING REMOVAL OR RETIREMENT PURSUANT TO SUBDIVI-
SION SEVEN OF THIS SECTION.
  10. IF DURING THE COURSE OF OR AFTER AN INVESTIGATION OR HEARING,  THE
COMMISSION  DETERMINES  THAT  THE  COMPLAINT  OR  ANY ALLEGATION THEREOF
WARRANTS ACTION, OTHER THAN IN ACCORDANCE WITH THE PROVISIONS OF  SUBDI-
VISIONS  SEVEN THROUGH NINE OF THIS SECTION, WITHIN THE POWERS OF: (A) A
PERSON HAVING ADMINISTRATIVE JURISDICTION OVER THE  PROSECUTOR  INVOLVED
IN  THE COMPLAINT; OR (B) AN APPELLATE DIVISION OF THE SUPREME COURT; OR
(C) A PRESIDING JUSTICE OF AN APPELLATE DIVISION OF THE  SUPREME  COURT;
OR  (D)  THE  CHIEF  JUDGE  OF THE COURT OF APPEALS; OR (E) THE GOVERNOR
PURSUANT TO SUBDIVISION (B) OF SECTION THIRTEEN OF ARTICLE  THIRTEEN  OF
THE  CONSTITUTION;  OR  (F)  AN APPLICABLE DISTRICT ATTORNEY'S OFFICE OR
OTHER PROSECUTING AGENCY, THE COMMISSION SHALL REFER SUCH  COMPLAINT  OR
THE APPROPRIATE ALLEGATIONS THEREOF AND ANY EVIDENCE OR MATERIAL RELATED
THERETO TO SUCH PERSON, AGENCY OR COURT FOR SUCH ACTION AS MAY BE DEEMED
PROPER OR NECESSARY.
  11.  THE COMMISSION SHALL NOTIFY THE COMPLAINANT OF ITS DISPOSITION OF
THE COMPLAINT.
  12. IN THE EVENT OF REMOVAL FROM OFFICE BY THE GOVERNOR OF ANY  PROSE-
CUTOR,  A  VACANCY  SHALL  EXIST PURSUANT TO ARTICLE THREE OF THE PUBLIC
OFFICERS LAW.
  S 499-G. CONFIDENTIALITY OF RECORDS. EXCEPT AS  HEREINAFTER  PROVIDED,
ALL  COMPLAINTS,  CORRESPONDENCE, COMMISSION PROCEEDINGS AND TRANSCRIPTS
THEREOF, OTHER PAPERS AND DATA AND RECORDS OF THE  COMMISSION  SHALL  BE
CONFIDENTIAL AND SHALL NOT BE MADE AVAILABLE TO ANY PERSON EXCEPT PURSU-
ANT  TO  SECTION FOUR HUNDRED NINETY-NINE-F OF THIS ARTICLE. THE COMMIS-
SION AND ITS DESIGNATED STAFF PERSONNEL SHALL HAVE ACCESS  TO  CONFIDEN-
TIAL  MATERIAL  IN  THE  PERFORMANCE OF THEIR POWERS AND DUTIES.  IF THE
PROSECUTOR WHO IS THE SUBJECT OF A COMPLAINT  SO  REQUESTS  IN  WRITING,
COPIES  OF  THE COMPLAINT, THE TRANSCRIPTS OF HEARINGS BY THE COMMISSION
THEREON, IF ANY, AND THE  DISPOSITIVE  ACTION  OF  THE  COMMISSION  WITH
RESPECT TO THE COMPLAINT, SUCH COPIES WITH ANY REFERENCE TO THE IDENTITY
OF  ANY  PERSON  WHO  DID  NOT  PARTICIPATE AT ANY SUCH HEARING SUITABLY
DELETED THEREFROM, EXCEPT THE SUBJECT PROSECUTOR OR  COMPLAINANT,  SHALL
BE  MADE  AVAILABLE  FOR INSPECTION AND COPYING TO THE PUBLIC, OR TO ANY
PERSON, AGENCY OR BODY DESIGNATED BY SUCH PROSECUTOR.
  S 499-H. BREACH OF CONFIDENTIALITY OF COMMISSION INFORMATION.  1.  ANY
STAFF MEMBER, EMPLOYEE OR AGENT OF THE STATE COMMISSION ON PROSECUTORIAL
CONDUCT WHO VIOLATES ANY OF THE PROVISIONS OF SECTION FOUR HUNDRED NINE-
TY-NINE-G  OF  THIS  ARTICLE  SHALL  BE  SUBJECT TO A REPRIMAND, A FINE,
SUSPENSION OR REMOVAL BY THE COMMISSION.
  2. WITHIN TEN DAYS AFTER THE COMMISSION HAS ACQUIRED KNOWLEDGE THAT  A
STAFF  MEMBER,  EMPLOYEE  OR  AGENT  OF  THE  COMMISSION HAS OR MAY HAVE
BREACHED THE PROVISIONS OF SECTION FOUR HUNDRED  NINETY-NINE-G  OF  THIS
ARTICLE,  WRITTEN  CHARGES  AGAINST SUCH STAFF MEMBER, EMPLOYEE OR AGENT
SHALL BE PREPARED AND SIGNED BY THE CHAIRMAN OF THE COMMISSION AND FILED
WITH THE COMMISSION. WITHIN FIVE DAYS  AFTER  RECEIPT  OF  CHARGES,  THE
COMMISSION SHALL DETERMINE, BY A VOTE OF THE MAJORITY OF ALL THE MEMBERS
OF  THE  COMMISSION,  WHETHER PROBABLE CAUSE FOR SUCH CHARGES EXISTS. IF
SUCH DETERMINATION IS AFFIRMATIVE, WITHIN FIVE DAYS THEREAFTER A WRITTEN
STATEMENT SPECIFYING THE CHARGES IN DETAIL  AND  OUTLINING  HIS  OR  HER
RIGHTS  UNDER  THIS  SECTION  SHALL  BE  FORWARDED  TO THE ACCUSED STAFF

