What's happening
This bill establishes an Office of Special Investigation within the New York Department of Law to investigate and prosecute police-involved deaths, and expands grand jury transparency.
Why it matters
Creates an independent state-level office specifically tasked with investigating and prosecuting police- or peace officer-involved deaths. , which could address potential conflicts of interest that arise when local prosecutors investigate their own law enforcement partners.
Sets clear criteria for when the Office of Special Investigation (OSI) takes over cases. , including lack of local prosecutorial resources, inability or unwillingness of local district attorneys to act, or to preserve public confidence—potentially leading to more consistent accountability in police-involved deaths.
Increases transparency around grand jury proceedings in cases of police-involved deaths. , allowing for limited public disclosure of legal instructions and certain testimony, which may help address longstanding concerns about secrecy and perceived lack of fairness in grand jury decisions involving law enforcement.
Establishes special procedures for appointing independent prosecutors for cases involving state-employed police or peace officers. , and guarantees compensation and funding for these independent actors, which may further insulate investigations from local political or institutional pressure.
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Create Police Death Investigation Office
Plain English, a few words. Used as the page title.
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History
- Referred to finance
- Referred to finance
Full text
4 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
2189
2019-2020 Regular Sessions
IN SENATE
January 23, 2019
Introduced by Sen. BAILEY -- read twice and ordered printed, and when printed to be committed to the Committee on Finance
AN ACT to amend the executive law and the criminal procedure law, in relation to establishing the office of special investigation
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. The executive law is amended by adding a new section 70-b to read as follows:
§ 70-b. Office of special investigation. 1. There shall be established within the department of law an office of special investigation which shall have the power to investigate and prosecute any alleged criminal offense or offenses committed by a police officer as defined in subdivision thirty-four of section 1.20 of the criminal procedure law, or a peace officer as defined in subdivision thirty-three of section 1.20 of the criminal procedure law, concerning the death of any person that resulted from or potentially resulted from injuries that occurred or may have occurred as a result of any encounter with such police officer or peace officer. The office shall conduct such an investigation and may conduct such a prosecution upon its written finding that such is appropriate because: (i) there is a lack of alternative prosecutorial resources to adequately investigate and prosecute such criminal offense or offenses; (ii) such investigation and prosecution cannot be effectively conducted by the district attorney of the county wherein the offense or a portion thereof is alleged to have been committed; (iii) the district attorney has failed or refused to effectively conduct such investigation and prosecution; or (iv) the exercise of such jurisdiction is necessary to ensure the confidence of the public in the criminal justice system and judicial system. The office of special investigation within the department of law shall be headed by the deputy attorney general appointed by the attorney general pursuant to subdivision three of this section.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05450-01-9
S. 2189 2
2. In all proceedings pursuant to subdivision one of this section, the deputy attorney general, appointed pursuant to subdivision three of this section, may appear in person or by any assistant attorney general he or she may designate before any court or grand jury in the state and exercise all of the powers and perform all of the duties with respect to such actions or proceedings which the district attorney would otherwise be authorized or required to exercise or perform.
3. Notwithstanding any other provision of law, the attorney general shall, without civil service examination, appoint and employ, fix his or her compensation, and at his or her pleasure remove, a deputy attorney general in charge of the office of special investigation. The attorney general may, and without civil service examination, appoint and employ, and at pleasure remove, such assistant deputies, investigators and other persons as he or she deems necessary, determine their duties and fix their compensation.
4. (a) Where an investigation or prosecution of the type described in subdivision one of this section involves acts that appear to have been engaged in by a police officer or peace officer employed by the state of New York, the attorney general shall promptly apply to a superior court in the county in which such acts allegedly occurred for the appointment of a special assistant attorney general to investigate and potentially prosecute such matter. Notwithstanding the provisions of any other law, such court shall thereupon appoint a qualified attorney at law having an office in or residing in such county or an adjoining county, not employed as a district attorney or assistant district attorney, to act as a special assistant attorney general with respect to such matter, at a reasonable and appropriate hourly rate to be set by such court.
(b) The attorney general shall promptly notify the state comptroller and the court when such appointment has been made and accepted by such attorney. Reasonable fees for attorneys and investigation and litigation expenses shall be paid by the state to such private counsel from time to time during the pendency of the investigation and any prosecution and appeal, upon the audit and warrant of the comptroller. Any dispute with respect to the payment of such fees and expenses shall be resolved by the court upon motion or by way of a special proceeding.
(c) The deputy attorney general appointed pursuant to this subdivision may appear in person or by any special assistant deputy attorney general he or she may designate before any court or grand jury in the state and exercise all of the powers and perform all of the duties with respect to such actions or proceedings which the district attorney would otherwise be authorized or required to exercise or perform.
