S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2412
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 13, 2017
                                ___________
 
 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.
   § 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 CONDUCT, 22 NYCRR 1200, INCLUDING  BUT  NOT  LIMITED  TO
 RULE  3.8  (SPECIAL RESPONSIBILITIES OF PROSECUTORS AND OTHER GOVERNMENT
 LAWYERS).
   § 499-B. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE  THE  FOLLOWING
 TERMS HAVE THE FOLLOWING MEANINGS:

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

                                                            LBD08062-01-7

 S. 2412                             2
 
   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, IN AN ACTION TO EXACT ANY CRIM-
 INAL 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.
   § 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,
 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,

 S. 2412                             3
 
 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.
   § 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 ADMINIS-
 TRATOR 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.

 S. 2412                             4
 
   6. TO DO ALL OTHER THINGS NECESSARY AND CONVENIENT TO  CARRY  OUT  ITS
 FUNCTIONS, POWERS AND DUTIES EXPRESSLY SET FORTH IN THIS ARTICLE.
   §  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.
   §  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,
 CASE  LAW, AND/OR NEW YORK RULES OF PROFESSIONAL CONDUCT, 22 NYCRR 1200,
 INCLUDING BUT NOT LIMITED  TO  RULE  3.8  (SPECIAL  RESPONSIBILITIES  OF
 PROSECUTORS AND OTHER GOVERNMENT LAWYERS), 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 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. PURSUANT TO  PARAGRAPH  A  OF  SUBDIVISION
 FOUR OF SECTION NINETY OF THIS CHAPTER, ANY PERSON BEING AN ATTORNEY AND
 COUNSELOR-AT-LAW  WHO SHALL BE CONVICTED OF A FELONY AS DEFINED IN PARA-
 GRAPH E OF SUBDIVISION FOUR OF SECTION NINETY  OF  THIS  CHAPTER,  SHALL
 UPON  SUCH CONVICTION, CEASE TO BE ANY ATTORNEY AND COUNSELOR-AT-LAW, OR
 TO BE COMPETENT TO PRACTICE LAW AS SUCH.
   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. 2412                             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. 2412                             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 RECOMMENDED THAT  A  PROSECUTOR
 BE  REMOVED  OR RETIRED AND THE PROSECUTOR ACCEPTS SUCH DETERMINATION OR
 FAILS TO REQUEST A REVIEW THEREOF BY THE COURT OF APPEALS, THE COURT  OF
 APPEALS SHALL THEREUPON TRANSMIT THE COMMISSION'S FINDINGS TO THE GOVER-
 NOR  WHO  WILL  INDEPENDENTLY DETERMINE WHETHER THE PROSECUTOR SHOULD BE
 REMOVED OR RETIRED.  NOTWITHSTANDING ANY PROVISION OF  THIS  SUBDIVISION
 TO  THE  CONTRARY, IF THE COMMISSION HAS AND THE COURT OF APPEALS RECOM-
 MENDS THAT THE ATTORNEY GENERAL BE REMOVED, THE COURT OF  APPEALS  SHALL
 TRANSMIT  THE  COMMISSION'S FINDINGS AND, IF ANY, COURT OF APPEALS FIND-
 INGS TO THE GOVERNOR WHO MAY  RECOMMEND  THE  REMOVAL  OF  THE  ATTORNEY
 GENERAL PURSUANT TO SECTION THIRTY-TWO OF THE PUBLIC OFFICERS LAW.
   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 RECOMMENDS 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.   NOTWITHSTANDING ANY PROVISION OF THIS
 SUBDIVISION TO THE CONTRARY, IF THE  COURT  OF  APPEALS  RECOMMENDS  THE
 REMOVAL  OR  RETIREMENT OF THE ATTORNEY GENERAL, IT SHALL, TOGETHER WITH
 THE COMMISSION, TRANSMIT THE ENTIRE  RECORD  TO  THE  GOVERNOR  WHO  MAY
 RECOMMEND  THE REMOVAL OF THE ATTORNEY GENERAL PURSUANT TO SECTION THIR-
 TY-TWO OF THE PUBLIC OFFICERS LAW.
   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 TERMINATE UPON CONVICTION OF A FELONY RESULTING IN
 SUCH PROSECUTOR'S DISBARMENT PURSUANT TO PARAGRAPH A OF SUBDIVISION FOUR