S. 24                               8

MEMBER, EMPLOYEE OR AGENT BY CERTIFIED MAIL. THE COMMISSION MAY  SUSPEND
THE  STAFF  MEMBER,  EMPLOYEE OR AGENT, WITH OR WITHOUT PAY, PENDING THE
FINAL DETERMINATION OF THE CHARGES. WITHIN TEN DAYS AFTER RECEIPT OF THE
STATEMENT  OF  CHARGES, THE STAFF MEMBER, EMPLOYEE OR AGENT SHALL NOTIFY
THE COMMISSION IN WRITING WHETHER HE OR SHE DESIRES  A  HEARING  ON  THE
CHARGES.  THE  FAILURE  OF THE STAFF MEMBER, EMPLOYEE OR AGENT TO NOTIFY
THE COMMISSION OF HIS OR HER DESIRE TO HAVE A HEARING WITHIN SUCH PERIOD
OF TIME SHALL BE DEEMED A WAIVER OF THE RIGHT TO A HEARING. IF THE HEAR-
ING HAS BEEN WAIVED, THE COMMISSION SHALL PROCEED, WITHIN TEN DAYS AFTER
SUCH WAIVER, BY A VOTE OF A MAJORITY OF ALL THE MEMBERS OF SUCH  COMMIS-
SION,  TO  DETERMINE  THE  CHARGES AND FIX THE PENALTY OR PUNISHMENT, IF
ANY, TO BE IMPOSED AS HEREINAFTER PROVIDED.
  3. UPON RECEIPT OF A REQUEST FOR A HEARING, THE COMMISSION SHALL SCHE-
DULE A HEARING, TO BE HELD AT THE COMMISSION OFFICES, WITHIN TWENTY DAYS
AFTER RECEIPT OF THE REQUEST THEREFOR, AND SHALL IMMEDIATELY  NOTIFY  IN
WRITING THE STAFF MEMBER, EMPLOYEE OR AGENT OF THE TIME AND PLACE THERE-
OF.
  4.  THE  COMMISSION  SHALL HAVE THE POWER TO ESTABLISH NECESSARY RULES
AND PROCEDURES FOR THE CONDUCT OF  HEARINGS  UNDER  THIS  SECTION.  SUCH
RULES SHALL NOT REQUIRE COMPLIANCE WITH TECHNICAL RULES OF EVIDENCE. ALL
SUCH  HEARINGS  SHALL  BE  HELD BEFORE A HEARING PANEL COMPOSED OF THREE
MEMBERS OF THE COMMISSION SELECTED BY THE COMMISSION. EACH HEARING SHALL
BE CONDUCTED BY THE CHAIRMAN OF THE PANEL WHO SHALL BE SELECTED  BY  THE
PANEL.  THE  STAFF  MEMBER,  EMPLOYEE  OR  AGENT SHALL HAVE A REASONABLE
OPPORTUNITY TO DEFEND HIMSELF AND TO TESTIFY ON HIS OR HER  OWN  BEHALF.
HE  OR  SHE  SHALL  ALSO HAVE THE RIGHT TO BE REPRESENTED BY COUNSEL, TO
SUBPOENA WITNESSES AND TO CROSS-EXAMINE WITNESSES. ALL  TESTIMONY  TAKEN
SHALL BE UNDER OATH WHICH THE CHAIRMAN OF THE PANEL IS HEREBY AUTHORIZED
TO  ADMINISTER.  A RECORD OF THE PROCEEDINGS SHALL BE MADE AND A COPY OF
THE TRANSCRIPT OF THE HEARING SHALL, UPON WRITTEN REQUEST, BE  FURNISHED
WITHOUT CHARGE TO THE STAFF MEMBER, EMPLOYEE OR AGENT INVOLVED.
  5. WITHIN FIVE DAYS AFTER THE CONCLUSION OF A HEARING, THE PANEL SHALL
FORWARD  A REPORT OF THE HEARING, INCLUDING ITS FINDINGS AND RECOMMENDA-
TIONS, INCLUDING ITS RECOMMENDATIONS AS TO PENALTY OR PUNISHMENT, IF ONE
IS WARRANTED, TO THE COMMISSION AND TO THE ACCUSED STAFF MEMBER, EMPLOY-
EE OR AGENT. WITHIN TEN DAYS AFTER RECEIPT OF SUCH REPORT THE COMMISSION
SHALL DETERMINE WHETHER IT SHALL IMPLEMENT THE  RECOMMENDATIONS  OF  THE
PANEL.  IF  THE COMMISSION SHALL DETERMINE TO IMPLEMENT SUCH RECOMMENDA-
TIONS, WHICH SHALL INCLUDE THE PENALTY  OR  PUNISHMENT,  IF  ANY,  OF  A
REPRIMAND, A FINE, SUSPENSION FOR A FIXED TIME WITHOUT PAY OR DISMISSAL,
IT SHALL DO SO WITHIN FIVE DAYS AFTER SUCH DETERMINATION. IF THE CHARGES
AGAINST  THE  STAFF  MEMBER,  EMPLOYEE OR AGENT ARE DISMISSED, HE OR SHE
SHALL BE RESTORED TO HIS OR HER POSITION WITH FULL PAY FOR ANY PERIOD OF
SUSPENSION WITHOUT PAY AND THE CHARGES SHALL BE EXPUNGED FROM HIS OR HER
RECORD.
  6. THE ACCUSED STAFF MEMBER, EMPLOYEE OR AGENT MAY SEEK REVIEW OF  THE
RECOMMENDATION BY THE COMMISSION BY WAY OF A SPECIAL PROCEEDING PURSUANT
TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
  S  499-I.  RESIGNATION NOT TO DIVEST COMMISSION OR COURT OF APPEALS OF
JURISDICTION.  THE JURISDICTION OF THE COURT OF APPEALS AND THE  COMMIS-
SION  PURSUANT  TO  THIS  ARTICLE  SHALL CONTINUE NOTWITHSTANDING THAT A
PROSECUTOR RESIGNS FROM OFFICE AFTER A RECOMMENDATION BY THE  COMMISSION
THAT  THE  PROSECUTOR BE REMOVED FROM OFFICE HAS BEEN TRANSMITTED TO THE
CHIEF JUDGE OF THE COURT OF APPEALS, OR IN ANY CASE IN WHICH THE COMMIS-
SION'S RECOMMENDATION THAT A PROSECUTOR SHOULD BE  REMOVED  FROM  OFFICE
SHALL  BE  TRANSMITTED TO THE CHIEF JUDGE OF THE COURT OF APPEALS WITHIN

S. 24                               9

ONE HUNDRED TWENTY DAYS AFTER RECEIPT BY THE CHIEF ADMINISTRATOR OF  THE
COURTS  OF  THE RESIGNATION OF SUCH PROSECUTOR. ANY DETERMINATION BY THE
GOVERNOR THAT A PROSECUTOR WHO  HAS  RESIGNED  SHOULD  BE  REMOVED  FROM
OFFICE  SHALL RENDER SUCH PROSECUTOR INELIGIBLE TO HOLD ANY OTHER PROSE-
CUTORIAL OFFICE.
  S 499-J. EFFECT. 1. THE POWERS, DUTIES, AND  FUNCTIONS  OF  THE  STATE
COMMISSION  ON  PROSECUTORIAL CONDUCT SHALL NOT SUPERSEDE THE POWERS AND
DUTIES OF THE GOVERNOR AS OUTLINED IN SECTION THIRTEEN OF ARTICLE  THIR-
TEEN OF THE NEW YORK STATE CONSTITUTION.
  2.  REMOVAL  OR  RETIREMENT  OF  A PROSECUTOR PURSUANT TO THIS ARTICLE
SHALL BE CONSIDERED A REMOVAL FROM OFFICE PURSUANT TO SECTION THIRTY  OF
THE PUBLIC OFFICERS LAW.
  S  2.  If  any part or provision of this act is adjudged by a court of
competent jurisdiction to be unconstitutional or otherwise invalid, such
judgment shall not affect or impair any other part or provision of  this
act, but shall be confined in its operation to such part or provision.
  S 3. This act shall take effect January 1, 2016.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  24--A

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced  by  Sens.  DeFRANCISCO,  AVELLA,  HASSELL-THOMPSON, KRUEGER,
  LATIMER, PARKER, PERKINS, SQUADRON -- read twice and ordered  printed,
  and  when  printed  to  be  committed to the Committee on Judiciary --
  recommitted to the Committee on Judiciary in  accordance  with  Senate
  Rule  6,  sec.  8  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

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

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The judiciary law is amended by adding a new  article  15-A
to read as follows:
                              ARTICLE 15-A
                STATE COMMISSION ON PROSECUTORIAL CONDUCT
SECTION 499-A. ESTABLISHMENT OF COMMISSION.
        499-B. DEFINITIONS.
        499-C. STATE COMMISSION ON PROSECUTORIAL CONDUCT; ORGANIZATION.
        499-D. FUNCTIONS; POWERS AND DUTIES.
        499-E. PANELS; REFEREES.
        499-F. COMPLAINT; INVESTIGATION; HEARING AND DISPOSITION.
        499-G. CONFIDENTIALITY OF RECORDS.
        499-H. BREACH OF CONFIDENTIALITY OF COMMISSION INFORMATION.
        499-I. RESIGNATION  NOT TO DIVEST COMMISSION OR COURT OF APPEALS
                 OF JURISDICTION.
        499-J. EFFECT.
  S 499-A. ESTABLISHMENT OF COMMISSION. A STATE COMMISSION OF PROSECUTO-
RIAL CONDUCT IS  HEREBY  ESTABLISHED.  THE  COMMISSION  SHALL  HAVE  THE
AUTHORITY  TO  REVIEW  THE  CONDUCT  OF PROSECUTORS UPON THE FILING OF A
COMPLAINT WITH THE COMMISSION  TO  DETERMINE  WHETHER  SAID  CONDUCT  AS
ALLEGED  DEPARTS  FROM THE APPLICABLE STATUTES, CASE LAW, NEW YORK RULES

