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.