Establishes the commission on prosecutorial conduct

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.

Justification

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

S.6286A/A.8634A - 2013-2014

Fiscal implications

$5.5M when fully operational

Effective date

This act shall take effect on January 1, 2017.