S T A T E O F N E W Y O R K
________________________________________________________________________
10805--A
I N A S S E M B L Y
July 15, 2020
___________
Introduced by COMMITTEE ON RULES -- (at request of M. of A. Perry) --
read once and referred to the Committee on Codes -- reported and
referred to the Committee on Rules -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the judiciary law, in relation to the state commission
on prosecutorial conduct
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 499-a of the judiciary law, as amended by chapter
23 of the laws of 2019, is amended to read as follows:
§ 499-a. Establishment of commission. There is hereby created within
the executive department a state commission of prosecutorial conduct.
The commission shall have the authority to review AND INVESTIGATE the
conduct of prosecutors upon the filing of a complaint with the commis-
sion to [determine] EXAMINE whether [said] A PROSECUTOR OR PROSECUTORS
HAS COMMITTED conduct [as alleged departs from the applicable] IN THE
COURSE OF HIS OR HER OFFICIAL DUTIES OR UNDER COLOR OF STATE LAW POTEN-
TIALLY VIOLATIVE OF statutes, THE LEGAL RIGHTS OF PRIVATE PERSONS,
WHETHER STATUTORY, CONSTITUTIONAL OR OTHERWISE; case law[,]; OR COURT
RULES, INCLUDING, BUT NOT LIMITED TO THE New York Rules of Professional
Conduct, 22 NYCRR 1200, OR ANY SUBSET THEREOF OR SUCCESSOR THERETO,
including but not limited to Rule 3.8 (Special Responsibilities of
Prosecutors and Other Government Lawyers).
§ 2. Section 499-b of the judiciary law, as amended by chapter 23 of
the laws of 2019, is amended to read as follows:
§ 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.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16898-06-0
A. 10805--A 2
4. "Member of the bar" means a person admitted to the practice of law
in this state for at least five years.
5. ["Presiding justices of the appellate division" shall mean, collec-
tively, the presiding justices of the appellate division of the supreme
court of each judicial department. The chief administrative judge shall,
by rule, establish an appropriate mechanism, not inconsistent with law,
for persons and entities interacting with the presiding justices of the
appellate division pursuant to this article to file papers and communi-
cate with such body.
6.] "Retired judge" shall mean a former judge or justice of the
unified court system who was qualified as an attorney during such
service and served as such a judge or justice for at least five years.
§ 3. Subdivision 6 of section 499-c of the judiciary law, as amended
by chapter 23 of the laws of 2019, is amended to read as follows:
6. For any action taken pursuant to subdivisions four through [nine]
SEVEN 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 concur-
rence 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.
§ 4. Section 499-f of the judiciary law, as amended by chapter 23 of
the laws of 2019, is amended to read as follows:
§ 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
performance of official duties of any prosecutor[, and may determine
that a prosecutor be admonished, or censured]; and MAY make a recommen-
dation 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, OR ANY SUBSET THEREOF OR SUCCESSOR THERETO,
including but not limited to Rule 3.8 (Special Responsibilities of
Prosecutors and Other Government Lawyers), persistent failure to perform
his or her duties, conduct 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 deter-
mines that the complaint on its face lacks merit. If the complaint is
dismissed, the commission shall so notify the complainant. If the
commission shall have notified the prosecutor of the complaint, the
commission shall also notify the prosecutor of such dismissal. 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 paragraph 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.
A. 10805--A 3
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 inves-
tigation.
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.
A. 10805--A 4
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] RELY UPON the
agreed statement of facts IN FORMING THE COMMISSION'S FINDINGS OF FACT.
