STATE OF NEW YORK ________________________________________________________________________ 781 2019-2020 Regular Sessions IN ASSEMBLY January 11, 2019 ___________ Introduced by M. of A. PERRY -- read once and referred to the Committee on Judiciary AN ACT to amend the judiciary law, in relation to the state commission on prosecutorial conduct; and to amend chapter 202 of the laws of 2018 amending the judiciary law relating to establishing the commission on prosecutorial conduct, in relation to the effectiveness thereof The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Article 15-A of the judiciary law, as added by chapter 202 2 of the laws of 2018, is amended to read as follows: 3 ARTICLE 15-A 4 STATE COMMISSION ON PROSECUTORIAL CONDUCT 5 Section 499-a. Establishment of commission. 6 499-b. Definitions. 7 499-c. State commission on prosecutorial conduct; organization. 8 499-d. Functions; powers and duties. 9 499-e. Panels; referees. 10 499-f. Complaint; investigation; hearing and disposition. 11 499-g. Confidentiality of records. 12 499-h. Breach of confidentiality of commission information. 13 499-i. Resignation not to divest commission or [court of 14 appeals] presiding justices of the appellate division 15 of jurisdiction. 16 499-j. Effect. 17 § 499-a. Establishment of commission. [A] There is hereby created 18 within the executive department a state commission of prosecutorial 19 conduct [is hereby established]. The commission shall have the authority 20 to review the conduct of prosecutors upon the filing of a complaint with 21 the commission to determine whether said conduct as alleged departs from 22 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

A. 781 2 1 Conduct, 22 NYCRR 1200, including but not limited to Rule 3.8 (Special 2 Responsibilities of Prosecutors and Other Government Lawyers). 3 § 499-b. Definitions. For the purposes of this article the following 4 terms have the following meanings: 5 1. "Commission" means the state commission on prosecutorial conduct. 6 2. "Prosecutor" means a district attorney or any assistant district 7 attorney of any county of the state in an action to exact any criminal 8 penalty, fine, sanction or forfeiture. 9 3. "Hearing" means a proceeding under subdivision four of section four 10 hundred ninety-nine-f of this article. 11 4. "Member of the bar" means a person admitted to the practice of law 12 in this state for at least five years. 13 5. "Presiding justices of the appellate division" shall mean, collec- 14 tively, the presiding justices of the appellate division of the supreme 15 court of each judicial department. The chief administrative judge 16 shall, by rule, establish an appropriate mechanism, not inconsistent 17 with law, for persons and entities interacting with the presiding 18 justices of the appellate division pursuant to this article to file 19 papers and communicate with such body. 20 6. "Retired judge" shall mean a former judge or justice of the unified 21 court system who was qualified as an attorney during such service and 22 served as such a judge or justice for at least five years. 23 § 499-c. State commission on prosecutorial conduct; organization. 1. 24 [The commission shall consist of eleven members, of whom two shall be 25 appointed by the governor, two by the temporary president of the senate, 26 one by the minority leader of the senate, two by the speaker of the 27 assembly, one by the minority leader of the assembly and three by the 28 chief judge of the court of appeals. Of the members appointed by the 29 governor one shall be a public defender and one shall be a prosecutor. 30 Of the members appointed by the chief judge one person shall be a 31 justice of the appellate division of the supreme court and two shall be 32 judges of courts other than the court of appeals or appellate division. 33 Of the members appointed by the legislative leaders, there shall be an 34 equal number of prosecutors and attorneys providing defense services; 35 provided, however, that a temporary imbalance in the number of prosecu- 36 tors and defense attorneys pending new appointments shall not prevent 37 the commission from conducting business.] The commission shall consist 38 of eleven members, of whom four shall be appointed by the governor, one 39 by the temporary president of the senate, one by the minority leader of 40 the senate, one by the speaker of the assembly, one by the minority 41 leader of the assembly and three by the chief judge of the court of 42 appeals. 43 (a) Of the members appointed by the governor, two shall be attorneys 44 providing public defense services who have provided such services for at 45 least five years, and two shall be active, former or retired prosecutors 46 with at least five years of prosecutorial experience. 47 (b) Of the members appointed by the chief judge, two shall be retired 48 judges, one of whom shall possess significant work experience providing 49 public defense services and one of whom shall have significant prosecu- 50 torial experience; one shall be a full time law professor or dean at an 51 accredited law school with significant criminal law experience. 52 (c) Of the members appointed by the legislative leaders, two shall be 53 attorneys providing defense services and two shall be active, former, or 54 retired prosecutors. Each candidate for appointment as an attorney 55 providing defense services shall have provided such services for at 56 least five years and each candidate for appointment as an active, former

