S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4878
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2017
                                ___________
 
 Introduced  by  M. of A. PERRY, MOSLEY, GOTTFRIED, GANTT, COOK, PRETLOW,
   PEOPLES-STOKES, ROSENTHAL, CRESPO,  WEPRIN,  MOYA,  RODRIGUEZ,  QUART,
   KIM, PICHARDO, WALKER, BARRON, SEAWRIGHT, JOYNER, BLAKE -- Multi-Spon-
   sored  by  --  M. of A. CARROLL, DAVILA, ORTIZ, SIMON -- read once and
   referred to the Committee on Codes

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

                                                            LBD09602-02-7

 A. 4878                             2
 
 WITHIN  THE  DEPARTMENT  OF  LAW  SHALL BE HEADED BY THE DEPUTY ATTORNEY
 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,  AND
 HAVING  NO  PERSONAL  OR PROFESSIONAL CONFLICTS OF INTEREST, 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.
   § 2. Subdivision 6 of section 190.25 of the criminal procedure law  is
 amended to read as follows:
   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

 A. 4878                             3
 
 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
 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  SUBDIVISION  FOUR  OF  THIS
 SECTION, OR ANY OTHER LAW TO THE CONTRARY, FOLLOWING FINAL ACTION BY THE
 GRAND  JURY ON THE CHARGE OR CHARGES SUBMITTED PURSUANT TO PARAGRAPH (B)
 OF THIS SUBDIVISION, 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.
   (D) NOTHING IN THIS PARAGRAPH OR PARAGRAPHS (B) OR (C), OF THIS SUBDI-
 VISION SHALL BE INTERPRETED AS LIMITING OR RESTRICTING ANY BROADER RIGHT
 OF  ACCESS  TO  GRAND  JURY MATERIALS UNDER ANY OTHER LAW, COMMON LAW OR
 COURT PRECEDENT.
   § 3. This act shall take effect on the thirtieth day  after  it  shall
 have become a law.