 S. 2412                             7
 
 OF SECTION NINETY OF THIS CHAPTER. IF SUCH CONVICTION BECOMES FINAL,  HE
 OR  SHE  SHALL  BE  REMOVED  FROM OFFICE PROVIDED, HOWEVER, THAT IF SUCH
 CONVICTION IS OF THE ATTORNEY GENERAL, HE OR SHE SHALL BE  REMOVED  FROM
 OFFICE  PURSUANT  TO PARAGRAPH E OF SUBDIVISION ONE OF SECTION THIRTY OF
 THE PUBLIC OFFICERS LAW, IF APPLICABLE, OR MAY BE  REMOVED  FROM  OFFICE
 PURSUANT  TO  SECTION  THIRTY-TWO OF SUCH LAW.   THE SUSPENSION SHALL BE
 TERMINATED UPON REVERSAL OF THE CONVICTION AND DISMISSAL OF THE  ACCUSA-
 TORY 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 TERMI-
 NATE UPON CONVICTION OF A FELONY RESULTING IN SUCH PROSECUTOR'S  DISBAR-
 MENT  PURSUANT  TO  PARAGRAPH A OF SUBDIVISION FOUR OF SECTION NINETY OF
 THIS CHAPTER. THE SUSPENSION SHALL CONTINUE UPON CONVICTION OF ANY OTHER
 CRIME WHICH INVOLVES MORAL TURPITUDE AND,  IF  SUCH  CONVICTION  BECOMES
 FINAL, HE OR SHE SHALL BE REMOVED FROM OFFICE PROVIDED, HOWEVER, THAT IF
 SUCH  CONVICTION  IS OF THE ATTORNEY GENERAL, HE OR SHE SHALL BE REMOVED
 FROM OFFICE PURSUANT TO PARAGRAPH E OF SUBDIVISION ONE OF SECTION THIRTY
 OF THE PUBLIC OFFICERS LAW, IF APPLICABLE, OR MAY BE REMOVED FROM OFFICE
 PURSUANT TO SECTION THIRTY-TWO OF SUCH LAW.   THE  SUSPENSION  SHALL  BE
 TERMINATED  UPON REVERSAL OF THE CONVICTION AND DISMISSAL OF THE ACCUSA-
 TORY 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 OF ANY PROSECUTOR, PURSUANT TO
 SUBDIVISION SEVEN OR EIGHT OR PARAGRAPH (A) OR (B) OF  SUBDIVISION  NINE
 OF  THIS SECTION, A VACANCY SHALL EXIST PURSUANT TO ARTICLE THREE OF THE
 PUBLIC OFFICERS LAW.
   § 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-

 S. 2412                             8

 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.
   §  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
 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

 S. 2412                             9
 
 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.
   §  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
 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.
   § 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.
   §  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.
   § 3. This act shall take effect January 1, 2018.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2412--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 13, 2017
                                ___________
 
 Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
   when printed to be committed to the Committee on Judiciary --  commit-
   tee  discharged, bill amended, ordered reprinted as amended and recom-
   mitted 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.
   § 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 CONDUCT, 22 NYCRR 1200, INCLUDING  BUT  NOT  LIMITED  TO
 RULE  3.8  (SPECIAL RESPONSIBILITIES OF PROSECUTORS AND OTHER GOVERNMENT
 LAWYERS).
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08062-02-7

 S. 2412--A                          2
 
   § 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, IN AN ACTION TO EXACT ANY CRIM-
 INAL 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.
   § 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,
 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

 S. 2412--A                          3
 
 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.
   §  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  ADMINIS-
 TRATOR  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

 S. 2412--A                          4

 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.
   § 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.
   § 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,
 CASE LAW, AND/OR NEW YORK RULES OF PROFESSIONAL CONDUCT, 22 NYCRR  1200,
 INCLUDING  BUT  NOT  LIMITED  TO  RULE  3.8 (SPECIAL RESPONSIBILITIES OF
 PROSECUTORS AND OTHER GOVERNMENT LAWYERS), 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 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.  PURSUANT TO PARAGRAPH A OF SUBDIVISION
 FOUR OF SECTION NINETY OF THIS CHAPTER, ANY PERSON BEING AN ATTORNEY AND
 COUNSELOR-AT-LAW WHO SHALL BE CONVICTED OF A FELONY AS DEFINED IN  PARA-
 GRAPH  E  OF  SUBDIVISION  FOUR OF SECTION NINETY OF THIS CHAPTER, SHALL
 UPON SUCH CONVICTION, CEASE TO BE ANY ATTORNEY AND COUNSELOR-AT-LAW,  OR
 TO BE COMPETENT TO PRACTICE LAW AS SUCH.
   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.

