Establishes the commission on prosecutorial conduct.
BILL NUMBER:S6286 REVISED MEMO 05/07/2014
TITLE OF BILL: An act to amend the judiciary law, in relation to establishing the commission on prosecutorial conduct
The purpose of this legislation is to create the commission on prosecutorial conduct, to serve as a disciplinary entity designated to review complaints of prosecutorial misconduct in New York State, to enforce the obligation of prosecutors to observe acceptable standards of conduct, and to establish reasonable accountability for the conduct of prosecutors during the performance of their functions, powers and duties as prosecutors. The commission on prosecutorial conduct is modeled after legislation that established the state commission on judicial conduct.
SUMMARY OF PROVISIONS:
The judiciary law is amended by adding a new Article 15-A, entitled "State Commission on Prosecutorial Conduct" hereinafter referred to as "the commission" which contains Sections 499-a through 499-i.
Section 499-a of Article 15A establishes definitions for the purposes of the article, including the definitions of commission, prosecutor, hearing and member of the bar.
Section 499-b Article 15A establishes the commission on prosecutorial conduct, which 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.
Section 499-c of Article 15A establishes the functions, powers and duties of the commission which includes, but is not limited to, hearings and investigations, subpoenaing witnesses, requesting information, and annually reporting to the governor, the legislature and the chief judge of the court of appeals.
Section 499-d of Article 15A authorizes the commission to designate a three member panel.
Section 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.
Section 2: The commission may also 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.
Section 499-e of Article 15A:
Sections 1 through 8 authorize the commission to 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, censured or removed from office for cause, including, but not limited to, misconduct in office, 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.
Sections 9 and 10 provide that the court of appeals may suspend a prosecutor from exercising the powers of his or her office while there is a pending 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, or any other crime which involves moral turpitude.
Section 499-f of Article 15A establishes the confidentiality of records wherein all complaints, correspondence, commission proceedings and transcripts thereof of the commission shall be confidential and shall not be made available to any person except pursuant to section four hundred ninety-nine-f of this article.
Section 499-g of Article 15A establishes for the breach of the confidentiality of commission information wherein any staff member, employee or agent of the state commission on prosecutorial conduct who violates any of the provisions of section four hundred ninety-nine-g of this article, shall be subject to a reprimand, a fine, or suspension or removal by the commission.
Section 499-h of Article 15A establishes that the jurisdiction of the court of appeals and the commission pursuant to this article shall continue notwithstanding that a prosecutor resigns from office after a determination of the commission that a prosecutor be removed from office has been transmitted to chief judge of the court of appeals. Any determination by the court of appeals a that prosecutor who has resigned should be removed from office shall render such prosecutor ineligible to hold any other prosecutorial office.
Section 499-i of Article 15A clarifies that the powers of the prosecutorial conduct commission shall not supersede the powers of the governor to remove a district attorney as outlined in the state constitution. It also clarifies that if a district attorney is removed from office pursuant to this section, that removal shall constitute a removal pursuant to the public officers law.
Creating a State Commission on Prosecutorial Conduct, mirroring the existing Commission on Judicial Conduct, will allow a fair procedure for the public to voice concerns regarding improper prosecution, lack of prosecution and selective prosecution. Members of the Commission, appointed by the Governor, legislative leaders, and the Chief Judge of the Court of Appeals, will have jurisdiction to receive complaints and initiate their own investigation when it appears prosecutorial misconduct may have occurred. The commission will ensure the right to a fair trial by enforcing the obligation of prosecutors to observe
acceptable standards of conduct, and to establish accountability for the conduct of prosecutors during the performance of their functions, powers and duties.
Prosecutors have an extraordinary amount of discretion regarding investigation and prosecution of charges. They have wide latitude in determining how to prosecute, and whether to prosecute certain offenses against certain defendants. It is vitally important there exist in law a tribunal to oversee that discretion, to protect the rights of defendants and make certain they are not violated. The liberties at stake in criminal prosecutions call for this level of scrutiny.
The Commission will allow citizens to voice their concerns over improper prosecution, and will have the ability to discipline a prosecutor or allow him or her to clear their name of wrongdoing. This Commission is modeled after the Commission on Judicial Conduct, a successful entity that exists for many of the same reasons, as judges too have wide discretion that must be examined to ensure individual rights are not being violated. Both Commissions would exist to protect the integrity of the criminal justice system in New York.
PRIOR LEGISLATIVE HISTORY:
$5.5M when fully operational
This act shall take effect on January 1, 2015.
