STATE OF NEW YORK ________________________________________________________________________

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2019-2020 Regular Sessions

IN ASSEMBLY

January 15, 2019 ___________

Introduced by M. of A. PERRY, MOSLEY, GOTTFRIED, GANTT, COOK, PRETLOW, PEOPLES-STOKES, L. ROSENTHAL, CRESPO, WEPRIN, RODRIGUEZ, QUART, KIM, PICHARDO, WALKER, BARRON, SEAWRIGHT, JOYNER, BLAKE, JAFFEE, ABINANTI, D'URSO, JEAN-PIERRE, HYNDMAN, NIOU, TAYLOR, VANEL, RIVERA, ARROYO, ZEBROWSKI, FRONTUS, CRUZ, AUBRY, FERNANDEZ, DE LA ROSA -- Multi-Spon- sored by -- M. of A. CARROLL, DAVILA, ORTIZ, SIMON -- read once and referred to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee

AN ACT to amend the executive law and the criminal procedure law, in relation to establishing the office of special investigation

The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:

1 Section 1. The executive law is amended by adding a new section 70-b 2 to read as follows: 3 § 70-b. Office of special investigation. 1. There shall be estab- 4 lished within the department of law an office of special investigation 5 which shall investigate and, if warranted, prosecute any alleged crimi- 6 nal offense or offenses committed by a person who is a police officer as 7 defined in subdivision thirty-four of section 1.20 of the criminal 8 procedure law, or a peace officer as defined in subdivision thirty-three 9 of section 1.20 of the criminal procedure law, concerning the death, or 10 the investigation of the death, of any person where such death resulted 11 from or potentially resulted from any encounter with such police officer 12 or peace officer, whether or not such person was in custody. The office 13 shall have the powers and duties specified in subdivisions two and eight 14 of section sixty-three of this article for purposes of this section, and 15 shall possess and exercise all the prosecutorial powers necessary to 16 investigate and, if warranted, prosecute such offenses, provided, howev- 17 er, that approval, direction or requirement of the governor as may 18 otherwise be required by such subdivisions shall not be required. The

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05660-02-9

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1 jurisdiction of the office of special investigation shall displace and 2 supersede in all ways the authority and jurisdiction of the county 3 district attorney for the investigation and prosecution of such 4 offenses. In any investigation and prosecution conducted pursuant to 5 this section, the district attorney shall only exercise such powers and 6 perform such duties as designated to him or her by the office of special 7 investigation. The office of special investigation within the department 8 of law shall be headed by the deputy attorney general appointed by the 9 attorney general pursuant to subdivision three of this section. 10 2. (a) In any investigation and prosecution undertaken pursuant to 11 this section, the office of special investigation shall conduct a full, 12 reasoned, and independent investigation including, but not limited to: 13 (i) gathering and analyzing evidence; (ii) conducting witness inter- 14 views; and (iii) reviewing and commissioning any necessary investigative 15 and scientific reports, and reviewing audio and video recordings. 16 (b) In all matters pursuant to subdivision one of this section, the 17 deputy attorney general, appointed pursuant to subdivision three of this 18 section, may appear in person or by any assistant attorney general he or 19 she may designate before any court or grand jury in the state and exer- 20 cise all of the powers and perform all of the duties with respect to 21 such actions or proceedings which the district attorney would otherwise 22 be authorized or required to exercise or perform. 23 3. Notwithstanding any other provision of law, the attorney general 24 shall, without civil service examination, appoint and employ, fix his or 25 her compensation, and at his or her pleasure remove, a deputy attorney 26 general in charge of the office of special investigation. The attorney 27 general may, and without civil service examination, appoint and employ, 28 and at pleasure remove, such assistant deputies, investigators and other 29 persons as he or she deems necessary, determine their duties and fix 30 their compensation. 31 4. (a) Where an investigation or prosecution of the type described in 32 subdivision one of this section involves acts that appear to have been 33 engaged in by a police officer or peace officer employed by the state of 34 New York, the attorney general shall promptly apply to a superior court 35 in the county in which such acts allegedly occurred for the appointment 36 of an independent counsel to investigate and potentially prosecute such 37 matter. Notwithstanding the provisions of any other law, such court 38 shall thereupon appoint a qualified and experienced attorney at law, 39 capable of investigating and prosecuting such matter, not employed as a 40 district attorney, assistant district attorney or assistant attorney 41 general, and having no personal or professional conflicts of interest, 42 to act as an independent counsel with respect to such matter, at a 43 reasonable and appropriate hourly rate to be set by such court. 44 (b) The attorney general shall promptly notify the state comptroller, 45 the court and the public when such appointment has been made and 46 accepted by such attorney. Reasonable fees for attorneys and investi- 47 gation and litigation expenses shall be paid by the state to such 48 private counsel from time to time during the pendency of the investi- 49 gation and any prosecution and appeal, upon the audit and warrant of the 50 comptroller. Any dispute with respect to the payment of such fees and 51 expenses shall be resolved by the court upon motion or by way of a 52 special proceeding. 53 (c) In all matters pursuant to subdivision one of this section, the 54 independent counsel appointed pursuant to this subdivision shall possess 55 and exercise the powers and duties of the office of special investi- 56 gation pursuant to subdivisions one and two of this section, and may