 S. 2412--A                          5
 
   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
 SHALL MAKE ITS DETERMINATION UPON THE PLEADINGS AND THE AGREED STATEMENT
 OF FACTS.

 S. 2412--A                          6
 
   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 RECOMMENDED THAT  A  PROSECUTOR
 BE  REMOVED  OR RETIRED AND THE PROSECUTOR ACCEPTS SUCH DETERMINATION OR
 FAILS TO REQUEST A REVIEW THEREOF BY THE COURT OF APPEALS, THE COURT  OF
 APPEALS SHALL THEREUPON TRANSMIT THE COMMISSION'S FINDINGS TO THE GOVER-
 NOR  WHO  WILL  INDEPENDENTLY DETERMINE WHETHER THE PROSECUTOR SHOULD BE
 REMOVED OR RETIRED.  NOTWITHSTANDING ANY PROVISION OF  THIS  SUBDIVISION
 TO  THE  CONTRARY, IF THE COMMISSION HAS AND THE COURT OF APPEALS RECOM-
 MENDS THAT THE ATTORNEY GENERAL BE REMOVED, THE COURT OF  APPEALS  SHALL
 TRANSMIT  THE  COMMISSION'S FINDINGS AND, IF ANY, COURT OF APPEALS FIND-
 INGS TO THE GOVERNOR WHO MAY  RECOMMEND  THE  REMOVAL  OF  THE  ATTORNEY
 GENERAL PURSUANT TO SECTION THIRTY-TWO OF THE PUBLIC OFFICERS LAW.
   8.  IF  THE  PROSECUTOR  REQUESTS A REVIEW OF THE DETERMINATION OF THE
 COMMISSION, IN ITS REVIEW OF A DETERMINATION OF THE COMMISSION  PURSUANT
 TO  THE  SECOND UNDESIGNATED PARAGRAPH OF SUBDIVISION B OF SECTION THREE
 OF ARTICLE SIX OF THE STATE CONSTITUTION, 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 SANCTION.  HOWEVER, IF THE COURT OF
 APPEALS RECOMMENDS REMOVAL OR RETIREMENT, IT SHALL,  TOGETHER  WITH  THE
 COMMISSION,  TRANSMIT  THE  ENTIRE RECORD TO THE GOVERNOR WHO WILL INDE-
 PENDENTLY DETERMINE WHETHER A PROSECUTOR SHOULD BE REMOVED  OR  RETIRED.
 NOTWITHSTANDING  ANY  PROVISION  OF THIS SUBDIVISION TO THE CONTRARY, IF
 THE COURT OF APPEALS RECOMMENDS THE REMOVAL OR RETIREMENT OF THE  ATTOR-
 NEY GENERAL, IT SHALL, TOGETHER WITH THE COMMISSION, TRANSMIT THE ENTIRE
 RECORD  TO  THE  GOVERNOR  WHO MAY RECOMMEND THE REMOVAL OF THE ATTORNEY
 GENERAL PURSUANT TO SECTION THIRTY-TWO OF THE PUBLIC OFFICERS LAW.
   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