STATE OF NEW YORK ________________________________________________________________________ 6286 IN SENATE January 9, 2014 ___________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. DEFINITIONS. 499-B. STATE COMMISSION ON PROSECUTORIAL CONDUCT; ORGANIZATION. 499-C. FUNCTIONS; POWERS AND DUTIES. 499-D. PANELS; REFEREES. 499-E. COMPLAINT; INVESTIGATION; HEARING AND DISPOSITION. 499-F. CONFIDENTIALITY OF RECORDS. 499-G. BREACH OF CONFIDENTIALITY OF COMMISSION INFORMATION. 499-H. RESIGNATION NOT TO DIVEST COMMISSION OR COURT OF APPEALS OF JURISDICTION. 499-I. EFFECT. S 499-A. 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 ANY PERSON WHO REPRESENTS THE STATE OR A POLI- TICAL SUBDIVISION OF THE STATE IN AN ACTION TO EXACT A PENALTY, FINE, SANCTION OR FORFEITURE. 3. "HEARING" MEANS A PROCEEDING UNDER SUBDIVISION FOUR OF SECTION FOUR HUNDRED NINETY-NINE-E 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. S 499-B. STATE COMMISSION ON PROSECUTORIAL CONDUCT; ORGANIZATION. 1. A STATE COMMISSION ON PROSECUTORIAL CONDUCT IS HEREBY ESTABLISHED. THE COMMISSION SHALL CONSIST OF ELEVEN MEMBERS, OF WHOM TWO SHALL BE APPOINTED BY THE GOVERNOR, TWO BY THE TEMPORARY PRESIDENT OF THE SENATE,EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11880-07-4 S. 6286 2
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. 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-E OR SUBDIVISION TWO OF SECTION FOUR HUNDRED NINETY-NINE-D 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 SUCHS. 6286 3
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. S 499-C. 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-D OF THIS ARTICLE, ONLY A MEMBER OF THE COMMISSION OR THE ADMINISTRATOR 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. 6. TO DO ALL OTHER THINGS NECESSARY AND CONVENIENT TO CARRY OUT ITS FUNCTIONS, POWERS AND DUTIES EXPRESSLY SET FORTH IN THIS ARTICLE. S 499-D. 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-E 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-E 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, DOCUMENTSS. 6286 4
OR OTHER EVIDENCE THAT THE REFEREE MAY DEEM RELEVANT OR MATERIAL TO THE SUBJECT OF THE HEARING. S 499-E. 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, CENSURED OR REMOVED FROM OFFICE FOR CAUSE, INCLUDING, BUT NOT LIMITED TO, MISCONDUCT IN OFFICE, 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 DISABIL- ITY 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. 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-F 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 ANYS. 6286 5
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, 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, CENSURED, REMOVED OR RETIRED. THE COMMISSION SHALL TRANSMIT ITS WRITTEN DETERMINATION, TOGETHER WITH ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW AND THE RECORD OF THE PROCEEDINGS UPON WHICH ITS DETERMINATION IS BASED, TO THE CHIEF JUDGE OF THE COURT OF APPEALS WHO SHALL CAUSE A COPY THEREOF TO BE SERVED EITHER PERSONALLY OR BY CERTI- FIED 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 DETERMINED THAT A PROSECUTOR BE REMOVED OR RETIRED, AND IF THE PROSECUTOR ACCEPTS SUCH DETERMINATION OR FAILS TO REQUEST A REVIEW THEREOF BY THE COURT OF APPEALS, THE COURT OF APPEALS SHALL THEREUPON ORDER HIS OR HER REMOVAL OR RETIREMENT IN ACCORDANCE WITH THE FINDINGS OF THE COMMISSION.S. 6286 6
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, CENSURE, REMOVAL OR RETIREMENT FOR THE REASONS SET FORTH IN SUBDIVISION ONE OF THIS SECTION; OR IMPOSE NO SANCTION. 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 CONTINUE UPON CONVICTION AND, IF THE 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 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 CONTIN- UE UPON CONVICTION AND, IF THE 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 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, CENSURED, REMOVED, OR RETIRED PURSUANT TO SUBDIVISION 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 BY THE COMMISSION OF ANY DISTRICT SERVING ANY COUNTY OF THE STATE A VACANCY SHALL EXIST PURSUANT TO ARTICLE THREE OF THE PUBLIC OFFICERS LAW. S 499-F. 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-E OF THIS ARTICLE. THE COMMIS-S. 6286 7
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. S 499-G. 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-F 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-F 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 OFS. 6286 8
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 DETERMINATION OF THE COMMISSION BY WAY OF A SPECIAL PROCEEDING PURSUANT TO ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES. S 499-H. 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 DETERMINATION OF 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 DETERMINATION 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 COURT OF APPEALS THAT A PROSECUTOR WHO HAS RESIGNED SHOULD BE REMOVED FROM OFFICE SHALL RENDER SUCH PROSECUTOR INELIGIBLE TO HOLD ANY OTHER PROSECUTORIAL OFFICE. S 499-I. EFFECT. A. 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. B. 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. S 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. S 3. This act shall take effect January 1, 2015.