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1 appear in person or by any assistant independent counsel he or she may 2 designate before any court or grand jury in the state and exercise all 3 of the powers and perform all of the duties with respect to such actions 4 or proceedings which the district attorney would otherwise be authorized 5 or required to exercise or perform. 6 5. (a) With respect to any investigation pursuant to this section, the 7 office of special investigation or the independent counsel, as the case 8 may be, shall, as a part of the duties under this section, prepare and 9 publicly release a report on all cases where: (i) the office or inde- 10 pendent counsel, as the case may be, declines to present evidence to a 11 grand jury regarding the death of a person as described in subdivision 12 one of this section; or (ii) the grand jury declines to return an 13 indictment on any felony charges. 14 (b) The report shall include: (i) with respect to subparagraph (i) of 15 paragraph (a) of this subdivision, an explanation as to why such office 16 or independent counsel declined to present evidence to a grand jury; 17 (ii) with respect to subparagraph (ii) of paragraph (a) of this subdivi- 18 sion, a report of the outcome of the grand jury proceedings and, to the 19 greatest extent possible, an explanation of that outcome; and (iii) any 20 recommendations for systemic or other reforms arising from the investi- 21 gation. 22 6. Six months after this subdivision takes effect, and annually on 23 such date thereafter, the office of special investigation shall issue a 24 report, which shall be made available to the public and posted on the 25 website of the department of law, which shall provide information on the 26 matters investigated by such office, and by independent counsel 27 appointed pursuant to subdivision four of this section, during such 28 reporting period. The information presented shall include, but not be 29 limited to: the county and geographic location of each matter investi- 30 gated; a description of the circumstances of each case; racial, ethnic, 31 age, gender and other demographic information concerning the persons 32 involved or alleged to be involved; information concerning whether a 33 criminal charge or charges were filed against any person involved or 34 alleged to be involved in such matter; the nature of such charges; and 35 the status or, where applicable, outcome with respect to all such crimi- 36 nal charges. Such report shall also include recommendations for any 37 systemic or other reforms recommended as a result of such investi- 38 gations. 39 § 2. Subdivision 6 of section 190.25 of the criminal procedure law is 40 amended to read as follows: 41 6. (a) The legal advisors of the grand jury are the court and the 42 district attorney, and the grand jury may not seek or receive legal 43 advice from any other source. Where necessary or appropriate, the court 44 or the district attorney, or both, must instruct the grand jury concern- 45 ing the law with respect to its duties or any matter before it, and such 46 instructions must be recorded in the minutes. 47 (b) Notwithstanding paragraph (a) of this subdivision, or any other 48 law to the contrary, in any proceeding before a grand jury that involves 49 the submission of a criminal charge or charges against a person or 50 persons for an act or acts that occurred at a time when such person was 51 a police officer or peace officer, and that concern the death of any 52 person that resulted from or potentially resulted from any encounter 53 with such police officer or peace officer, the court, after consultation 54 on the record with the prosecutor, shall instruct the grand jury as to 55 the criminal charge or charges to be submitted and the law applicable to 56 such charges and to the matters before such grand jury. Thereafter, any

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1 questions, requests for exhibits, requests for readback of testimony or 2 other requests from the grand jury or a member thereof shall be provided 3 to the court, and addressed by the court after consultation on the 4 record with the prosecutor. 5 (c) Notwithstanding the provisions of subdivision four of this 6 section, or any other law to the contrary, following final action by the 7 grand jury on the charge or charges submitted pursuant to paragraph (b) 8 of this subdivision, the court shall make such legal instructions and 9 charges submitted to such grand jury available to the public on request, 10 provided that the names of witnesses and any information that would 11 identify such witnesses included in such legal instructions or charges 12 shall be redacted when the court determines, in a written order released 13 to the public, and issued after notice to the people and the requester 14 and an opportunity to be heard and reasonable efforts to notify and 15 provide an opportunity to be heard to any other appropriate person or 16 agency, that there is a reasonable likelihood that public release of 17 such information would endanger any individual. 18 (d) Nothing in this paragraph or paragraphs (b) or (c) of this subdi- 19 vision shall be interpreted as limiting or restricting any broader right 20 of access to grand jury materials under any other law, common law or 21 court precedent. 22 § 3. This act shall take effect on the first of April next succeeding 23 the date upon which it shall have become a law.