§ 2. Paragraph (d) of subdivision 3 of section 190.25 of the criminal procedure law is amended and a new paragraph (a-1) is added to read as follows:
(a-1) a judge or justice of the superior court;
(d) An interpreter. Upon request of the grand jury or the court, the prosecutor must provide an interpreter to interpret the testimony of any witness who does not speak the English language well enough to be readily understood. Such interpreter must, if he or she has not previously taken the constitutional oath of office, first take an oath before the grand jury that he or she will faithfully interpret the testimony of the witness and that he or she will keep secret all matters before such grand jury within his or her knowledge;
§ 3. Subdivision 6 of section 190.25 of the criminal procedure law is amended and a new subdivision 4-a is added to read as follows:
S. 2189 3
4-a. (a) Notwithstanding the provisions of subdivision four of this section, when, following submission to a grand jury of a criminal charge or charges, the grand jury dismisses all charges presented or directs the district attorney to file in a local criminal court a prosecutor's information charging an offense other than a felony, as provided in subdivision one of section 190.70 of this article, an application may be made to the superior court for disclosure of the following material relating to the proceedings before such grand jury:
(i) the criminal charge or charges submitted;
(ii) the legal instructions provided to the grand jury;
(iii) the testimony of all public servants who testified in an official capacity before the grand jury and of all persons who provided expert testimony; and
(iv) the testimony of all other persons who testified before the grand jury, redacted as necessary to prevent discovery of their names and such other personal data or information that may reveal or help to reveal their identities.
(b) The application specified in paragraph (a) of this subdivision may be made by any person, must be in writing and, except where made by the people, must be upon notice to the people. The court shall direct or provide notice to any other appropriate person or agency. Where more than one application is made hereunder in relation to such a dismissal or direction, the court may consolidate such applications and determine them together. When no application hereunder is made, the superior court may order disclosure on its own motion as provided in paragraph (c) of this subdivision at any time following notice to the people and an opportunity to be heard and reasonable efforts to notify and provide an opportunity to be heard to any other appropriate person or agency.
(c) Upon an application as provided in paragraph (a) of this subdivision or on the court's own motion, the court, after providing persons given notice an opportunity to be heard, shall determine whether:
(i) a significant number of members of the general public in the county in which the grand jury was drawn and impaneled are likely aware that a criminal investigation had been conducted in connection with the subject matter of the grand jury proceeding; and
(ii) a significant number of members of the general public in such county are likely aware of the identity of the subject against whom the criminal charge specified in paragraph (a) of this subdivision was submitted to a grand jury, or such subject has consented to such disclosure; and
(iii) there is significant public interest in disclosure.
Where the court is satisfied that all three of these factors are present, and except as provided in paragraph (d) of this subdivision, the court shall direct the district attorney to disclose the items specified in paragraph (a) of this subdivision.
(d) Notwithstanding any other provisions of this subdivision, on application of the district attorney or any interested person, or on its own motion, the court shall limit disclosure of the items specified in paragraph (a) of this subdivision, in whole or part, where the court determines there is a reasonable likelihood that such disclosure may lead to discovery of the identity of a witness who is not a public servant or expert witness, imperil the health or safety of a grand juror who participated in the proceeding or a witness who appeared before the grand jury, jeopardize an identified current or future criminal investigation, create a specific threat to public safety, or despite the inter-
S. 2189 4
ests reflected by this subdivision is contrary to the interests of justice.
(e) Where a court determines not to direct disclosure pursuant to this subdivision, it shall do so in a written order dismissing the application therefor that shall explain with specificity, to the extent practicable, the basis for its determination.
6. (a) The legal advisors of the grand jury are the court and the district attorney, and the grand jury may not seek or receive legal advice from any other source. Where necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it, and such instructions must be recorded in the minutes.
(b) Notwithstanding paragraph (a) of this subdivision, or any other law to the contrary, in any proceeding before a grand jury that involves the submission of a criminal charge or charges against a person or persons for an act or acts that occurred at a time when such person was a police officer or peace officer, and that concern the death of any of any person that resulted from or potentially resulted from injuries that occurred or may have occurred as a result of any encounter with such police officer or peace officer, the court, after consultation on the record with the district attorney, shall instruct the grand jury as to the criminal charge or charges to be submitted and the law applicable to such charges and to the matters before such grand jury. Thereafter, any questions, requests for exhibits, requests for readback of testimony or other requests from the grand jury or a member thereof shall be provided to the court, and addressed by the court after consultation on the record with the district attorney.
(c) Notwithstanding the provisions of subdivisions four and four-a of this section, following final action by the grand jury on the charge or charges submitted pursuant to paragraph (b) of this subdivision, the court shall make such legal instructions and charges submitted to such grand jury available to the public on request, provided that the names of witnesses and any information that would identify such witnesses included in such legal instructions or charges shall be redacted when the court determines, in a written order released to the public, and issued after notice to the people and the requester and an opportunity to be heard and reasonable efforts to notify and provide an opportunity to be heard to any other appropriate person or agency, that there is a reasonable likelihood that public release of such information would endanger any individual.
