New York State - Judiciary - JUD - Article 15-A
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 and the appellate division of jurisdiction.
499-j. Effect.
§ 499-a. Establishment of commission. There is hereby created within the executive department a state commission of prosecutorial conduct. The commission shall have the authority to review and investigate the conduct of prosecutors upon the filing of a complaint with the commission to examine whether a prosecutor or prosecutors has committed conduct in the course of his or her official duties or under color of state law potentially violative of statutes, the legal rights of private persons, whether statutory, constitutional or otherwise; case law; or court rules, including, but not limited to the 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).
§ 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. "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 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 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 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 person first appointed by the temporary president of the senate shall have a three year term. The person first appointed by the minority leader of the senate shall have a two year term. The person first appointed by the speaker of the assembly shall have a three year term. The person first appointed by the minority leader of the assembly shall have a two year term. Each member of the commission shall be appointed thereafter for a term of four years. Membership shall 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 seven 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 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 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 ninety-nine-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. 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 subdivision 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.
6. To do all other things necessary and convenient to carry out its functions, powers and duties expressly set forth in this article.
§ 499-e. 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-f 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-f 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, documents or other evidence that the referee may deem relevant or material to the subject of the hearing.
§ 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.
§ 499-g. 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 pursuant to section four hundred ninety-nine-f of this article. The commission and its designated staff personnel shall have access to confidential 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.
§ 499-h. 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 ninety-nine-g 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-g 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 hearing 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 commission, 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 schedule 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 thereof.
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 chairperson 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 chairperson of the panel is hereby authorized to administer. A record of the proceedings shall be made and a copy of 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 recommendations, including its recommendations as to penalty or punishment, if one is warranted, to the commission and to the accused staff member, employee 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 recommendations, 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 recommendation by the commission by way of a special proceeding pursuant to article seventy-eight of the civil practice law and rules.
§ 499-i. Resignation not to divest commission and the appellate division of jurisdiction. The jurisdiction of the appellate division and the commission pursuant to this article shall continue notwithstanding that a prosecutor resigns from office after a recommendation by the commission that the prosecutor be removed from office has been transmitted to the governor, or in any case in which the commission's recommendation that a prosecutor should be removed from office shall be transmitted to the governor within one hundred twenty days after receipt by the chief administrator of the courts of the resignation of such prosecutor. Any determination by the governor that a prosecutor who has resigned should be removed from office shall render such prosecutor ineligible to hold any other prosecutorial office.
§ 499-j. Effect. 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 thirteen of the New York state constitution.
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 and the appellate division of jurisdiction.
499-j. Effect.
§ 499-a. Establishment of commission. There is hereby created within the executive department a state commission of prosecutorial conduct. The commission shall have the authority to review and investigate the conduct of prosecutors upon the filing of a complaint with the commission to examine whether a prosecutor or prosecutors has committed conduct in the course of his or her official duties or under color of state law potentially violative of statutes, the legal rights of private persons, whether statutory, constitutional or otherwise; case law; or court rules, including, but not limited to the 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).
§ 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. "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 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 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 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 person first appointed by the temporary president of the senate shall have a three year term. The person first appointed by the minority leader of the senate shall have a two year term. The person first appointed by the speaker of the assembly shall have a three year term. The person first appointed by the minority leader of the assembly shall have a two year term. Each member of the commission shall be appointed thereafter for a term of four years. Membership shall 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 seven 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 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 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 ninety-nine-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. 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 subdivision 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.
6. To do all other things necessary and convenient to carry out its functions, powers and duties expressly set forth in this article.
§ 499-e. 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-f 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-f 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, documents or other evidence that the referee may deem relevant or material to the subject of the hearing.
§ 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.
§ 499-g. 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 pursuant to section four hundred ninety-nine-f of this article. The commission and its designated staff personnel shall have access to confidential 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.
§ 499-h. 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 ninety-nine-g 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-g 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 hearing 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 commission, 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 schedule 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 thereof.
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 chairperson 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 chairperson of the panel is hereby authorized to administer. A record of the proceedings shall be made and a copy of 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 recommendations, including its recommendations as to penalty or punishment, if one is warranted, to the commission and to the accused staff member, employee 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 recommendations, 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 recommendation by the commission by way of a special proceeding pursuant to article seventy-eight of the civil practice law and rules.
§ 499-i. Resignation not to divest commission and the appellate division of jurisdiction. The jurisdiction of the appellate division and the commission pursuant to this article shall continue notwithstanding that a prosecutor resigns from office after a recommendation by the commission that the prosecutor be removed from office has been transmitted to the governor, or in any case in which the commission's recommendation that a prosecutor should be removed from office shall be transmitted to the governor within one hundred twenty days after receipt by the chief administrator of the courts of the resignation of such prosecutor. Any determination by the governor that a prosecutor who has resigned should be removed from office shall render such prosecutor ineligible to hold any other prosecutorial office.
§ 499-j. Effect. 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 thirteen of the New York state constitution.