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

                                                           LBD01145-02-6

S. 24--A                            2

OF PROFESSIONAL RESPONSIBILITY AND RULE 3.8 (SPECIAL RESPONSIBILITIES OF
PROSECUTORS) OF THE MODEL RULES OF PROFESSIONAL CONDUCT OF THE  AMERICAN
BAR ASSOCIATIONS.
  S  499-B.  DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE THE FOLLOWING
TERMS HAVE THE FOLLOWING MEANINGS:
  1. "COMMISSION" MEANS THE STATE COMMISSION ON PROSECUTORIAL CONDUCT.
  2. "PROSECUTOR" MEANS A DISTRICT ATTORNEY OR  ANY  ASSISTANT  DISTRICT
ATTORNEY  OF  ANY  COUNTY  OF THE STATE, AND THE ATTORNEY GENERAL OR ANY
ASSISTANT ATTORNEY GENERAL OF THE STATE, OR ANY INDIVIDUAL  EMPLOYED  BY
OR  SUBJECT  TO  THE  DIRECTION  AND SUPERVISION OF A DISTRICT ATTORNEY,
ASSISTANT DISTRICT ATTORNEY,  ATTORNEY  GENERAL  OR  ASSISTANT  ATTORNEY
GENERAL,  IN  AN ACTION TO EXACT ANY CRIMINAL PENALTY, FINE, SANCTION OR
FORFEITURE.
  3. "HEARING" MEANS A PROCEEDING UNDER SUBDIVISION FOUR OF SECTION FOUR
HUNDRED NINETY-NINE-F OF THIS ARTICLE.
  4. "MEMBER OF THE BAR" MEANS A PERSON ADMITTED TO THE PRACTICE OF  LAW
IN THIS STATE FOR AT LEAST FIVE YEARS.
  S  499-C. STATE COMMISSION ON PROSECUTORIAL CONDUCT; ORGANIZATION.  1.
THE COMMISSION SHALL CONSIST OF ELEVEN MEMBERS, OF  WHOM  TWO  SHALL  BE
APPOINTED BY THE GOVERNOR, TWO BY THE TEMPORARY PRESIDENT OF THE SENATE,
ONE  BY  THE  MINORITY  LEADER  OF THE SENATE, TWO BY THE SPEAKER OF THE
ASSEMBLY, ONE BY THE MINORITY LEADER OF THE ASSEMBLY AND  THREE  BY  THE
CHIEF  JUDGE  OF  THE  COURT OF APPEALS. OF THE MEMBERS APPOINTED BY THE
GOVERNOR ONE SHALL BE A PUBLIC DEFENDER AND ONE SHALL BE  A  PROSECUTOR.
OF  THE  MEMBERS  APPOINTED  BY  THE  CHIEF  JUDGE ONE PERSON SHALL BE A
JUSTICE OF THE APPELLATE DIVISION OF THE SUPREME COURT AND TWO SHALL  BE
JUDGES  OF COURTS OTHER THAN THE COURT OF APPEALS OR APPELLATE DIVISION.
OF THE MEMBERS APPOINTED BY THE LEGISLATIVE LEADERS, THERE SHALL  BE  AN
EQUAL  NUMBER  OF  PROSECUTORS AND ATTORNEYS PROVIDING DEFENSE SERVICES;
PROVIDED, HOWEVER, THAT A TEMPORARY IMBALANCE IN THE NUMBER OF  PROSECU-
TORS  AND  DEFENSE  ATTORNEYS PENDING NEW APPOINTMENTS SHALL NOT PREVENT
THE COMMISSION FROM CONDUCTING BUSINESS.
  2. MEMBERSHIP ON THE COMMISSION BY A PROSECUTOR SHALL  NOT  CONSTITUTE
THE  HOLDING  OF  A PUBLIC OFFICE AND NO PROSECUTOR SHALL BE REQUIRED TO
TAKE AND FILE AN OATH OF OFFICE BEFORE SERVING ON  THE  COMMISSION.  THE
MEMBERS  OF  THE  COMMISSION SHALL ELECT ONE OF THEIR NUMBER TO SERVE AS
CHAIRMAN DURING HIS OR HER TERM OF OFFICE OR FOR A PERIOD OF TWO  YEARS,
WHICHEVER IS SHORTER.
  3. THE PERSONS FIRST APPOINTED BY THE GOVERNOR SHALL HAVE RESPECTIVELY
THREE  AND  FOUR  YEAR  TERMS  AS HE OR SHE SHALL DESIGNATE. THE PERSONS
FIRST APPOINTED BY THE CHIEF JUDGE OF THE COURT OF  APPEALS  SHALL  HAVE
RESPECTIVELY  TWO,  THREE  AND FOUR YEAR TERMS AS HE OR SHE SHALL DESIG-
NATE. THE PERSONS FIRST APPOINTED BY  THE  TEMPORARY  PRESIDENT  OF  THE
SENATE  SHALL  HAVE  RESPECTIVELY THREE AND FOUR YEAR TERMS AS HE OR SHE
SHALL DESIGNATE. THE PERSON FIRST APPOINTED BY THE  MINORITY  LEADER  OF
THE  SENATE  SHALL  HAVE A TWO YEAR TERM. THE PERSONS FIRST APPOINTED BY
THE SPEAKER OF THE ASSEMBLY SHALL HAVE RESPECTIVELY THREE AND FOUR  YEAR
TERMS  AS  HE  OR SHE SHALL DESIGNATE. THE PERSON FIRST APPOINTED BY THE
MINORITY LEADER OF THE ASSEMBLY SHALL HAVE A  THREE    YEAR  TERM.  EACH
MEMBER  OF  THE  COMMISSION  SHALL BE APPOINTED THEREAFTER FOR A TERM OF
FOUR YEARS. COMMISSION MEMBERSHIP OF A JUDGE OR JUSTICE APPOINTED BY THE
GOVERNOR OR THE CHIEF JUDGE SHALL TERMINATE IF  SUCH  MEMBER  CEASES  TO
HOLD  THE JUDICIAL POSITION WHICH QUALIFIED HIM OR HER FOR SUCH APPOINT-
MENT. MEMBERSHIP SHALL ALSO TERMINATE IF A  MEMBER  ATTAINS  A  POSITION
WHICH  WOULD  HAVE RENDERED HIM OR HER INELIGIBLE FOR APPOINTMENT AT THE