§ 4. This act shall take effect on the thirtieth day after it shall have become a law.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the executive law and the criminal procedure law, in relation to establishing the office of special investigation
Purpose or general idea of bill
The bill is designed to increase transparency and facilitate additional involvement of the court in grand jury proceedings. Additionally, in order to enhance public confidence in the integrity of proceedings in certain instances involving the use of deadly force by police and peace officers, the bill would authorize the designation or appointment of a special prosecutor to investigate and/or prosecute such cases.
Summary of specific provisions
Section one would establish an Office of Special Investigation within the New York State Department of Law (the formal name of the New York State office of the Attorney General). The Office of Special Investi- gation would, in certain circumstances, be empowered to investigate and prosecute alleged criminal offenses committed by a police or peace offi- cer that involved the use of deadly force against an individual who neither displayed nor threatened the immediate use of a deadly weapon or dangerous instrument.
Read the full memo (1,007 words)
When the police or peace officer allegedly involved was employed by the State of New York, the Attorney General would be authorized to apply to the court for appointment of an independent special prosecutor to inves- tigate and potentially prosecute the matter.
Section two would amend subdivision three of section 190.25 of the Crim- inal Procedure Law to assure that, as a part of carrying out his or her duties under law, a judge of the superior court is authorized to be present in the grand jury room, except during deliberations and voting by the grand jury.
Section three would make information and records concerning certain grand jury proceedings more readily available to the public. In proceedings involving any defendant, when the grand jury does not bring an indictment for a felony charge, the following information would be presumptively available for release: the criminal charges submitted, legal instructions given to the grand jury, testimony of expert witnesses, testimony of public servants who testified in an official capacity, and the testimony of other witnesses (redacted as necessary to prevent discovery of their names and personal data or information that may reveal identity).
Both the district attorney and the person against whom charges were presented would be able to appear and be heard in support of or oppo- sition to any application for release of such information and records.
In cases involving the submission of a potential criminal charge against a police officer or peace officer, legal instructions would be given by the superior court judge in charge of the grand jury. After submission of such charge or charges and final action on them by the grand jury, these legal instructions would be available for public release, ò provided that the names of witnesses and any information that would identify a witness would be redacted if the court determined that public release of such information would endanger any person.
Justification
It is vital that the public have confidence that our criminal justice system is impartial and fair. This confidence must be borne not just of perception, but of reality.
This legislation is designed to enhance public confidence in several ways. First, in all cases, it expressly authorizes the presence of a superior court judge in the grand jury room, except during deliberations and voting. Under existing law, the grand jury is empaneled by the supe- rior court and "constitutes a part of such court." Criminal Procedure Law § 190.05. The judge, along with the district attorney, serves as legal advisor to the grand jury. CPL 190.25 (6). Thus, it is certainly appropriate that the judge be among the persons authorized by CPL § 190.25 (3) to be in the grand jury room.
Second, judges are also authorized to instruct grand jurors regarding their duties and regarding any matter before the grand jury. CPL § 190.25 (6). This bill provides that when the subject of possible grand jury action is a police officer or peace officer, legal instructions to the grand jury will be given by the court. This will enhance public confidence because the judge, an impartial arbiter, is never called upon to represent any interest before the court.
When an indictment occurs under current law, public charges are filed and the public generally learns the specific charges and, as the matter unfolds, further details. However, when no indictment occurs, all infor- mation about the proceedings remains secret, unless released under limited circumstances. See CPL 190.25 (4) (a).
In some recent cases involving police and deadly force that did not result in indictment, present law has led to confusion and concern, among some in the public, that appropriate evidence was not presented or necessary legal instructions were not given. This legislation carefully balances grand jury secrecy with the public's understandable desire to know more about what led to a "no true bill" result.
Third, district attorneys and police work closely together in the inves- tigation of criminal acts. When an investigation involves police use of deadly force, it is reasonable to consider whether a district attorney can be impartial in investigating the facts and determining whether grand jury consideration is appropriate.
This bill would establish an Office of Special Investigation within the N.Y. State Department of Law. After reviewing specified statutory factors, the office would be authorized to investigate and prosecute this limited class of cases in the same manner as a district attorney. In instances where the police officer or peace officer was employed by New York State, the office would he empowered to seek court appointment of a special assistant attorney general to investigate and potentially prosecute the matter.
Prior legislative history
2017-18: Referred to Finance.
Fiscal implications
The bill may result in some increased costs to the state, and concom- itant savings for counties, as some prosecutions would be brought at state, rather than county, cost.
Effective date
The bill takes effect on the thirtieth day after it shall have become a law.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.