A. 781 3 1 or retired prosecutor shall have had at least five years of prosecutori- 2 al experience. After the speaker of the assembly and temporary president 3 of the senate shall have made their initial appointments, the minority 4 leaders of each house shall make their appointments to the commission in 5 a manner to ensure an equal number of attorneys providing defense 6 services and active, former or retired prosecutors. After such initial 7 appointments, successive appointments must be made in a manner to ensure 8 an equal number of attorneys providing defense services and active, 9 former or retired prosecutors. A temporary imbalance in the number of 10 prosecutors and defense attorneys pending new appointments shall not 11 prevent the commission from conducting business. 12 2. Membership on the commission by a prosecutor shall not constitute 13 the holding of a public office and no prosecutor shall be required to 14 take and file an oath of office before serving on the commission. The 15 members of the commission shall elect one of their number to serve as 16 [chairman] chairperson during his or her term of office or for a period 17 of two years, whichever is shorter. Members of the commission who fail 18 to participate for ninety days may be replaced by the original appoint- 19 ing authority for the remainder of the term. 20 3. The persons first appointed by the governor shall have respectively 21 three and four year terms as he or she shall designate. The persons 22 first appointed by the chief judge of the court of appeals shall have 23 respectively two, three and four year terms as he or she shall desig- 24 nate. The [persons] person first appointed by the temporary president of 25 the senate shall have [respectively] a three [and four] year [terms as 26 he or she shall designate] term. The person first appointed by the 27 minority leader of the senate shall have a two year term. The [persons] 28 person first appointed by the speaker of the assembly shall have 29 [respectively] a three [and four] year [terms as he or she shall desig- 30 nate] term. The person first appointed by the minority leader of the 31 assembly shall have a [three] two year term. Each member of the commis- 32 sion shall be appointed thereafter for a term of four years. [Commission 33 membership of a judge or justice appointed by the governor or the chief 34 judge shall terminate if such member ceases to hold the judicial posi- 35 tion which qualified him or her for such appointment.] Membership shall 36 [also] terminate if a member attains a position which would have 37 rendered him or her ineligible for appointment at the time of his or her 38 appointment. A vacancy shall be filled by the appointing officer for the 39 remainder of the term. 40 4. If a member of the commission who is a prosecutor is the subject of 41 a complaint or investigation with respect to his or her qualifications, 42 conduct, fitness to perform or performance of his or her official 43 duties, he or she shall be disqualified from participating in any and 44 all proceedings with respect thereto. If a member of the commission is 45 employed in the same organization as the subject of a complaint or 46 investigation with respect to his or her qualifications, conduct, 47 fitness to perform, or performance of his or her official duties, he or 48 she shall be disqualified from participating in any and all proceedings 49 with respect thereto. 50 5. Each member of the commission shall serve without salary or other 51 compensation, but shall be entitled to receive actual and necessary 52 expenses incurred in the discharge of his or her duties. 53 6. For any action taken pursuant to subdivisions four through nine of 54 section four hundred ninety-nine-f or subdivision two of section four 55 hundred ninety-nine-e of this article, eight members of the commission 56 shall constitute a quorum of the commission and the concurrence of six

A. 781 4 1 members of the commission shall be necessary. Two members of a three 2 member panel of the commission shall constitute a quorum of the panel 3 and the concurrence of two members of the panel shall be necessary for 4 any action taken. 5 7. The commission shall appoint and at pleasure may remove an adminis- 6 trator who shall be a member of the bar who is not [a prosecutor or] an 7 active, former or retired prosecutor. The administrator of the commis- 8 sion may appoint such deputies, assistants, counsel, investigators and 9 other officers and employees as he or she may deem necessary, prescribe 10 their powers and duties, fix their compensation and provide for 11 reimbursement of their expenses within the amounts appropriated there- 12 for. No appointment of an administrator shall be valid unless approved 13 by an executive appointee, the appointee of the temporary president of 14 the senate, and the appointee of the speaker of the assembly. 