S. 24--A                            3

TIME OF HIS OR HER  APPOINTMENT.  A  VACANCY  SHALL  BE  FILLED  BY  THE
APPOINTING OFFICER FOR THE REMAINDER OF THE TERM.
  4. IF A MEMBER OF THE COMMISSION WHO IS A PROSECUTOR IS THE SUBJECT OF
A  COMPLAINT OR INVESTIGATION WITH RESPECT TO HIS OR HER QUALIFICATIONS,
CONDUCT, FITNESS TO PERFORM  OR  PERFORMANCE  OF  HIS  OR  HER  OFFICIAL
DUTIES,  HE  OR  SHE SHALL BE DISQUALIFIED FROM PARTICIPATING IN ANY AND
ALL PROCEEDINGS WITH RESPECT THERETO.  IF A MEMBER OF THE COMMISSION  IS
EMPLOYED  IN  THE  SAME  ORGANIZATION  AS  THE SUBJECT OF A COMPLAINT OR
INVESTIGATION WITH  RESPECT  TO  HIS  OR  HER  QUALIFICATIONS,  CONDUCT,
FITNESS  TO PERFORM, OR PERFORMANCE OF HIS OR HER OFFICIAL DUTIES, HE OR
SHE SHALL BE DISQUALIFIED FROM PARTICIPATING IN ANY AND ALL  PROCEEDINGS
WITH RESPECT THERETO.
  5.  EACH  MEMBER OF THE COMMISSION SHALL SERVE WITHOUT SALARY OR OTHER
COMPENSATION, BUT SHALL BE ENTITLED  TO  RECEIVE  ACTUAL  AND  NECESSARY
EXPENSES INCURRED IN THE DISCHARGE OF HIS OR HER DUTIES.
  6.  FOR ANY ACTION TAKEN PURSUANT TO SUBDIVISIONS FOUR THROUGH NINE OF
SECTION FOUR HUNDRED NINETY-NINE-F OR SUBDIVISION TWO  OF  SECTION  FOUR
HUNDRED  NINETY-NINE-E  OF THIS ARTICLE, EIGHT MEMBERS OF THE COMMISSION
SHALL CONSTITUTE A QUORUM OF THE COMMISSION AND THE CONCURRENCE  OF  SIX
MEMBERS  OF  THE  COMMISSION  SHALL BE NECESSARY. TWO MEMBERS OF A THREE
MEMBER PANEL OF THE COMMISSION SHALL CONSTITUTE A QUORUM  OF  THE  PANEL
AND  THE  CONCURRENCE OF TWO MEMBERS OF THE PANEL SHALL BE NECESSARY FOR
ANY ACTION TAKEN.
  7. THE COMMISSION SHALL APPOINT AND AT PLEASURE MAY REMOVE AN ADMINIS-
TRATOR WHO SHALL BE A MEMBER OF THE BAR  WHO  IS  NOT  A  PROSECUTOR  OR
RETIRED PROSECUTOR. THE ADMINISTRATOR OF THE COMMISSION MAY APPOINT SUCH
DEPUTIES,  ASSISTANTS,  COUNSEL,  INVESTIGATORS  AND  OTHER OFFICERS AND
EMPLOYEES AS HE OR SHE MAY DEEM NECESSARY, PRESCRIBE  THEIR  POWERS  AND
DUTIES,  FIX  THEIR  COMPENSATION AND PROVIDE FOR REIMBURSEMENT OF THEIR
EXPENSES WITHIN THE AMOUNTS APPROPRIATED THEREFOR.
  S 499-D. FUNCTIONS; POWERS AND DUTIES. THE COMMISSION SHALL  HAVE  THE
FOLLOWING FUNCTIONS, POWERS AND DUTIES:
  1.  TO CONDUCT HEARINGS AND INVESTIGATIONS, ADMINISTER OATHS OR AFFIR-
MATIONS, SUBPOENA WITNESSES, COMPEL THEIR ATTENDANCE, EXAMINE THEM UNDER
OATH OR AFFIRMATION AND REQUIRE THE PRODUCTION OF  ANY  BOOKS,  RECORDS,
DOCUMENTS  OR OTHER EVIDENCE THAT IT MAY DEEM RELEVANT OR MATERIAL TO AN
INVESTIGATION; AND THE COMMISSION MAY DESIGNATE ANY OF  ITS  MEMBERS  OR
ANY  MEMBER OF ITS STAFF TO EXERCISE ANY SUCH POWERS, PROVIDED, HOWEVER,
THAT  EXCEPT  AS  IS  OTHERWISE  PROVIDED  IN   SECTION   FOUR   HUNDRED
NINETY-NINE-E  OF  THIS  ARTICLE, ONLY A MEMBER OF THE COMMISSION OR THE
ADMINISTRATOR SHALL EXERCISE THE POWER TO SUBPOENA WITNESSES OR  REQUIRE
THE PRODUCTION OF BOOKS, RECORDS, DOCUMENTS OR OTHER EVIDENCE.
  2. TO CONFER IMMUNITY WHEN THE COMMISSION DEEMS IT NECESSARY AND PROP-
ER  IN  ACCORDANCE  WITH  SECTION  50.20  OF THE CRIMINAL PROCEDURE LAW;
PROVIDED, HOWEVER, THAT AT LEAST FORTY-EIGHT HOURS PRIOR WRITTEN  NOTICE
OF  THE  COMMISSION'S  INTENTION  TO  CONFER  SUCH IMMUNITY IS GIVEN THE
ATTORNEY GENERAL AND THE APPROPRIATE DISTRICT ATTORNEY.
  3. TO REQUEST AND RECEIVE FROM ANY COURT, DEPARTMENT, DIVISION, BOARD,
BUREAU, COMMISSION, OR OTHER AGENCY OF THE STATE OR  POLITICAL  SUBDIVI-
SION  THEREOF  OR  ANY PUBLIC AUTHORITY SUCH ASSISTANCE, INFORMATION AND
DATA AS WILL ENABLE IT PROPERLY TO CARRY OUT ITS FUNCTIONS,  POWERS  AND
DUTIES.
  4.  TO  REPORT  ANNUALLY,  ON OR BEFORE THE FIRST DAY OF MARCH IN EACH
YEAR AND AT SUCH OTHER TIMES AS THE COMMISSION SHALL DEEM NECESSARY,  TO
THE  GOVERNOR,  THE  LEGISLATURE  AND  THE  CHIEF  JUDGE OF THE COURT OF
APPEALS, WITH RESPECT TO PROCEEDINGS WHICH HAVE BEEN FINALLY  DETERMINED

