Assembly Bill A8179

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

                                  8179

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                           September 27, 2013
                               ___________

Introduced  by M. of A. PERRY -- read once and referred 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. DEFINITIONS.
        499-B. STATE COMMISSION ON PROSECUTORIAL CONDUCT; ORGANIZATION.
        499-C. EFFECT.
        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.
  S 499-A. 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 ANY PERSON WHO REPRESENTS THE STATE OR A POLI-
TICAL SUBDIVISION OF THE STATE IN AN ACTION TO EXACT  A  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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11393-03-3

              

A. 8179                             2

  S 499-B. STATE COMMISSION ON PROSECUTORIAL CONDUCT; ORGANIZATION.   1.
A  STATE  COMMISSION ON PROSECUTORIAL CONDUCT IS HEREBY ESTABLISHED. THE
COMMISSION SHALL CONSIST OF  ELEVEN  MEMBERS,  OF  WHOM  FOUR  SHALL  BE
APPOINTED BY THE GOVERNOR, ONE BY THE TEMPORARY PRESIDENT OF THE SENATE,
ONE  BY  THE  MINORITY  LEADER  OF THE SENATE, ONE 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 PERSON SHALL BE A MEMBER OF THE BAR OF THE STATE BUT NOT  A
PROSECUTOR,  ONE SHALL NOT BE A MEMBER OF THE BAR, 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. 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  IMBAL-
ANCE  IN  THE  NUMBER  OF  PROSECUTORS 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
ONE,  TWO,  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
DESIGNATE.  THE PERSON FIRST APPOINTED BY THE TEMPORARY PRESIDENT OF THE
SENATE SHALL HAVE A ONE YEAR TERM. THE PERSON  FIRST  APPOINTED  BY  THE
MINORITY  LEADER  OF  THE  SENATE SHALL HAVE A TWO YEAR TERM. THE PERSON
FIRST APPOINTED BY THE SPEAKER OF THE ASSEMBLY SHALL HAVE  A  FOUR  YEAR
TERM.  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  PROSECUTOR  APPOINTED BY THE GOVERNOR OR THE CHIEF JUDGE SHALL TERMI-
NATE IF SUCH MEMBER CEASES TO HOLD THE POSITION WHICH QUALIFIED HIM  FOR
SUCH  APPOINTMENT. MEMBERSHIP SHALL ALSO TERMINATE IF A MEMBER ATTAINS A
POSITION WHICH WOULD HAVE RENDERED HIM 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,
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.

A. 8179                             3

  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-C.  EFFECT.  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 THREE OF ARTICLE FOUR OF
THE NEW YORK STATE CONSTITUTION.
  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.
  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.

A. 8179                             4

  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, CENSURED OR REMOVED  FROM  OFFICE  FOR  CAUSE,
INCLUDING,  BUT NOT LIMITED TO, MISCONDUCT IN OFFICE, PERSISTENT FAILURE
TO PERFORM HIS OR HER DUTIES, HABITUAL INTEMPERANCE AND CONDUCT, IN  AND
OUTSIDE  OF  HIS  OR  HER  OFFICE,  PREJUDICIAL TO THE ADMINISTRATION OF
JUSTICE, OR THAT A PROSECUTOR BE RETIRED FOR MENTAL OR PHYSICAL DISABIL-
ITY 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 DETER-
MINES 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-
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.

A. 8179                             5

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,
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, CENSURED, REMOVED OR RETIRED. THE COMMISSION SHALL  TRANSMIT
ITS  WRITTEN  DETERMINATION,  TOGETHER  WITH  ITS  FINDINGS  OF FACT AND
CONCLUSIONS OF LAW AND THE RECORD OF  THE  PROCEEDINGS  UPON  WHICH  ITS
DETERMINATION  IS  BASED, TO THE CHIEF JUDGE OF THE COURT OF APPEALS WHO
SHALL CAUSE A COPY THEREOF TO BE SERVED EITHER PERSONALLY OR  BY  CERTI-
FIED  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

A. 8179                             6

COMMISSION  SHALL THEREUPON ADMONISH OR CENSURE HIM OR HER IN ACCORDANCE
WITH ITS FINDINGS. IF THE COMMISSION HAS DETERMINED THAT A PROSECUTOR BE
REMOVED OR RETIRED, AND IF THE PROSECUTOR ACCEPTS SUCH DETERMINATION  OR
FAILS  TO REQUEST A REVIEW THEREOF BY THE COURT OF APPEALS, THE COURT OF
APPEALS SHALL THEREUPON ORDER  HIS  OR  HER  REMOVAL  OR  RETIREMENT  IN
ACCORDANCE WITH THE FINDINGS OF THE COMMISSION.
  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, CENSURE, REMOVAL OR RETIREMENT FOR THE REASONS SET
FORTH IN SUBDIVISION ONE OF THIS SECTION; OR IMPOSE NO SANCTION.
  9.  (A)  THE COURT OF APPEALS MAY SUSPEND A PROSECUTOR OR JUSTICE 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 INFORMATION 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.  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 OR JUSTICE 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 CONTINUE 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  INSTRU-
MENT.
  (C)  A PROSECUTOR OR JUSTICE 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
SUSPENSION 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  OR  JUSTICE  BE  ADMONISHED,  CENSURED,
REMOVED, OR RETIRED PURSUANT TO SUBDIVISION 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;  OR
(F)  AN APPLICABLE DISTRICT ATTORNEY'S OFFICE OR OTHER PROSECUTING AGEN-
CY, THE COMMISSION SHALL REFER SUCH COMPLAINT OR THE APPROPRIATE ALLEGA-
TIONS 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.
  S  499-G.  CONFIDENTIALITY OF RECORDS. EXCEPT AS HEREINAFTER PROVIDED,
ALL COMPLAINTS, CORRESPONDENCE, COMMISSION PROCEEDINGS  AND  TRANSCRIPTS

A. 8179                             7

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
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

A. 8179                             8

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
DETERMINATION  OF 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 DETERMINATION OF 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  DETERMINATION  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
COURT  OF  APPEALS  THAT A PROSECUTOR WHO HAS RESIGNED SHOULD BE REMOVED
FROM OFFICE SHALL RENDER SUCH PROSECUTOR INELIGIBLE TO  HOLD  ANY  OTHER
PROSECUTORIAL OFFICE.
  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, 2014.