15 § 499-d. Functions; powers and duties. The commission shall have the 16 following functions, powers and duties: 17 1. To conduct hearings and investigations, administer oaths or affir- 18 mations, subpoena witnesses, compel their attendance, examine them under 19 oath or affirmation and require the production of any books, records, 20 documents or other evidence that it may deem relevant or material to an 21 investigation; and the commission may designate any of its members or 22 any member of its staff to exercise any such powers, provided, however, 23 that except as is otherwise provided in section four hundred ninety- 24 nine-e of this article, only a member of the commission or the adminis- 25 trator shall exercise the power to subpoena witnesses or require the 26 production of books, records, documents or other evidence. [The prose- 27 cuting agency may inform the commission of its position that the commis- 28 sion's investigations will substantially interfere with the agency's own 29 investigation or prosecution. If the prosecuting agency, by affirmation 30 with specificity and particularity, informs the commission of its basis 31 for that position, the commission shall only exercise its powers in a 32 way that will not interfere with an agency's active investigation or 33 prosecution.] In accordance with section twenty-three hundred four of 34 the civil practice law and rules, a request to withdraw or modify a 35 subpoena issued pursuant to this article may be made to the person who 36 issued it and/or to the commission. The prosecuting agency may inform 37 the commission, by affirmation with specificity and particularity, in a 38 form and manner in which shall be prescribed by the commission, of its 39 position that the commission's investigations will substantially inter- 40 fere with the agency's own criminal investigation. If the prosecuting 41 agency informs the commission of its basis for that position, the 42 commission shall only exercise its powers in a way that will not inter- 43 fere with an agency's active investigation or prosecution and in no 44 event shall the commission exercise its powers prior to the earlier of: 45 (a) the filing of an accusatory instrument with respect to the crime or 46 crimes that led to such prosecuting agency's investigation and underlie 47 the complaint; or (b) one year from the commencement of the occurrence 48 of the crime or crimes that led to such prosecuting agency's investi- 49 gation and underlie the complaint. 50 2. To confer immunity when the commission deems it necessary and prop- 51 er in accordance with section 50.20 of the criminal procedure law; 52 provided, however, that at least forty-eight hours prior written notice 53 of the commission's intention to confer such immunity is given the 54 attorney general and the appropriate district attorney. 55 3. To request and receive from any court, department, division, board, 56 bureau, commission, or other agency of the state or political subdivi-

A. 781 5 1 sion thereof or any public authority such assistance, information and 2 data as will enable it properly to carry out its functions, powers and 3 duties. 4 4. To report annually, on or before the first day of March in each 5 year and at such other times as the commission shall deem necessary, to 6 the governor, the legislature and the chief judge of the court of 7 appeals, with respect to proceedings which have been finally determined 8 by the commission. Such reports may include legislative and administra- 9 tive recommendations. The contents of the annual report and any other 10 report shall conform to the provisions of this article relating to 11 confidentiality. 12 5. To adopt, promulgate, amend and rescind rules and procedures, not 13 otherwise inconsistent with law, necessary to carry out the provisions 14 and purposes of this article. All such rules and procedures shall be 15 filed in the offices of the chief administrator of the courts and the 16 secretary of state. 17 6. To do all other things necessary and convenient to carry out its 18 functions, powers and duties expressly set forth in this article. 19 § 499-e. Panels; referees. 1. The commission may delegate any of its 20 functions, powers and duties to a panel of three of its members, one of 21 whom shall be a member of the bar, except that no panel shall confer 22 immunity in accordance with section 50.20 of the criminal procedure law. 23 No panel shall be authorized to take any action pursuant to subdivisions 24 four through nine of section four hundred ninety-nine-f of this article 25 or subdivision two of this section. 26 2. The commission may designate a member of the bar who is not a 27 prosecutor or a member of the commission or its staff as a referee to 28 hear and report to the commission in accordance with the provisions of 29 section four hundred ninety-nine-f of this article. Such referee shall 30 be empowered to conduct hearings, administer oaths or affirmations, 31 subpoena witnesses, compel their attendance, examine them under oath or 32 affirmation and require the production of any books, records, documents 33 or other evidence that the referee may deem relevant or material to the 34 subject of the hearing. 35 § 499-f. Complaint; investigation; hearing and disposition. 