 S. 2412--A                          7
 
 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 TERMINATE UPON CONVICTION OF A FELONY RESULTING IN
 SUCH PROSECUTOR'S DISBARMENT PURSUANT TO PARAGRAPH A OF SUBDIVISION FOUR
 OF  SECTION NINETY OF THIS CHAPTER. IF SUCH CONVICTION BECOMES FINAL, HE
 OR SHE SHALL BE REMOVED FROM OFFICE  PROVIDED,  HOWEVER,  THAT  IF  SUCH
 CONVICTION  IS  OF THE ATTORNEY GENERAL, HE OR SHE SHALL BE REMOVED FROM
 OFFICE PURSUANT TO PARAGRAPH E OF SUBDIVISION ONE OF SECTION  THIRTY  OF
 THE  PUBLIC  OFFICERS  LAW, IF APPLICABLE, OR MAY BE REMOVED FROM OFFICE
 PURSUANT TO SECTION THIRTY-TWO OF SUCH LAW.   THE  SUSPENSION  SHALL  BE
 TERMINATED  UPON REVERSAL OF THE CONVICTION AND DISMISSAL OF THE ACCUSA-
 TORY 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 TERMI-
 NATE  UPON CONVICTION OF A FELONY RESULTING IN SUCH PROSECUTOR'S DISBAR-
 MENT PURSUANT TO PARAGRAPH A OF SUBDIVISION FOUR OF  SECTION  NINETY  OF
 THIS CHAPTER. THE SUSPENSION SHALL CONTINUE UPON CONVICTION OF ANY OTHER
 CRIME  WHICH  INVOLVES  MORAL  TURPITUDE AND, IF SUCH CONVICTION BECOMES
 FINAL, HE OR SHE SHALL BE REMOVED FROM OFFICE PROVIDED, HOWEVER, THAT IF
 SUCH CONVICTION IS OF THE ATTORNEY GENERAL, HE OR SHE SHALL  BE  REMOVED
 FROM OFFICE PURSUANT TO PARAGRAPH E OF SUBDIVISION ONE OF SECTION THIRTY
 OF THE PUBLIC OFFICERS LAW, IF APPLICABLE, OR MAY BE REMOVED FROM OFFICE
 PURSUANT  TO  SECTION  THIRTY-TWO OF SUCH LAW.   THE SUSPENSION SHALL BE
 TERMINATED UPON REVERSAL OF THE CONVICTION AND DISMISSAL OF THE  ACCUSA-
 TORY 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 OF ANY PROSECUTOR, PURSUANT TO
 SUBDIVISION  SEVEN  OR EIGHT OR PARAGRAPH (A) OR (B) OF SUBDIVISION NINE
 OF THIS SECTION, A VACANCY SHALL EXIST PURSUANT TO ARTICLE THREE OF  THE
 PUBLIC OFFICERS LAW.

 S. 2412--A                          8
 
   §  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.
   § 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.

 S. 2412--A                          9
 
 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.
   §  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
 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.
   § 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.
   §  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.
   § 3. This act shall take effect January 1, 2018.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2412--B
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 13, 2017
                                ___________
 
 Introduced  by  Sens.  DeFRANCISCO,  BAILEY,  COMRIE,  HAMILTON, PARKER,
   RIVERA -- read twice and ordered  printed,  and  when  printed  to  be
   committed  to the Committee on Judiciary -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee  --  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.
   § 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 CONDUCT, 22 NYCRR 1200, INCLUDING  BUT  NOT  LIMITED  TO
 RULE  3.8  (SPECIAL RESPONSIBILITIES OF PROSECUTORS AND OTHER GOVERNMENT
 LAWYERS).
 
              

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD08062-05-7

 S. 2412--B                          2
 
   § 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, IN AN ACTION TO EXACT ANY CRIM-
 INAL 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.
   § 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,
 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

 S. 2412--B                          3

 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.
   §  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  ADMINIS-
 TRATOR  SHALL  EXERCISE  THE  POWER TO SUBPOENA WITNESSES OR REQUIRE THE
 PRODUCTION OF BOOKS, RECORDS, DOCUMENTS OR OTHER EVIDENCE.   THE  PROSE-
 CUTING AGENCY MAY INFORM THE COMMISSION OF ITS POSITION THAT THE COMMIS-
 SION'S INVESTIGATIONS WILL SUBSTANTIALLY INTERFERE WITH THE AGENCY'S OWN
 INVESTIGATION  OR PROSECUTION. IF THE PROSECUTING AGENCY, BY AFFIRMATION
 WITH SPECIFICITY AND PARTICULARITY, INFORMS THE COMMISSION OF ITS  BASIS
 FOR  THAT  POSITION,  THE COMMISSION SHALL ONLY EXERCISE ITS POWERS IN A
 WAY THAT WILL NOT INTERFERE WITH AN  AGENCY'S  ACTIVE  INVESTIGATION  OR
 PROSECUTION.
   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. 2412--B                          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.
   § 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.
   § 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,
 CASE LAW, AND/OR NEW YORK RULES OF PROFESSIONAL CONDUCT, 22 NYCRR  1200,
 INCLUDING  BUT  NOT  LIMITED  TO  RULE  3.8 (SPECIAL RESPONSIBILITIES OF
 PROSECUTORS AND OTHER GOVERNMENT LAWYERS), 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 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.  PURSUANT TO PARAGRAPH A OF SUBDIVISION
 FOUR OF SECTION NINETY OF THIS CHAPTER, ANY PERSON BEING AN ATTORNEY AND
 COUNSELOR-AT-LAW WHO SHALL BE CONVICTED OF A FELONY AS DEFINED IN  PARA-
 GRAPH  E  OF  SUBDIVISION  FOUR OF SECTION NINETY OF THIS CHAPTER, SHALL
 UPON SUCH CONVICTION, CEASE TO BE ANY ATTORNEY AND COUNSELOR-AT-LAW,  OR
 TO BE COMPETENT TO PRACTICE LAW AS SUCH.