S. 24--A                            4

BY  THE COMMISSION. SUCH REPORTS MAY INCLUDE LEGISLATIVE AND ADMINISTRA-
TIVE RECOMMENDATIONS. THE CONTENTS OF THE ANNUAL REPORT  AND  ANY  OTHER
REPORT  SHALL  CONFORM  TO  THE  PROVISIONS  OF THIS ARTICLE RELATING TO
CONFIDENTIALITY.
  5.  TO  ADOPT, PROMULGATE, AMEND AND RESCIND RULES AND PROCEDURES, NOT
OTHERWISE INCONSISTENT WITH LAW, NECESSARY TO CARRY OUT  THE  PROVISIONS
AND  PURPOSES  OF THIS ARTICLE.   ALL SUCH RULES AND PROCEDURES SHALL BE
FILED IN THE OFFICES OF THE CHIEF ADMINISTRATOR OF THE  COURTS  AND  THE
SECRETARY OF STATE.
  6.  TO  DO  ALL OTHER THINGS NECESSARY AND CONVENIENT TO CARRY OUT ITS
FUNCTIONS, POWERS AND DUTIES EXPRESSLY SET FORTH IN THIS ARTICLE.
  S 499-E. PANELS; REFEREES. 1. THE COMMISSION MAY DELEGATE ANY  OF  ITS
FUNCTIONS,  POWERS AND DUTIES TO A PANEL OF THREE OF ITS MEMBERS, ONE OF
WHOM SHALL BE A MEMBER OF THE BAR, EXCEPT THAT  NO  PANEL  SHALL  CONFER
IMMUNITY IN ACCORDANCE WITH SECTION 50.20 OF THE CRIMINAL PROCEDURE LAW.
NO PANEL SHALL BE AUTHORIZED TO TAKE ANY ACTION PURSUANT TO SUBDIVISIONS
FOUR  THROUGH NINE OF SECTION FOUR HUNDRED NINETY-NINE-F OF THIS ARTICLE
OR SUBDIVISION TWO OF THIS SECTION.
  2. THE COMMISSION MAY DESIGNATE A MEMBER OF  THE  BAR  WHO  IS  NOT  A
PROSECUTOR  OR  A  MEMBER OF THE COMMISSION OR ITS STAFF AS A REFEREE TO
HEAR AND REPORT TO THE COMMISSION IN ACCORDANCE WITH THE  PROVISIONS  OF
SECTION  FOUR  HUNDRED NINETY-NINE-F OF THIS ARTICLE. SUCH REFEREE SHALL
BE EMPOWERED TO CONDUCT  HEARINGS,  ADMINISTER  OATHS  OR  AFFIRMATIONS,
SUBPOENA  WITNESSES, COMPEL THEIR ATTENDANCE, EXAMINE THEM UNDER OATH OR
AFFIRMATION AND REQUIRE THE PRODUCTION OF ANY BOOKS, RECORDS,  DOCUMENTS
OR  OTHER EVIDENCE THAT THE REFEREE MAY DEEM RELEVANT OR MATERIAL TO THE
SUBJECT OF THE HEARING.
  S 499-F. COMPLAINT; INVESTIGATION; HEARING AND DISPOSITION.  1.    THE
COMMISSION SHALL RECEIVE, INITIATE, INVESTIGATE AND HEAR COMPLAINTS WITH
RESPECT  TO THE CONDUCT, QUALIFICATIONS, FITNESS TO PERFORM, OR PERFORM-
ANCE OF OFFICIAL DUTIES OF ANY PROSECUTOR,  AND  MAY  DETERMINE  THAT  A
PROSECUTOR  BE ADMONISHED, OR CENSURED; AND MAKE A RECOMMENDATION TO THE
GOVERNOR THAT A PROSECUTOR  BE  REMOVED  FROM  OFFICE  FOR  CAUSE,  FOR,
INCLUDING, BUT NOT LIMITED TO, MISCONDUCT IN OFFICE, AS EVIDENCED BY HIS
OR  HER DEPARTURE FROM HIS OR HER OBLIGATIONS UNDER APPROPRIATE STATUTE,
CASELAW, AND/OR RULE 3.8 SPECIAL RESPONSIBILITIES OF  PROSECUTORS  WHICH
IS  PART  OF THE MODEL RULES OF PROFESSIONAL CONDUCT OF THE AMERICAN BAR
ASSOCIATION, PERSISTENT FAILURE TO PERFORM HIS OR HER  DUTIES,  HABITUAL
INTEMPERANCE  AND CONDUCT, IN AND OUTSIDE OF HIS OR HER OFFICE, PREJUDI-
CIAL TO THE ADMINISTRATION OF JUSTICE, OR THAT A PROSECUTOR  BE  RETIRED
FOR  MENTAL  OR PHYSICAL DISABILITY PREVENTING THE PROPER PERFORMANCE OF
HIS OR HER PROSECUTORIAL DUTIES. A COMPLAINT SHALL  BE  IN  WRITING  AND
SIGNED  BY  THE COMPLAINANT AND, IF DIRECTED BY THE COMMISSION, SHALL BE
VERIFIED. UPON RECEIPT OF A COMPLAINT (A) THE COMMISSION  SHALL  CONDUCT
AN INVESTIGATION OF THE COMPLAINT; OR (B) THE COMMISSION MAY DISMISS THE
COMPLAINT  IF  IT DETERMINES THAT THE COMPLAINT ON ITS FACE LACKS MERIT.
IF THE COMPLAINT IS  DISMISSED,  THE  COMMISSION  SHALL  SO  NOTIFY  THE
COMPLAINANT. IF THE COMMISSION SHALL HAVE NOTIFIED THE PROSECUTOR OF THE
COMPLAINT,  THE  COMMISSION  SHALL  ALSO  NOTIFY  THE PROSECUTOR OF SUCH
DISMISSAL.
  2. THE COMMISSION MAY, ON ITS OWN MOTION, INITIATE AN INVESTIGATION OF
A PROSECUTOR WITH RESPECT TO HIS OR HER QUALIFICATIONS, CONDUCT, FITNESS
TO PERFORM OR THE PERFORMANCE OF HIS OR HER OFFICIAL  DUTIES.  PRIOR  TO
INITIATING  ANY SUCH INVESTIGATION, THE COMMISSION SHALL FILE AS PART OF
ITS RECORD A WRITTEN COMPLAINT,  SIGNED  BY  THE  ADMINISTRATOR  OF  THE

S. 24--A                            5

COMMISSION,  WHICH  COMPLAINT SHALL SERVE AS THE BASIS FOR SUCH INVESTI-
GATION.
  3.  IN  THE COURSE OF AN INVESTIGATION, THE COMMISSION MAY REQUIRE THE
APPEARANCE OF THE PROSECUTOR INVOLVED BEFORE  IT,  IN  WHICH  EVENT  THE
PROSECUTOR  SHALL  BE NOTIFIED IN WRITING OF HIS OR HER REQUIRED APPEAR-
ANCE, EITHER PERSONALLY, AT LEAST THREE DAYS PRIOR TO  SUCH  APPEARANCE,
OR BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT LEAST FIVE DAYS PRIOR
TO  SUCH  APPEARANCE.  IN  EITHER  CASE A COPY OF THE COMPLAINT SHALL BE
SERVED UPON THE PROSECUTOR AT THE TIME OF SUCH NOTIFICATION. THE  PROSE-
CUTOR  SHALL  HAVE THE RIGHT TO BE REPRESENTED BY COUNSEL DURING ANY AND
ALL STAGES OF THE INVESTIGATION  IN  WHICH  HIS  OR  HER  APPEARANCE  IS
REQUIRED  AND  TO  PRESENT EVIDENTIARY DATA AND MATERIAL RELEVANT TO THE
COMPLAINT. A TRANSCRIPT SHALL BE MADE  AND  KEPT  WITH  RESPECT  TO  ALL
PROCEEDINGS  AT WHICH TESTIMONY OR STATEMENTS UNDER OATH OF ANY PARTY OR
WITNESS SHALL BE TAKEN, AND THE TRANSCRIPT OF THE PROSECUTOR'S TESTIMONY
SHALL BE MADE AVAILABLE TO THE PROSECUTOR WITHOUT COST. SUCH  TRANSCRIPT
SHALL  BE  CONFIDENTIAL  EXCEPT  AS  OTHERWISE PERMITTED BY SECTION FOUR
HUNDRED NINETY-NINE-G OF THIS ARTICLE.
  4. IF IN THE COURSE OF AN  INVESTIGATION,  THE  COMMISSION  DETERMINES
THAT  A  HEARING  IS  WARRANTED  IT  SHALL  DIRECT THAT A FORMAL WRITTEN
COMPLAINT SIGNED AND VERIFIED BY THE ADMINISTRATOR BE DRAWN  AND  SERVED
UPON  THE  PROSECUTOR  INVOLVED, EITHER PERSONALLY OR BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED. THE PROSECUTOR SHALL FILE A WRITTEN ANSWER  TO
THE  COMPLAINT  WITH  THE COMMISSION WITHIN TWENTY DAYS OF SUCH SERVICE.
IF, UPON RECEIPT OF THE ANSWER,  OR  UPON  EXPIRATION  OF  THE  TIME  TO
ANSWER,  THE COMMISSION SHALL DIRECT THAT A HEARING BE HELD WITH RESPECT
TO THE COMPLAINT, THE PROSECUTOR INVOLVED SHALL BE NOTIFIED  IN  WRITING
OF THE DATE OF THE HEARING EITHER PERSONALLY, AT LEAST TWENTY DAYS PRIOR
THERETO,  OR BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT LEAST TWEN-
TY-TWO DAYS PRIOR THERETO. UPON THE WRITTEN REQUEST OF  THE  PROSECUTOR,
THE  COMMISSION  SHALL,  AT  LEAST FIVE DAYS PRIOR TO THE HEARING OR ANY
ADJOURNED DATE THEREOF, MAKE AVAILABLE TO THE  PROSECUTOR  WITHOUT  COST
COPIES  OF ALL DOCUMENTS WHICH THE COMMISSION INTENDS TO PRESENT AT SUCH
HEARING AND ANY WRITTEN STATEMENTS MADE BY WITNESSES WHO WILL BE  CALLED
TO  GIVE TESTIMONY BY THE COMMISSION. THE COMMISSION SHALL, IN ANY CASE,
MAKE AVAILABLE TO THE PROSECUTOR AT LEAST FIVE DAYS PRIOR TO THE HEARING
OR ANY ADJOURNED DATE THEREOF ANY EXCULPATORY EVIDENTIARY DATA AND MATE-
RIAL RELEVANT TO THE COMPLAINT. THE FAILURE OF THE COMMISSION TO  TIMELY
FURNISH  ANY  DOCUMENTS,  STATEMENTS AND/OR EXCULPATORY EVIDENTIARY DATA
AND MATERIAL PROVIDED FOR HEREIN SHALL NOT AFFECT THE  VALIDITY  OF  ANY
PROCEEDINGS  BEFORE  THE  COMMISSION  PROVIDED  THAT SUCH FAILURE IS NOT
SUBSTANTIALLY PREJUDICIAL TO THE  PROSECUTOR.  THE  COMPLAINANT  MAY  BE
NOTIFIED  OF  THE  HEARING AND UNLESS HE OR SHE SHALL BE SUBPOENAED AS A
WITNESS BY THE PROSECUTOR, HIS OR HER PRESENCE THEREAT SHALL  BE  WITHIN
THE DISCRETION OF THE COMMISSION. THE HEARING SHALL NOT BE PUBLIC UNLESS
THE  PROSECUTOR  INVOLVED SHALL SO DEMAND IN WRITING. AT THE HEARING THE
COMMISSION MAY TAKE THE TESTIMONY OF WITNESSES AND  RECEIVE  EVIDENTIARY
DATA  AND  MATERIAL RELEVANT TO THE COMPLAINT. THE PROSECUTOR SHALL HAVE
THE RIGHT TO BE REPRESENTED BY COUNSEL DURING ANY AND ALL STAGES OF  THE
HEARING AND SHALL HAVE THE RIGHT TO CALL AND CROSS-EXAMINE WITNESSES AND
PRESENT EVIDENTIARY DATA AND MATERIAL RELEVANT TO THE COMPLAINT. A TRAN-
SCRIPT OF THE PROCEEDINGS AND OF THE TESTIMONY OF WITNESSES AT THE HEAR-
ING SHALL BE TAKEN AND KEPT WITH THE RECORDS OF THE COMMISSION.
  5.  SUBJECT  TO  THE APPROVAL OF THE COMMISSION, THE ADMINISTRATOR AND
THE PROSECUTOR MAY AGREE ON A STATEMENT OF FACTS AND  MAY  STIPULATE  IN
WRITING THAT THE HEARING SHALL BE WAIVED. IN SUCH A CASE, THE COMMISSION