1. The 36 commission shall receive, initiate, investigate and hear complaints with 37 respect to the conduct, qualifications, fitness to perform, or perform- 38 ance of official duties of any prosecutor, and may determine that a 39 prosecutor be admonished, or censured; and make a recommendation to the 40 governor that a prosecutor be removed from office for cause, for, 41 including, but not limited to, misconduct in office, as evidenced by his 42 or her departure from his or her obligations under appropriate statute, 43 case law, and/or New York Rules of Professional Conduct, 22 NYCRR 1200, 44 including but not limited to Rule 3.8 (Special Responsibilities of 45 Prosecutors and Other Government Lawyers), persistent failure to perform 46 his or her duties, [habitual intemperance and] conduct [in and outside 47 of his or her office,] prejudicial to the administration of justice, or 48 that a prosecutor be retired for mental or physical disability prevent- 49 ing the proper performance of his or her prosecutorial duties. A 50 complaint shall be in writing and signed by the complainant and, if 51 directed by the commission, shall be verified. Upon receipt of a 52 complaint (a) the commission shall conduct an investigation of the 53 complaint; or (b) the commission may dismiss the complaint if it deter- 54 mines that the complaint on its face lacks merit. If the complaint is 55 dismissed, the commission shall so notify the complainant. If the 56 commission shall have notified the prosecutor of the complaint, the

A. 781 6 1 commission shall also notify the prosecutor of such dismissal. Pursuant 2 to paragraph a of subdivision four of section ninety of this chapter, 3 any person being an attorney and counselor-at-law who shall be convicted 4 of a felony as defined in paragraph e of subdivision four of section 5 ninety of this chapter, shall upon such conviction, cease to be any 6 attorney and counselor-at-law, or to be competent to practice law as 7 such. 8 2. The commission may, on its own motion, initiate an investigation of 9 a prosecutor with respect to his or her qualifications, conduct, fitness 10 to perform or the performance of his or her official duties. Prior to 11 initiating any such investigation, the commission shall file as part of 12 its record a written complaint, signed by the administrator of the 13 commission, which complaint shall serve as the basis for such investi- 14 gation. 15 3. In the course of an investigation, the commission may require the 16 appearance of the prosecutor involved before it, in which event the 17 prosecutor shall be notified in writing of his or her required appear- 18 ance, either personally, at least three days prior to such appearance, 19 or by certified mail, return receipt requested, at least five days prior 20 to such appearance. In either case a copy of the complaint shall be 21 served upon the prosecutor at the time of such notification. The prose- 22 cutor shall have the right to be represented by counsel during any and 23 all stages of the investigation in which his or her appearance is 24 required and to present evidentiary data and material relevant to the 25 complaint. A transcript shall be made and kept with respect to all 26 proceedings at which testimony or statements under oath of any party or 27 witness shall be taken, and the transcript of the prosecutor's testimony 28 shall be made available to the prosecutor without cost. Such transcript 29 shall be confidential except as otherwise permitted by section four 30 hundred ninety-nine-g of this article. 31 4. If in the course of an investigation, the commission determines 32 that a hearing is warranted it shall direct that a formal written 33 complaint signed and verified by the administrator be drawn and served 34 upon the prosecutor involved, either personally or by certified mail, 35 return receipt requested. The prosecutor shall file a written answer to 36 the complaint with the commission within twenty days of such service. 37 If, upon receipt of the answer, or upon expiration of the time to 38 answer, the commission shall direct that a hearing be held with respect 39 to the complaint, the prosecutor involved shall be notified in writing 40 of the date of the hearing either personally, at least twenty days prior 41 thereto, or by certified mail, return receipt requested, at least twen- 42 ty-two days prior thereto. Upon the written request of the prosecutor, 43 the commission shall, at least five days prior to the hearing or any 44 adjourned date thereof, make available to the prosecutor without cost 45 copies of all documents which the commission intends to present at such 46 hearing and any written statements made by witnesses who will be called 47 to give testimony by the commission. The commission shall, in any case, 48 make available to the prosecutor at least five days prior to the hearing 49 or any adjourned date thereof any exculpatory evidentiary data and mate- 50 rial relevant to the complaint. The failure of the commission to timely 51 furnish any documents, statements and/or exculpatory evidentiary data 52 and material provided for herein shall not affect the validity of any 53 proceedings before the commission provided that such failure is not 54 substantially prejudicial to the prosecutor. The complainant may be 55 notified of the hearing and unless he or she shall be subpoenaed as a 56 witness by the prosecutor, his or her presence thereat shall be within

