Legislation

§ 701. Special district attorney. 1. Whenever the district attorney of
any county and such assistants as he or she may have shall not be in
attendance at a term of any court of record, which he or she is by law
required to attend, or are disqualified from acting in a particular case
to discharge his or her duties at a term of any court, a superior
criminal court in the county wherein the action is triable may, by
order:

(a) appoint some attorney at law having an office in or residing in
the county, or any adjoining county, to act as special district attorney
during the absence, inability or disqualification of the district
attorney and such assistants as he or she may have; or

(b) appoint a district attorney of any other county within the
judicial department or of any county adjoining the county wherein the
action is triable to act as special district attorney, provided such
district attorney agrees to accept appointment by such criminal court
during such absence, inability or disqualification of the district
attorney and such assistants as he or she may have.

2. If, for any reason, the appointment of a special district attorney
cannot be effectuated pursuant to paragraph (a) or (b) of subdivision
one of this section, the court shall then attempt to effect such
appointment pursuant to the other such paragraph.

3. Where a special district attorney appointed under this section is a
district attorney, he or she may direct the exercise of such powers and
the performance of such duties by any assistant in his or her office in
any case in which he or she serves as special district attorney to the
same extent permitted by law in any case in which he or she serves as
district attorney.

4. No appointment made under this section shall be for a period beyond
the adjournment of the term at which made. Where, however, an
appointment is required under this section for a particular case because
of the disqualification of the district attorney, the appointment may be
made for all purposes, including disposition. The special district
attorney so appointed shall possess the powers and discharge the duties
of the district attorney during the period for which he or she shall be
appointed. The provisions of this section shall also apply to a county
wholly contained within a city.

5. Where a special district attorney is appointed under this section,
the board of supervisors of the county wherein such special district
attorney serves, after having been notified and provided with an
opportunity to be heard, shall pay the necessary disbursements of, and a
reasonable compensation for, the services of the person so appointed and
acting, as certified by the presiding judge or justice. Nothing
contained herein shall prevent any county from entering into an
agreement with any other county for the compensation of a special
district attorney appointed pursuant to paragraph (b) of subdivision one
of this section. In no event shall the compensation paid pursuant to
paragraph (b) of subdivision one of this section exceed the compensation
paid by the county in which such district attorney, or his or her
assistants, serves.

6. (a) This subdivision shall apply to the attorney general in any
circumstance where the attorney general acts in place of a district
attorney. Nothing in this subdivision shall invalidate a court
appointment of a district attorney or other attorney made prior to the
effective date of this subdivision to serve in the place of the attorney
general on a particular matter under any other subdivision of this
section.

(b) Notwithstanding any other provision of law to the contrary,
whenever the attorney general and such assistants as the attorney
general may have, is disqualified from acting in a particular matter to
discharge their duties at a term of any court, a superior criminal court
in the county wherein the action is triable may upon articulable reasons
set forth by the attorney general for such appointment, by order:

(i) appoint some attorney at law having relevant experience and
expertise, without regard to judicial department or other geographic
limitations within the state, to act as special district attorney during
the disqualification of the attorney general and such assistants as they
may have; or

(ii) appoint a district attorney of any county to act as special
district attorney, provided such district attorney agrees to accept
appointment by such criminal court during such disqualification of the
attorney general and such assistants as they may have.

(c) The special district attorney so appointed shall possess the
powers and discharge the duties of the attorney general during the
period, or for the duration of the matter, for which they shall be
appointed.

(d) Where a special district attorney is appointed under this
subdivision, the special district attorney may direct the exercise of
such powers and the performance of such duties by any assistant or other
staff in their office to assist such special district attorney to the
same extent permitted by law.

(e) Any special district attorney appointed under this subdivision for
a matter arising out of the attorney general's authority under section
seventy-b of the executive law shall be responsible for the public
report required by subdivision six of such section.

(f) Where a special district attorney is appointed under this
subdivision, the department of budget, after having been notified and
provided with an opportunity to be heard, shall pay the necessary
disbursements of, and a reasonable compensation for, the services of the
person so appointed and acting, as certified by the presiding judge or
justice.