 S. 2412--B                          5
 
   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.
 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-

 S. 2412--B                          6
 
 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 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 RECOMMENDED THAT  A  PROSECUTOR
 BE  REMOVED  OR RETIRED AND THE PROSECUTOR ACCEPTS SUCH DETERMINATION OR
 FAILS TO REQUEST A REVIEW THEREOF BY THE COURT OF APPEALS, THE COURT  OF
 APPEALS SHALL THEREUPON TRANSMIT THE COMMISSION'S FINDINGS TO THE GOVER-
 NOR  WHO  WILL  INDEPENDENTLY DETERMINE WHETHER THE PROSECUTOR SHOULD BE
 REMOVED OR RETIRED.  NOTWITHSTANDING ANY PROVISION OF  THIS  SUBDIVISION
 TO  THE  CONTRARY, IF THE COMMISSION HAS AND THE COURT OF APPEALS RECOM-
 MENDS THAT THE ATTORNEY GENERAL BE REMOVED, THE COURT OF  APPEALS  SHALL
 TRANSMIT  THE  COMMISSION'S FINDINGS AND, IF ANY, COURT OF APPEALS FIND-
 INGS TO THE GOVERNOR WHO MAY  RECOMMEND  THE  REMOVAL  OF  THE  ATTORNEY
 GENERAL PURSUANT TO SECTION THIRTY-TWO OF THE PUBLIC OFFICERS LAW.
   8.  IF  THE  PROSECUTOR  REQUESTS A REVIEW OF THE DETERMINATION OF THE
 COMMISSION, IN ITS REVIEW OF A DETERMINATION OF THE COMMISSION  PURSUANT
 TO  THE  SECOND UNDESIGNATED PARAGRAPH OF SUBDIVISION B OF SECTION THREE
 OF ARTICLE SIX OF THE STATE CONSTITUTION, 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 SANCTION.  HOWEVER, IF THE COURT OF
 APPEALS RECOMMENDS REMOVAL OR RETIREMENT, IT SHALL,  TOGETHER  WITH  THE
 COMMISSION,  TRANSMIT  THE  ENTIRE RECORD TO THE GOVERNOR WHO WILL INDE-
 PENDENTLY DETERMINE WHETHER A PROSECUTOR SHOULD BE REMOVED  OR  RETIRED.
 NOTWITHSTANDING  ANY  PROVISION  OF THIS SUBDIVISION TO THE CONTRARY, IF