S. 24--A                            6

SHALL MAKE ITS DETERMINATION UPON THE PLEADINGS AND THE AGREED STATEMENT
OF FACTS.
  6.  IF,  AFTER  A FORMAL WRITTEN COMPLAINT HAS BEEN SERVED PURSUANT TO
SUBDIVISION FOUR OF THIS SECTION, OR DURING THE COURSE  OF  OR  AFTER  A
HEARING,  THE COMMISSION DETERMINES THAT NO FURTHER ACTION IS NECESSARY,
THE COMPLAINT SHALL BE DISMISSED AND THE COMPLAINANT AND THE  PROSECUTOR
SHALL BE SO NOTIFIED IN WRITING.
  7.  AFTER A HEARING, THE COMMISSION MAY DETERMINE THAT A PROSECUTOR BE
ADMONISHED OR CENSURED, OR MAY RECOMMEND TO THE GOVERNOR THAT A PROSECU-
TOR BE REMOVED FROM OFFICE FOR CAUSE. THE COMMISSION SHALL TRANSMIT  ITS
WRITTEN  DETERMINATION,  TOGETHER  WITH ITS FINDINGS OF FACT AND CONCLU-
SIONS OF LAW AND THE RECORD OF THE PROCEEDINGS UPON WHICH  ITS  DETERMI-
NATION  IS  BASED,  TO THE CHIEF JUDGE OF THE COURT OF APPEALS WHO SHALL
CAUSE A COPY THEREOF TO BE SERVED  EITHER  PERSONALLY  OR  BY  CERTIFIED
MAIL,  RETURN  RECEIPT  REQUESTED,  ON  THE  PROSECUTOR  INVOLVED.  UPON
COMPLETION OF SERVICE, THE DETERMINATION OF THE COMMISSION, ITS FINDINGS
AND CONCLUSIONS AND THE RECORD OF ITS PROCEEDINGS SHALL BE  MADE  PUBLIC
AND  SHALL  BE  MADE  AVAILABLE  FOR  PUBLIC INSPECTION AT THE PRINCIPAL
OFFICE OF THE COMMISSION AND AT THE OFFICE OF THE CLERK OF THE COURT  OF
APPEALS.  THE PROSECUTOR INVOLVED MAY EITHER ACCEPT THE DETERMINATION OF
THE COMMISSION OR MAKE WRITTEN REQUEST TO THE CHIEF JUDGE, WITHIN THIRTY
DAYS AFTER RECEIPT OF SUCH DETERMINATION, FOR A REVIEW  THEREOF  BY  THE
COURT  OF APPEALS. IF THE COMMISSION HAS DETERMINED THAT A PROSECUTOR BE
ADMONISHED OR CENSURED, AND IF THE PROSECUTOR ACCEPTS SUCH DETERMINATION
OR FAILS TO REQUEST A REVIEW  THEREOF  BY  THE  COURT  OF  APPEALS,  THE
COMMISSION  SHALL THEREUPON ADMONISH OR CENSURE HIM OR HER IN ACCORDANCE
WITH ITS FINDINGS. IF THE COMMISSION HAS AND THE COURT OF APPEALS RECOM-
MENDS THAT A PROSECUTOR BE REMOVED IT SHALL TRANSMIT THE COMMISSION  AND
COURT  OF APPEALS FINDINGS TO THE GOVERNOR WHO WILL INDEPENDENTLY DETER-
MINE WHETHER THE PROSECUTOR SHOULD BE REMOVED OR RETIRED.
  8. IF THE PROSECUTOR REQUESTS A REVIEW OF  THE  DETERMINATION  OF  THE
COMMISSION,  IN  ITS  REVIEW  OF  A DETERMINATION OF THE COMMISSION, THE
COURT OF APPEALS SHALL REVIEW THE  COMMISSION'S  FINDINGS  OF  FACT  AND
CONCLUSIONS  OF  LAW  ON  THE  RECORD  OF THE PROCEEDINGS UPON WHICH THE
COMMISSION'S DETERMINATION WAS BASED. AFTER SUCH REVIEW, THE  COURT  MAY
ACCEPT  OR  REJECT  THE DETERMINED SANCTION; IMPOSE A DIFFERENT SANCTION
INCLUDING ADMONITION OR CENSURE, RECOMMEND REMOVAL OR RETIREMENT FOR THE
REASONS SET FORTH IN SUBDIVISION ONE OF THIS SECTION; OR IMPOSE NO SANC-
TION.  HOWEVER, IF THE COURT OF APPEALS DETERMINES  REMOVAL  OR  RETIRE-
MENT, IT SHALL, TOGETHER WITH THE COMMISSION, TRANSMIT THE ENTIRE RECORD
TO  THE  GOVERNOR  WHO WILL INDEPENDENTLY DETERMINE WHETHER A PROSECUTOR
SHOULD BE REMOVED OR RETIRED.
  9. (A) THE COURT OF APPEALS MAY SUSPEND A PROSECUTOR  FROM  EXERCISING
THE  POWERS  OF HIS OR HER OFFICE WHILE THERE IS PENDING A DETERMINATION
BY THE COMMISSION FOR HIS OR HER REMOVAL OR RETIREMENT, OR WHILE  HE  OR
SHE IS CHARGED IN THIS STATE WITH A FELONY BY AN INDICTMENT OR AN INFOR-
MATION FILED PURSUANT TO SECTION SIX OF ARTICLE ONE OF THE CONSTITUTION.
THE  SUSPENSION  SHALL  CONTINUE  UPON CONVICTION AND, IF THE CONVICTION
BECOMES FINAL, HE OR SHE SHALL BE REMOVED FROM OFFICE BY  THE  GOVERNOR.
THE  SUSPENSION  SHALL BE TERMINATED UPON REVERSAL OF THE CONVICTION AND
DISMISSAL OF THE ACCUSATORY INSTRUMENT.
  (B) UPON THE RECOMMENDATION OF THE COMMISSION OR ON  ITS  OWN  MOTION,
THE COURT MAY SUSPEND A PROSECUTOR FROM OFFICE WHEN HE OR SHE IS CHARGED
WITH A CRIME PUNISHABLE AS A FELONY UNDER THE LAWS OF THIS STATE, OR ANY
OTHER CRIME WHICH INVOLVES MORAL TURPITUDE. THE SUSPENSION SHALL CONTIN-
UE UPON CONVICTION AND, IF THE CONVICTION BECOMES FINAL, HE OR SHE SHALL