A. 781 7 1 the discretion of the commission. The hearing shall not be public unless 2 the prosecutor involved shall so demand in writing. At the hearing the 3 commission may take the testimony of witnesses and receive evidentiary 4 data and material relevant to the complaint. The prosecutor shall have 5 the right to be represented by counsel during any and all stages of the 6 hearing and shall have the right to call and cross-examine witnesses and 7 present evidentiary data and material relevant to the complaint. A tran- 8 script of the proceedings and of the testimony of witnesses at the hear- 9 ing shall be taken and kept with the records of the commission. 10 5. Subject to the approval of the commission, the administrator and 11 the prosecutor may agree on a statement of facts and may stipulate in 12 writing that the hearing shall be waived. In such a case, the commission 13 shall make its determination upon the pleadings and the agreed statement 14 of facts. 15 6. If, after a formal written complaint has been served pursuant to 16 subdivision four of this section, or during the course of or after a 17 hearing, the commission determines that no further action is necessary, 18 the complaint shall be dismissed and the complainant and the prosecutor 19 shall be so notified in writing. 20 7. After a hearing, the commission may determine that a prosecutor be 21 admonished or censured, or may recommend to the governor that a prosecu- 22 tor be removed from office for cause. The commission shall transmit its 23 written determination, together with its findings of fact and conclu- 24 sions of law and the record of the proceedings upon which its determi- 25 nation is based, to the [chief judge of the court of appeals] presiding 26 justices of the appellate division who shall cause a copy thereof to be 27 served either personally or by certified mail, return receipt requested, 28 on the prosecutor involved. Upon completion of service, the determi- 29 nation of the commission, its findings and conclusions and the record of 30 its proceedings shall be made public and shall be made available for 31 public inspection at the principal office of the commission and at the 32 office of the clerk of the [court of appeals] appellate division in the 33 department in which the alleged misconduct occurred. Records of a pros- 34 ecuting agency provided by the agency to the commission pursuant to this 35 article shall not be subject to disclosure by the commission under arti- 36 cle six of the public officers law. The prosecutor involved may either 37 accept the determination of the commission or make written request to 38 the [chief judge] presiding justices of the appellate division, within 39 thirty days after receipt of such determination, for a review thereof by 40 the [court of appeals] presiding justices of the appellate division. If 41 the commission has determined that a prosecutor be admonished or 42 censured, and if the prosecutor accepts such determination or fails to 43 request a review thereof by the [court of appeals] presiding justices of 44 the appellate division, the commission shall thereupon admonish or 45 censure him or her in accordance with its findings. If the commission 46 has recommended that a prosecutor be removed or retired and the prosecu- 47 tor accepts such determination or fails to request a review thereof by 48 the [court of appeals] presiding justices of the appellate division, the 49 [court of appeals] presiding justices of the appellate division shall 50 thereupon transmit the commission's findings to the governor who will 51 independently determine whether the prosecutor should be removed or 52 retired. 53 8. If the prosecutor requests a review of the determination of the 54 commission, in its review of a determination of the commission [pursuant 55 to the second undesignated paragraph of subdivision b of section three 56 of article six of the state constitution], the [court of appeals]

A. 781 8 1 presiding justices of the appellate division shall review the commis- 2 sion's findings of fact and conclusions of law on the record of the 3 proceedings upon which the commission's determination was based. After 4 such review, the [court] presiding justices of the appellate division 5 may accept or reject the determined sanction; impose a different sanc- 6 tion including admonition or censure, recommend removal or retirement 7 for the reasons set forth in subdivision one of this section; or impose 8 no sanction. However, if the [court of appeals recommends] presiding 9 justices of the appellate division recommend removal or retirement, [it] 10 they shall, together with the commission, transmit the entire record to 11 the governor who will independently determine whether a prosecutor 12 should be removed or retired. 13 9. (a) The [court of appeals] presiding justices of the appellate 14 division may suspend a prosecutor from exercising the powers of his or 15 her office while there is pending a determination by the commission for 16 his or her removal or retirement, or while he or she is charged in this 17 state with a felony by an indictment or an information filed pursuant to 18 section six of article one of the constitution. The suspension shall 19 terminate upon conviction of a felony resulting in such prosecutor's 20 disbarment pursuant to paragraph a of subdivision four of section ninety 21 of this chapter. If such conviction becomes final, he or she shall be 22 removed from office. The suspension shall be terminated upon reversal 23 of the conviction and dismissal of the accusatory instrument. 