 S. 2412--B                          7
 
 THE COURT OF APPEALS RECOMMENDS THE REMOVAL OR RETIREMENT OF THE  ATTOR-
 NEY GENERAL, IT SHALL, TOGETHER WITH THE COMMISSION, TRANSMIT THE ENTIRE
 RECORD  TO  THE  GOVERNOR  WHO MAY RECOMMEND THE REMOVAL OF THE ATTORNEY
 GENERAL PURSUANT TO SECTION THIRTY-TWO OF THE PUBLIC OFFICERS LAW.
   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 TERMINATE UPON CONVICTION OF A FELONY RESULTING  IN
 SUCH PROSECUTOR'S DISBARMENT PURSUANT TO PARAGRAPH A OF SUBDIVISION FOUR
 OF  SECTION NINETY OF THIS CHAPTER. IF SUCH CONVICTION BECOMES FINAL, HE
 OR SHE SHALL BE REMOVED FROM OFFICE  PROVIDED,  HOWEVER,  THAT  IF  SUCH
 CONVICTION  IS  OF THE ATTORNEY GENERAL, HE OR SHE SHALL BE REMOVED FROM
 OFFICE PURSUANT TO PARAGRAPH E OF SUBDIVISION ONE OF SECTION  THIRTY  OF
 THE  PUBLIC  OFFICERS  LAW, IF APPLICABLE, OR MAY BE REMOVED FROM OFFICE
 PURSUANT TO SECTION THIRTY-TWO OF SUCH LAW.   THE  SUSPENSION  SHALL  BE
 TERMINATED  UPON REVERSAL OF THE CONVICTION AND DISMISSAL OF THE ACCUSA-
 TORY 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 TERMI-
 NATE  UPON CONVICTION OF A FELONY RESULTING IN SUCH PROSECUTOR'S DISBAR-
 MENT PURSUANT TO PARAGRAPH A OF SUBDIVISION FOUR OF  SECTION  NINETY  OF
 THIS CHAPTER. THE SUSPENSION SHALL CONTINUE UPON CONVICTION OF ANY OTHER
 CRIME  WHICH  INVOLVES  MORAL  TURPITUDE AND, IF SUCH CONVICTION BECOMES
 FINAL, HE OR SHE SHALL BE REMOVED FROM OFFICE PROVIDED, HOWEVER, THAT IF
 SUCH CONVICTION IS OF THE ATTORNEY GENERAL, HE OR SHE SHALL  BE  REMOVED
 FROM OFFICE PURSUANT TO PARAGRAPH E OF SUBDIVISION ONE OF SECTION THIRTY
 OF THE PUBLIC OFFICERS LAW, IF APPLICABLE, OR MAY BE REMOVED FROM OFFICE
 PURSUANT  TO  SECTION  THIRTY-TWO OF SUCH LAW.   THE SUSPENSION SHALL BE
 TERMINATED UPON REVERSAL OF THE CONVICTION AND DISMISSAL OF THE  ACCUSA-
 TORY 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

 S. 2412--B                          8
 
 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 OF ANY PROSECUTOR, PURSUANT TO
 SUBDIVISION SEVEN OR EIGHT OR PARAGRAPH (A) OR (B) OF  SUBDIVISION  NINE
 OF  THIS SECTION, A VACANCY SHALL EXIST PURSUANT TO ARTICLE THREE OF THE
 PUBLIC OFFICERS LAW.
   § 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.
   § 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.

 S. 2412--B                          9
 
   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.
   § 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
 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.
   §  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.
   § 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.
   § 3. This act shall take effect January 1, 2018.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2412--C
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 13, 2017
                                ___________
 
 Introduced  by  Sens.  DeFRANCISCO,  BAILEY,  COMRIE,  HAMILTON, PARKER,
   RIVERA -- read twice and ordered  printed,  and  when  printed  to  be
   committed  to the Committee on Judiciary -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee  --  committee  discharged,  bill  amended,  ordered  reprinted as
   amended and recommitted to said committee -- reported  favorably  from
   said  committee and committed to the Committee on Finance -- 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.
   § 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

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

                                                            LBD08062-07-7

 S. 2412--C                          2
 
 COMPLAINT WITH THE COMMISSION  TO  DETERMINE  WHETHER  SAID  CONDUCT  AS
 ALLEGED  DEPARTS  FROM THE APPLICABLE STATUTES, CASE LAW, NEW YORK RULES
 OF PROFESSIONAL CONDUCT, 22 NYCRR 1200, INCLUDING  BUT  NOT  LIMITED  TO
 RULE  3.8  (SPECIAL RESPONSIBILITIES OF PROSECUTORS AND OTHER GOVERNMENT
 LAWYERS).
   § 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 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.
   § 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.

 S. 2412--C                          3
 
   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.
   §  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  ADMINIS-
 TRATOR  SHALL  EXERCISE  THE  POWER TO SUBPOENA WITNESSES OR REQUIRE THE
 PRODUCTION OF BOOKS, RECORDS, DOCUMENTS OR OTHER EVIDENCE.   THE  PROSE-
 CUTING AGENCY MAY INFORM THE COMMISSION OF ITS POSITION THAT THE COMMIS-
 SION'S INVESTIGATIONS WILL SUBSTANTIALLY INTERFERE WITH THE AGENCY'S OWN
 INVESTIGATION  OR PROSECUTION. IF THE PROSECUTING AGENCY, BY AFFIRMATION
 WITH SPECIFICITY AND PARTICULARITY, INFORMS THE COMMISSION OF ITS  BASIS
 FOR  THAT  POSITION,  THE COMMISSION SHALL ONLY EXERCISE ITS POWERS IN A
 WAY THAT WILL NOT INTERFERE WITH AN  AGENCY'S  ACTIVE  INVESTIGATION  OR
 PROSECUTION.
   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

