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This entry was published on 2021-06-25
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SECTION 499-F
Complaint; investigation; hearing and disposition
Judiciary (JUD) CHAPTER 30, ARTICLE 15-A
§ 499-f. Complaint; investigation; hearing and disposition. 1. The
commission shall receive, initiate, investigate and hear complaints with
respect to the conduct or performance of official duties of any
prosecutor; and may 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, 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 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 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 conduct 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 investigation.

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
appearance, 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 prosecutor 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
twenty-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 material 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 transcript of the proceedings
and of the testimony of witnesses at the hearing 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 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. The commission shall transmit its findings of fact and
recommendations and the record of the proceedings upon which such
findings and recommendations are based, to the attorney grievance
committee of the appellate division 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
commission's findings and recommendations 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
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.

8. The attorney grievance committee of the appellate division that
receives the commission's report may accept or reject the recommended
sanction; impose a different sanction; or impose no sanction.

9. 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
subdivisions seven and eight of this section, within the powers of: (a)
a person having administrative jurisdiction over the prosecutor involved
in the complaint; or (b) the attorney grievance committee of the
appellate division in the department where the prosecutor was admitted
to practice; or (c) the governor pursuant to subdivision (b) of section
thirteen of article thirteen of the constitution; or (d) an applicable
district attorney's office, 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.

10. The commission shall notify the complainant of its disposition of
the complaint.