24 (b) Upon the recommendation of the commission or on its own motion, 25 the [court] presiding justices of the appellate division may suspend a 26 prosecutor from office when he or she is charged with a crime punishable 27 as a felony under the laws of this state, or any other crime which 28 involves moral turpitude. The suspension shall terminate upon 29 conviction of a felony resulting in such prosecutor's disbarment pursu- 30 ant to paragraph a of subdivision four of section ninety of this chap- 31 ter. The suspension shall continue upon conviction of any other crime 32 which involves moral turpitude and, if such conviction becomes final, he 33 or she shall be removed from office. The suspension shall be terminated 34 upon reversal of the conviction and dismissal of the accusatory instru- 35 ment. 36 (c) A prosecutor who is suspended from office by the [court] presiding 37 justices of the appellate division shall receive his or her salary 38 during such period of suspension, unless the court directs otherwise. If 39 the court has so directed and such suspension is thereafter terminated, 40 the [court] presiding justices of the appellate division may direct that 41 he or she shall be paid his or her salary for such period of suspension. 42 (d) Nothing in this subdivision shall prevent the commission from 43 determining that a prosecutor be admonished or censured or prevent the 44 commission from recommending removal or retirement pursuant to subdivi- 45 sion seven of this section. 46 10. If during the course of or after an investigation or hearing, the 47 commission determines that the complaint or any allegation thereof 48 warrants action, other than in accordance with the provisions of subdi- 49 visions seven through nine of this section, within the powers of: (a) a 50 person having administrative jurisdiction over the prosecutor involved 51 in the complaint; or (b) an appellate division of the supreme court; or 52 (c) a presiding justice of an appellate division of the supreme court; 53 or (d) the chief judge of the court of appeals; or (e) the governor 54 pursuant to subdivision (b) of section thirteen of article thirteen of 55 the constitution; or (f) an applicable district attorney's office or 56 other prosecuting agency, the commission shall refer such complaint or

A. 781 9 1 the appropriate allegations thereof and any evidence or material related 2 thereto to such person, agency or court for such action as may be deemed 3 proper or necessary. 4 11. The commission shall notify the complainant of its disposition of 5 the complaint. 6 12. In the event of removal from office of any prosecutor, pursuant to 7 subdivision seven or eight or paragraph (a) or (b) of subdivision nine 8 of this section, a vacancy shall exist pursuant to article three of the 9 public officers law. 10 § 499-g. Confidentiality of records. Except as hereinafter provided, 11 all complaints, correspondence, commission proceedings and transcripts 12 thereof, other papers and data and records of the commission shall be 13 confidential and shall not be made available to any person except pursu- 14 ant to section four hundred ninety-nine-f of this article. The commis- 15 sion and its designated staff personnel shall have access to confiden- 16 tial material in the performance of their powers and duties. If the 17 prosecutor who is the subject of a complaint so requests in writing, 18 copies of the complaint, the transcripts of hearings by the commission 19 thereon, if any, and the dispositive action of the commission with 20 respect to the complaint, such copies with any reference to the identity 21 of any person who did not participate at any such hearing suitably 22 deleted therefrom, except the subject prosecutor or complainant, shall 23 be made available for inspection and copying to the public, or to any 24 person, agency or body designated by such prosecutor. 25 § 499-h. Breach of confidentiality of commission information. 1. Any 26 staff member, employee or agent of the state commission on prosecutorial 27 conduct who violates any of the provisions of section four hundred nine- 28 ty-nine-g of this article shall be subject to a reprimand, a fine, 29 suspension or removal by the commission. 30 2. Within ten days after the commission has acquired knowledge that a 31 staff member, employee or agent of the commission has or may have 32 breached the provisions of section four hundred ninety-nine-g of this 33 article, written charges against such staff member, employee or agent 34 shall be prepared and signed by the chairman of the commission and filed 35 with the commission. Within five days after receipt of charges, the 36 commission shall determine, by a vote of the majority of all the members 37 of the commission, whether probable cause for such charges exists. If 38 such determination is affirmative, within five days thereafter a written 39 statement specifying the charges in detail and outlining his or her 40 rights under this section shall be forwarded to the accused staff 41 member, employee or agent by certified mail. The commission may suspend 42 the staff member, employee or agent, with or without pay, pending the 43 final determination of the charges. Within ten days after receipt of the 44 statement of charges, the staff member, employee or agent shall notify 45 the commission in writing whether he or she desires a hearing on the 46 charges. The failure of the staff member, employee or agent to notify 47 the commission of his or her desire to have a hearing within such period 48 of time shall be deemed a waiver of the right to a hearing. If the hear- 49 ing has been waived, the commission shall proceed, within ten days after 50 such waiver, by a vote of a majority of all the members of such commis- 51 sion, to determine the charges and fix the penalty or punishment, if 52 any, to be imposed as hereinafter provided. 