Reform Prosecutor Oversight Panel

Section 1. Article 15-A of the judiciary law, as added by chapter 202 of the laws of 2018, is amended to read as follows:

ARTICLE 15-A

STATE COMMISSION ON PROSECUTORIAL CONDUCT Section 499-a. Establishment of commission.

499-b. Definitions.

499-c. State commission on prosecutorial conduct; organization.

499-d. Functions; powers and duties.

499-e. Panels; referees.

499-f. Complaint; investigation; hearing and disposition.

499-g. Confidentiality of records.

499-h. Breach of confidentiality of commission information.

499-i. Resignation not to divest commission or [court of

appeals] presiding justices of the appellate division

of jurisdiction.

499-j. Effect.

§ 499-a. Establishment of commission. [A] There is hereby created within the executive department a state commission of prosecutorial conduct [is hereby established]. The commission shall have the authority to review the conduct of prosecutors upon the filing of a complaint with the commission to determine whether said conduct as alleged departs from the applicable statutes, case law, New York Rules of Professional

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD06137-01-9

S. 1190 2

Conduct, 22 NYCRR 1200, including but not limited to Rule 3.8 (Special Responsibilities of Prosecutors and Other Government Lawyers).

§ 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.

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, collectively, 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 communicate 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.

§ 499-c. State commission on prosecutorial conduct; organization. 1. [The commission 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. 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 prosecutors and defense attorneys pending new appointments shall not prevent the commission from conducting business.] The commission shall consist of eleven members, of whom four shall be appointed by the governor, one by the temporary president of the senate, one by the minority leader of the senate, one 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.

(a) Of the members appointed by the governor, two shall be attorneys providing public defense services who have provided such services for at least five years, and two shall be active, former or retired prosecutors with at least five years of prosecutorial experience.

(b) Of the members appointed by the chief judge, two shall be retired judges, one of whom shall possess significant work experience providing public defense services and one of whom shall have significant prosecutorial experience; one shall be a full time law professor or dean at an accredited law school with significant criminal law experience.

(c) Of the members appointed by the legislative leaders, two shall be attorneys providing defense services and two shall be active, former, or retired prosecutors. Each candidate for appointment as an attorney providing defense services shall have provided such services for at least five years and each candidate for appointment as an active, former

S. 1190 3

or retired prosecutor shall have had at least five years of prosecutorial experience. After the speaker of the assembly and temporary president of the senate shall have made their initial appointments, the minority leaders of each house shall make their appointments to the commission in a manner to ensure an equal number of attorneys providing defense services and active, former or retired prosecutors. After such initial appointments, successive appointments must be made in a manner to ensure an equal number of attorneys providing defense services and active, former or retired prosecutors. A temporary imbalance in the number of prosecutors 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] chairperson during his or her term of office or for a period of two years, whichever is shorter. Members of the commission who fail to participate for ninety days may be replaced by the original appointing authority for the remainder of the term.

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 designate. The [persons] person first appointed by the temporary president of the senate shall have [respectively] a three [and four] year [terms as he or she shall designate] term. The person first appointed by the minority leader of the senate shall have a two year term. The [persons] person first appointed by the speaker of the assembly shall have [respectively] a three [and four] year [terms as he or she shall designate] term. The person first appointed by the minority leader of the assembly shall have a [three] two 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 appointment.] 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. If a member of the commission is employed in the same organization as 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-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 concurrence of six

S. 1190 4

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 administrator who shall be a member of the bar who is not [a prosecutor or] an active, former or retired prosecutor. The administrator of the commission may appoint such 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. No appointment of an administrator shall be valid unless approved by an executive appointee, the appointee of the temporary president of the senate, and the appointee of the speaker of the assembly.

§ 499-d. Functions; powers and duties. The commission shall have the following functions, powers and duties:

1. To conduct hearings and investigations, administer oaths or affirmations, 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 ninetynine-e 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. [The prosecuting agency may inform the commission of its position that the commission's investigations will substantially interfere with the agency's own investigation or prosecution. If the prosecuting agency, by affirmation with specificity and particularity, informs the commission of its basis for that position, the commission shall only exercise its powers in a way that will not interfere with an agency's active investigation or prosecution.] In accordance with section twenty-three hundred four of the civil practice law and rules, a request to withdraw or modify a subpoena issued pursuant to this article may be made to the person who issued it and/or to the commission. The prosecuting agency may inform the commission, by affirmation with specificity and particularity, in a form and manner in which shall be prescribed by the commission, of its position that the commission's investigations will substantially interfere with the agency's own criminal investigation. If the prosecuting agency informs the commission of its basis for that position, the commission shall only exercise its powers in a way that will not interfere with an agency's active investigation or prosecution and in no event shall the commission exercise its powers prior to the earlier of: (a) the filing of an accusatory instrument with respect to the crime or crimes that led to such prosecuting agency's investigation and underlie the complaint; or (b) one year from the commencement of the occurrence of the crime or crimes that led to such prosecuting agency's investigation and underlie the complaint.

2. To confer immunity when the commission deems it necessary and proper 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-

S. 1190 5

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 administrative 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.