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] RECOMMENDATIONS and the record of the proceedings upon
which [its determination is] SUCH FINDINGS AND RECOMMENDATIONS ARE
based, to the [presiding justices of the] ATTORNEY GRIEVANCE COMMITTEE
OF THE appellate division [who] IN THE DEPARTMENT WHERE THE PROSECUTOR
WAS ADMITTED TO PRACTICE, WHICH 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] COMMISSION'S findings and [conclusions] RECOMMENDA-
TIONS 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 appellate division in
the department in which the [alleged misconduct occurred] RECORD WAS
FILED. IF THE COMMISSION'S FINDINGS AND RECOMMENDATIONS INCLUDE ANY
RECOMMENDATION THAT ANY PROSECUTOR SHOULD BE REMOVED OR RETIRED, THE
COMMISSION SHALL SIMULTANEOUSLY TRANSMIT ITS FINDINGS, RECOMMENDATIONS,
AND RECORD OF ITS PROCEEDINGS TO THE GOVERNOR. Records of a prosecuting
agency provided by the agency to the commission pursuant to this article
shall not be subject to disclosure by the commission under article six
of the public officers law. [The prosecutor involved may either accept
the determination of the commission or make written request to the
presiding justices of the appellate division, within thirty days after
receipt of such determination, for a review thereof by the presiding
justices of the appellate division. 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
presiding justices of the appellate division, the commission shall ther-
eupon 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 presiding justices of the appellate division, the
presiding justices of the appellate division shall thereupon transmit
the commission's findings to the governor who will independently deter-
mine whether the prosecutor should be removed or retired.]
8. [If the prosecutor requests a review of the determination of the
commission, in its review of a determination of the commission, the
presiding justices of the appellate division shall review the commis-
sion'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 presiding justices of the] THE ATTORNEY GRIEVANCE
COMMITTEE OF THE appellate division THAT RECEIVES THE COMMISSION'S
REPORT may accept or reject the [determined] RECOMMENDED sanction;
impose a different sanction [including admonition or censure, recommend
A. 10805--A 5
removal or retirement for the reasons set forth in subdivision one of
this section]; or impose no sanction. [However, if the presiding
justices of the appellate division recommend removal or retirement, they
shall, together with the commission, transmit the entire record to the
governor who will independently determine whether a prosecutor should be
removed or retired.]
9. [(a) The presiding justices of the appellate division 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 information 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 para-
graph 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 instrument.
(b) Upon the recommendation of the commission or on its own motion,
the presiding justices of the appellate division may suspend a prosecu-
tor 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 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. 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 accusatory instrument.
(c) A prosecutor who is suspended from office by the presiding
justices of the appellate division shall receive his or her salary
during such period of suspension, unless the court directs otherwise. If
the court has so directed and such suspension is thereafter terminated,
the presiding justices of the appellate division 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] AND EIGHT of this section, within the
powers of: (a) a person having administrative jurisdiction over the
prosecutor involved in the complaint; or (b) [an] THE ATTORNEY GRIEVANCE
COMMITTEE OF THE appellate division [of the supreme court] IN THE
DEPARTMENT WHERE THE PROSECUTOR WAS ADMITTED TO PRACTICE; 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)] (D) 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.] 10. The commission shall notify the complainant of its disposi-
tion of the complaint.
A. 10805--A 6
[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.]
§ 5. Section 499-i of the judiciary law, as amended by chapter 23 of
the laws of 2019, is amended to read as follows:
§ 499-i. Resignation not to divest commission [or presiding justices
of] AND the appellate division of jurisdiction. The jurisdiction of the
[presiding justices of the] appellate division and the commission pursu-
ant 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 [presiding
justices of the appellate division] GOVERNOR, or in any case in which
the commission's recommendation that a prosecutor should be removed from
office shall be transmitted to the [presiding justices of the appellate
division] GOVERNOR 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 prosecutorial office.
§ 6. Section 499-j of the judiciary law, as amended by chapter 23 of
the laws of 2019, is amended to read as follows:
§ 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.]
§ 7. Legislative intent. It is hereby declared to be the intent of the
legislature that, if any clause, sentence, paragraph, subdivision,
section or part of article 15-A of the judiciary law shall be adjudged
by any court of competent jurisdiction to be invalid, that such article
would have been enacted even if such invalid provisions has not been
included therein.
§ 8. Severability. If any clause, sentence, paragraph, subdivision,
section or part of this act shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair, or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, subdivision, section or part thereof
directly involved in the controversy in which such judgment shall have
been rendered. It is hereby declared to be the intent of the legislature
that this act would have been enacted even if such invalid provisions
had not been included herein.
§ 9. This act shall take effect immediately.