S. 24--A                            7

BE REMOVED FROM OFFICE. THE SUSPENSION SHALL BE TERMINATED UPON REVERSAL
OF THE CONVICTION AND DISMISSAL OF THE ACCUSATORY INSTRUMENT.
  (C)  A  PROSECUTOR  WHO  IS  SUSPENDED  FROM OFFICE BY THE COURT SHALL
RECEIVE HIS OR HER SALARY DURING SUCH PERIOD OF SUSPENSION,  UNLESS  THE
COURT  DIRECTS  OTHERWISE. IF THE COURT HAS SO DIRECTED AND SUCH SUSPEN-
SION IS THEREAFTER TERMINATED, THE COURT MAY DIRECT THAT HE OR SHE SHALL
BE PAID HIS OR HER SALARY FOR SUCH PERIOD OF SUSPENSION.
  (D) NOTHING IN THIS SUBDIVISION  SHALL  PREVENT  THE  COMMISSION  FROM
DETERMINING  THAT  A PROSECUTOR BE ADMONISHED OR CENSURED OR PREVENT THE
COMMISSION FROM RECOMMENDING REMOVAL OR RETIREMENT PURSUANT TO  SUBDIVI-
SION SEVEN OF THIS SECTION.
  10.  IF DURING THE COURSE OF OR AFTER AN INVESTIGATION OR HEARING, THE
COMMISSION DETERMINES THAT  THE  COMPLAINT  OR  ANY  ALLEGATION  THEREOF
WARRANTS  ACTION, OTHER THAN IN ACCORDANCE WITH THE PROVISIONS OF SUBDI-
VISIONS SEVEN THROUGH NINE OF THIS SECTION, WITHIN THE POWERS OF: (A)  A
PERSON  HAVING  ADMINISTRATIVE JURISDICTION OVER THE PROSECUTOR INVOLVED
IN THE COMPLAINT; OR (B) AN APPELLATE DIVISION OF THE SUPREME COURT;  OR
(C)  A  PRESIDING JUSTICE OF AN APPELLATE DIVISION OF THE SUPREME COURT;
OR (D) THE CHIEF JUDGE OF THE COURT OF  APPEALS;  OR  (E)  THE  GOVERNOR
PURSUANT  TO  SUBDIVISION (B) OF SECTION THIRTEEN OF ARTICLE THIRTEEN OF
THE CONSTITUTION; OR (F) AN APPLICABLE  DISTRICT  ATTORNEY'S  OFFICE  OR
OTHER  PROSECUTING  AGENCY, THE COMMISSION SHALL REFER SUCH COMPLAINT OR
THE APPROPRIATE ALLEGATIONS THEREOF AND ANY EVIDENCE OR MATERIAL RELATED
THERETO TO SUCH PERSON, AGENCY OR COURT FOR SUCH ACTION AS MAY BE DEEMED
PROPER OR NECESSARY.
  11. THE COMMISSION SHALL NOTIFY THE COMPLAINANT OF ITS DISPOSITION  OF
THE COMPLAINT.
  12.  IN THE EVENT OF REMOVAL FROM OFFICE BY THE GOVERNOR OF ANY PROSE-
CUTOR, A VACANCY SHALL EXIST PURSUANT TO ARTICLE  THREE  OF  THE  PUBLIC
OFFICERS LAW.
  S  499-G.  CONFIDENTIALITY OF RECORDS. EXCEPT AS HEREINAFTER PROVIDED,
ALL COMPLAINTS, CORRESPONDENCE, COMMISSION PROCEEDINGS  AND  TRANSCRIPTS
THEREOF,  OTHER  PAPERS  AND DATA AND RECORDS OF THE COMMISSION SHALL BE
CONFIDENTIAL AND SHALL NOT BE MADE AVAILABLE TO ANY PERSON EXCEPT PURSU-
ANT TO SECTION FOUR HUNDRED NINETY-NINE-F OF THIS ARTICLE.  THE  COMMIS-
SION  AND  ITS DESIGNATED STAFF PERSONNEL SHALL HAVE ACCESS TO CONFIDEN-
TIAL MATERIAL IN THE PERFORMANCE OF THEIR POWERS AND  DUTIES.    IF  THE
PROSECUTOR  WHO  IS  THE  SUBJECT OF A COMPLAINT SO REQUESTS IN WRITING,
COPIES OF THE COMPLAINT, THE TRANSCRIPTS OF HEARINGS BY  THE  COMMISSION
THEREON,  IF  ANY,  AND  THE  DISPOSITIVE  ACTION OF THE COMMISSION WITH
RESPECT TO THE COMPLAINT, SUCH COPIES WITH ANY REFERENCE TO THE IDENTITY
OF ANY PERSON WHO DID NOT  PARTICIPATE  AT  ANY  SUCH  HEARING  SUITABLY
DELETED  THEREFROM,  EXCEPT THE SUBJECT PROSECUTOR OR COMPLAINANT, SHALL
BE MADE AVAILABLE FOR INSPECTION AND COPYING TO THE PUBLIC,  OR  TO  ANY
PERSON, AGENCY OR BODY DESIGNATED BY SUCH PROSECUTOR.
  S  499-H.  BREACH OF CONFIDENTIALITY OF COMMISSION INFORMATION. 1. ANY
STAFF MEMBER, EMPLOYEE OR AGENT OF THE STATE COMMISSION ON PROSECUTORIAL
CONDUCT WHO VIOLATES ANY OF THE PROVISIONS OF SECTION FOUR HUNDRED NINE-
TY-NINE-G OF THIS ARTICLE SHALL BE  SUBJECT  TO  A  REPRIMAND,  A  FINE,
SUSPENSION OR REMOVAL BY THE COMMISSION.
  2.  WITHIN TEN DAYS AFTER THE COMMISSION HAS ACQUIRED KNOWLEDGE THAT A
STAFF MEMBER, EMPLOYEE OR AGENT  OF  THE  COMMISSION  HAS  OR  MAY  HAVE
BREACHED  THE  PROVISIONS  OF SECTION FOUR HUNDRED NINETY-NINE-G OF THIS
ARTICLE, WRITTEN CHARGES AGAINST SUCH STAFF MEMBER,  EMPLOYEE  OR  AGENT
SHALL BE PREPARED AND SIGNED BY THE CHAIRMAN OF THE COMMISSION AND FILED
WITH  THE  COMMISSION.  WITHIN  FIVE  DAYS AFTER RECEIPT OF CHARGES, THE