53 3. Upon receipt of a request for a hearing, the commission shall sche- 54 dule a hearing, to be held at the commission offices, within twenty days 55 after receipt of the request therefor, and shall immediately notify in

A. 781 10 1 writing the staff member, employee or agent of the time and place there- 2 of. 3 4. The commission shall have the power to establish necessary rules 4 and procedures for the conduct of hearings under this section. Such 5 rules shall not require compliance with technical rules of evidence. All 6 such hearings shall be held before a hearing panel composed of three 7 members of the commission selected by the commission. Each hearing shall 8 be conducted by the [chairman] chairperson of the panel who shall be 9 selected by the panel. The staff member, employee or agent shall have a 10 reasonable opportunity to defend himself and to testify on his or her 11 own behalf. He or she shall also have the right to be represented by 12 counsel, to subpoena witnesses and to cross-examine witnesses. All 13 testimony taken shall be under oath which the [chairman] chairperson of 14 the panel is hereby authorized to administer. A record of the 15 proceedings shall be made and a copy of the transcript of the hearing 16 shall, upon written request, be furnished without charge to the staff 17 member, employee or agent involved. 18 5. Within five days after the conclusion of a hearing, the panel shall 19 forward a report of the hearing, including its findings and recommenda- 20 tions, including its recommendations as to penalty or punishment, if one 21 is warranted, to the commission and to the accused staff member, employ- 22 ee or agent. Within ten days after receipt of such report the commission 23 shall determine whether it shall implement the recommendations of the 24 panel. If the commission shall determine to implement such recommenda- 25 tions, which shall include the penalty or punishment, if any, of a 26 reprimand, a fine, suspension for a fixed time without pay or dismissal, 27 it shall do so within five days after such determination. If the charges 28 against the staff member, employee or agent are dismissed, he or she 29 shall be restored to his or her position with full pay for any period of 30 suspension without pay and the charges shall be expunged from his or her 31 record. 32 6. The accused staff member, employee or agent may seek review of the 33 recommendation by the commission by way of a special proceeding pursuant 34 to article seventy-eight of the civil practice law and rules. 35 § 499-i. Resignation not to divest commission or [court of appeals] 36 presiding justices of the appellate division of jurisdiction. The 37 jurisdiction of the [court of appeals] presiding justices of the appel- 38 late division and the commission pursuant to this article shall continue 39 notwithstanding that a prosecutor resigns from office after a recommen- 40 dation by the commission that the prosecutor be removed from office has 41 been transmitted to the [chief judge of the court of appeals] presiding 42 justices of the appellate division, or in any case in which the commis- 43 sion's recommendation that a prosecutor should be removed from office 44 shall be transmitted to the [chief judge of the court of appeals] 45 presiding justices of the appellate division within one hundred twenty 46 days after receipt by the chief administrator of the courts of the 47 resignation of such prosecutor. Any determination by the governor that a 48 prosecutor who has resigned should be removed from office shall render 49 such prosecutor ineligible to hold any other prosecutorial office. 50 § 499-j. Effect. 1. The powers, duties, and functions of the state 51 commission on prosecutorial conduct shall not supersede the powers and 52 duties of the governor as outlined in section thirteen of article thir- 53 teen of the New York state constitution. 54 2. Removal or retirement of a prosecutor pursuant to this article 55 shall be considered a removal from office pursuant to section thirty of 56 the public officers law.

A. 781 11 1 § 2. Section 3 of chapter 202 of the laws of 2018 amending the judici- 2 ary law relating to establishing the commission on prosecutorial 3 conduct, is amended to read as follows: 4 § 3. This act shall take effect on the first of [January] April next 5 succeeding the date upon which it shall have become a law. 6 § 3. If any part or provision of this act is adjudged by a court of 7 competent jurisdiction to be unconstitutional or otherwise invalid, such 8 judgment shall not affect or impair any other part or provision of this 9 act, but shall be confined in its operation to such part or provision. 10 § 4. This act shall take effect immediately.