 S. 2412--C                          4
 
 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.
   §  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.
   §  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,
 CASE  LAW, AND/OR NEW YORK RULES OF PROFESSIONAL CONDUCT, 22 NYCRR 1200,
 INCLUDING BUT NOT LIMITED  TO  RULE  3.8  (SPECIAL  RESPONSIBILITIES  OF
 PROSECUTORS AND OTHER GOVERNMENT LAWYERS), 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 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. PURSUANT TO  PARAGRAPH  A  OF  SUBDIVISION

 S. 2412--C                          5
 
 FOUR OF SECTION NINETY OF THIS CHAPTER, ANY PERSON BEING AN ATTORNEY AND
 COUNSELOR-AT-LAW  WHO SHALL BE CONVICTED OF A FELONY AS DEFINED IN PARA-
 GRAPH E OF SUBDIVISION FOUR OF SECTION NINETY  OF  THIS  CHAPTER,  SHALL
 UPON  SUCH CONVICTION, CEASE TO BE ANY ATTORNEY AND COUNSELOR-AT-LAW, OR
 TO BE COMPETENT TO PRACTICE LAW AS SUCH.
   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.
 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

 S. 2412--C                          6
 
 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 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 RECOMMENDED THAT  A  PROSECUTOR
 BE  REMOVED  OR RETIRED AND THE PROSECUTOR ACCEPTS SUCH DETERMINATION OR
 FAILS TO REQUEST A REVIEW THEREOF BY THE COURT OF APPEALS, THE COURT  OF
 APPEALS SHALL THEREUPON TRANSMIT THE COMMISSION'S FINDINGS TO THE GOVER-
 NOR  WHO  WILL  INDEPENDENTLY DETERMINE 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 PURSUANT
 TO THE SECOND UNDESIGNATED PARAGRAPH OF SUBDIVISION B OF  SECTION  THREE
 OF  ARTICLE  SIX  OF  THE STATE CONSTITUTION, 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 SANCTION.   HOWEVER, IF THE  COURT  OF
 APPEALS  RECOMMENDS  REMOVAL  OR RETIREMENT, IT SHALL, TOGETHER WITH THE
 COMMISSION, TRANSMIT THE ENTIRE RECORD TO THE GOVERNOR  WHO  WILL  INDE-
 PENDENTLY DETERMINE WHETHER A PROSECUTOR SHOULD BE REMOVED OR RETIRED.

 S. 2412--C                          7

   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 TERMINATE UPON CONVICTION OF A FELONY RESULTING IN
 SUCH PROSECUTOR'S DISBARMENT PURSUANT TO PARAGRAPH A OF SUBDIVISION FOUR
 OF SECTION NINETY OF THIS CHAPTER. IF SUCH 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.
   (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 TERMI-
 NATE  UPON CONVICTION OF A FELONY RESULTING IN SUCH PROSECUTOR'S DISBAR-
 MENT PURSUANT TO PARAGRAPH A OF SUBDIVISION FOUR OF  SECTION  NINETY  OF
 THIS CHAPTER. THE SUSPENSION SHALL CONTINUE UPON CONVICTION OF ANY OTHER
 CRIME  WHICH  INVOLVES  MORAL  TURPITUDE AND, IF SUCH 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 ACCUSA-
 TORY 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 OF ANY PROSECUTOR, PURSUANT TO
 SUBDIVISION SEVEN OR EIGHT OR PARAGRAPH (A) OR (B) OF  SUBDIVISION  NINE
 OF  THIS SECTION, A VACANCY SHALL EXIST PURSUANT TO ARTICLE THREE OF THE
 PUBLIC OFFICERS LAW.
   § 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-

 S. 2412--C                          8
 
 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.
   § 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
 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

 S. 2412--C                          9
 
 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.
   §  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
 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.
   § 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.
   §  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.
   § 3. This act shall take effect January 1, 2018.