S. 24--A                            8

COMMISSION SHALL DETERMINE, BY A VOTE OF THE MAJORITY OF ALL THE MEMBERS
OF THE COMMISSION, WHETHER PROBABLE CAUSE FOR SUCH  CHARGES  EXISTS.  IF
SUCH DETERMINATION IS AFFIRMATIVE, WITHIN FIVE DAYS THEREAFTER A WRITTEN
STATEMENT  SPECIFYING  THE  CHARGES  IN  DETAIL AND OUTLINING HIS OR HER
RIGHTS UNDER THIS SECTION  SHALL  BE  FORWARDED  TO  THE  ACCUSED  STAFF
MEMBER,  EMPLOYEE OR AGENT BY CERTIFIED MAIL. THE COMMISSION MAY SUSPEND
THE STAFF MEMBER, EMPLOYEE OR AGENT, WITH OR WITHOUT  PAY,  PENDING  THE
FINAL DETERMINATION OF THE CHARGES. WITHIN TEN DAYS AFTER RECEIPT OF THE
STATEMENT  OF  CHARGES, THE STAFF MEMBER, EMPLOYEE OR AGENT SHALL NOTIFY
THE COMMISSION IN WRITING WHETHER HE OR SHE DESIRES  A  HEARING  ON  THE
CHARGES.  THE  FAILURE  OF THE STAFF MEMBER, EMPLOYEE OR AGENT TO NOTIFY
THE COMMISSION OF HIS OR HER DESIRE TO HAVE A HEARING WITHIN SUCH PERIOD
OF TIME SHALL BE DEEMED A WAIVER OF THE RIGHT TO A HEARING. IF THE HEAR-
ING HAS BEEN WAIVED, THE COMMISSION SHALL PROCEED, WITHIN TEN DAYS AFTER
SUCH WAIVER, BY A VOTE OF A MAJORITY OF ALL THE MEMBERS OF SUCH  COMMIS-
SION,  TO  DETERMINE  THE  CHARGES AND FIX THE PENALTY OR PUNISHMENT, IF
ANY, TO BE IMPOSED AS HEREINAFTER PROVIDED.
  3. UPON RECEIPT OF A REQUEST FOR A HEARING, THE COMMISSION SHALL SCHE-
DULE A HEARING, TO BE HELD AT THE COMMISSION OFFICES, WITHIN TWENTY DAYS
AFTER RECEIPT OF THE REQUEST THEREFOR, AND SHALL IMMEDIATELY  NOTIFY  IN
WRITING THE STAFF MEMBER, EMPLOYEE OR AGENT OF THE TIME AND PLACE THERE-
OF.
  4.  THE  COMMISSION  SHALL HAVE THE POWER TO ESTABLISH NECESSARY RULES
AND PROCEDURES FOR THE CONDUCT OF  HEARINGS  UNDER  THIS  SECTION.  SUCH
RULES SHALL NOT REQUIRE COMPLIANCE WITH TECHNICAL RULES OF EVIDENCE. ALL
SUCH  HEARINGS  SHALL  BE  HELD BEFORE A HEARING PANEL COMPOSED OF THREE
MEMBERS OF THE COMMISSION SELECTED BY THE COMMISSION. EACH HEARING SHALL
BE CONDUCTED BY THE CHAIRMAN OF THE PANEL WHO SHALL BE SELECTED  BY  THE
PANEL.  THE  STAFF  MEMBER,  EMPLOYEE  OR  AGENT SHALL HAVE A REASONABLE
OPPORTUNITY TO DEFEND HIMSELF AND TO TESTIFY ON HIS OR HER  OWN  BEHALF.
HE  OR  SHE  SHALL  ALSO HAVE THE RIGHT TO BE REPRESENTED BY COUNSEL, TO
SUBPOENA WITNESSES AND TO CROSS-EXAMINE WITNESSES. ALL  TESTIMONY  TAKEN
SHALL BE UNDER OATH WHICH THE CHAIRMAN OF THE PANEL IS HEREBY AUTHORIZED
TO  ADMINISTER.  A RECORD OF THE PROCEEDINGS SHALL BE MADE AND A COPY OF
THE TRANSCRIPT OF THE HEARING SHALL, UPON WRITTEN REQUEST, BE  FURNISHED
WITHOUT CHARGE TO THE STAFF MEMBER, EMPLOYEE OR AGENT INVOLVED.
  5. WITHIN FIVE DAYS AFTER THE CONCLUSION OF A HEARING, THE PANEL SHALL
FORWARD  A REPORT OF THE HEARING, INCLUDING ITS FINDINGS AND RECOMMENDA-
TIONS, INCLUDING ITS RECOMMENDATIONS AS TO PENALTY OR PUNISHMENT, IF ONE
IS WARRANTED, TO THE COMMISSION AND TO THE ACCUSED STAFF MEMBER, EMPLOY-
EE OR AGENT. WITHIN TEN DAYS AFTER RECEIPT OF SUCH REPORT THE COMMISSION
SHALL DETERMINE WHETHER IT SHALL IMPLEMENT THE  RECOMMENDATIONS  OF  THE
PANEL.  IF  THE COMMISSION SHALL DETERMINE TO IMPLEMENT SUCH RECOMMENDA-
TIONS, WHICH SHALL INCLUDE THE PENALTY  OR  PUNISHMENT,  IF  ANY,  OF  A
REPRIMAND, A FINE, SUSPENSION FOR A FIXED TIME WITHOUT PAY OR DISMISSAL,
IT SHALL DO SO WITHIN FIVE DAYS AFTER SUCH DETERMINATION. IF THE CHARGES
AGAINST  THE  STAFF  MEMBER,  EMPLOYEE OR AGENT ARE DISMISSED, HE OR SHE
SHALL BE RESTORED TO HIS OR HER POSITION WITH FULL PAY FOR ANY PERIOD OF
SUSPENSION WITHOUT PAY AND THE CHARGES SHALL BE EXPUNGED FROM HIS OR HER
RECORD.
  6. THE ACCUSED STAFF MEMBER, EMPLOYEE OR AGENT MAY SEEK REVIEW OF  THE
RECOMMENDATION BY THE COMMISSION BY WAY OF A SPECIAL PROCEEDING PURSUANT
TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
  S  499-I.  RESIGNATION NOT TO DIVEST COMMISSION OR COURT OF APPEALS OF
JURISDICTION.  THE JURISDICTION OF THE COURT OF APPEALS AND THE  COMMIS-
SION  PURSUANT  TO  THIS  ARTICLE  SHALL CONTINUE NOTWITHSTANDING THAT A

S. 24--A                            9

PROSECUTOR RESIGNS FROM OFFICE AFTER A RECOMMENDATION BY THE  COMMISSION
THAT  THE  PROSECUTOR BE REMOVED FROM OFFICE HAS BEEN TRANSMITTED TO THE
CHIEF JUDGE OF THE COURT OF APPEALS, OR IN ANY CASE IN WHICH THE COMMIS-
SION'S  RECOMMENDATION  THAT  A PROSECUTOR SHOULD BE REMOVED FROM OFFICE
SHALL BE TRANSMITTED TO THE CHIEF JUDGE OF THE COURT OF  APPEALS  WITHIN
ONE  HUNDRED TWENTY DAYS AFTER RECEIPT BY THE CHIEF ADMINISTRATOR OF THE
COURTS OF THE RESIGNATION OF SUCH PROSECUTOR. ANY DETERMINATION  BY  THE
GOVERNOR  THAT  A  PROSECUTOR  WHO  HAS  RESIGNED SHOULD BE REMOVED FROM
OFFICE SHALL RENDER SUCH PROSECUTOR INELIGIBLE TO HOLD ANY OTHER  PROSE-
CUTORIAL OFFICE.
  S  499-J.  EFFECT.  1.  THE POWERS, DUTIES, AND FUNCTIONS OF THE STATE
COMMISSION ON PROSECUTORIAL CONDUCT SHALL NOT SUPERSEDE THE  POWERS  AND
DUTIES  OF THE GOVERNOR AS OUTLINED IN SECTION THIRTEEN OF ARTICLE THIR-
TEEN OF THE NEW YORK STATE CONSTITUTION.
  2. REMOVAL OR RETIREMENT OF A  PROSECUTOR  PURSUANT  TO  THIS  ARTICLE
SHALL  BE CONSIDERED A REMOVAL FROM OFFICE PURSUANT TO SECTION THIRTY OF
THE PUBLIC OFFICERS LAW.
  S 2. If any part or provision of this act is adjudged by  a  court  of
competent jurisdiction to be unconstitutional or otherwise invalid, such
judgment  shall not affect or impair any other part or provision of this
act, but shall be confined in its operation to such part or provision.
  S 3. This act shall take effect January 1, 2017.