N.Y. JUD Law § 499-F — New York Code / Act JUD / Article 15-A / Section 499-F
Complaint; investigation; hearing and disposition
Status: in_force

§ 499-f. Complaint; investigation; hearing and disposition. 1. The\ncommission shall receive, initiate, investigate and hear complaints with\nrespect to the conduct or performance of official duties of any\nprosecutor; and may make a recommendation to the governor that a\nprosecutor be removed from office for cause, for, including, but not\nlimited to, misconduct in office, as evidenced by his or her departure\nfrom his or her obligations under appropriate statute, case law, and/or\nNew York Rules of Professional Conduct, 22 NYCRR 1200, or any subset\nthereof or successor thereto, including but not limited to Rule 3.8\n(Special Responsibilities of Prosecutors and Other Government Lawyers),\npersistent failure to perform his or her duties, conduct prejudicial to\nthe administration of justice, or that a prosecutor be retired for\nmental or physical disability preventing the proper performance of his\nor her prosecutorial duties. A complaint shall be in writing and signed\nby the complainant and, if directed by the commission, shall be\nverified. Upon receipt of a complaint (a) the commission shall conduct\nan investigation of the complaint; or (b) the commission may dismiss the\ncomplaint if it determines that the complaint on its face lacks merit.\nIf the complaint is dismissed, the commission shall so notify the\ncomplainant. If the commission shall have notified the prosecutor of the\ncomplaint, the commission shall also notify the prosecutor of such\ndismissal. Pursuant to paragraph a of subdivision four of section ninety\nof this chapter, any person being an attorney and counselor-at-law who\nshall be convicted of a felony as defined in paragraph e of subdivision\nfour of section ninety of this chapter, shall upon such conviction,\ncease to be any attorney and counselor-at-law, or to be competent to\npractice law as such.\n  2. The commission may, on its own motion, initiate an investigation of\na prosecutor with respect to his or her conduct or the performance of\nhis or her official duties. Prior to initiating any such investigation,\nthe commission shall file as part of its record a written complaint,\nsigned by the administrator of the commission, which complaint shall\nserve as the basis for such investigation.\n  3. In the course of an investigation, the commission may require the\nappearance of the prosecutor involved before it, in which event the\nprosecutor shall be notified in writing of his or her required\nappearance, either personally, at least three days prior to such\nappearance, or by certified mail, return receipt requested, at least\nfive days prior to such appearance. In either case a copy of the\ncomplaint shall be served upon the prosecutor at the time of such\nnotification. The prosecutor shall have the right to be represented by\ncounsel during any and all stages of the investigation in which his or\nher appearance is required and to present evidentiary data and material\nrelevant to the complaint. A transcript shall be made and kept with\nrespect to all proceedings at which testimony or statements under oath\nof any party or witness shall be taken, and the transcript of the\nprosecutor's testimony shall be made available to the prosecutor without\ncost. Such transcript shall be confidential except as otherwise\npermitted by section four hundred ninety-nine-g of this article.\n  4. If in the course of an investigation, the commission determines\nthat a hearing is warranted it shall direct that a formal written\ncomplaint signed and verified by the administrator be drawn and served\nupon the prosecutor involved, either personally or by certified mail,\nreturn receipt requested. The prosecutor shall file a written answer to\nthe complaint with the commission within twenty days of such service.\nIf, upon receipt of the answer, or upon expiration of the time to\nanswer, the commission shall direct that a hearing be held with respect\nto the complaint, the prosecutor involved shall be notified in writing\nof the date of the hearing either personally, at least twenty days prior\nthereto, or by certified mail, return receipt requested, at least\ntwenty-two days prior thereto. Upon the written request of the\nprosecutor, the commission shall, at least five days prior to the\nhearing or any adjourned date thereof, make available to the prosecutor\nwithout cost copies of all documents which the commission intends to\npresent at such hearing and any written statements made by witnesses who\nwill be called to give testimony by the commission. The commission\nshall, in any case, make available to the prosecutor at least five days\nprior to the hearing or any adjourned date thereof any exculpatory\nevidentiary data and material relevant to the complaint. The failure of\nthe commission to timely furnish any documents, statements and/or\nexculpatory evidentiary data and material provided for herein shall not\naffect the validity of any proceedings before the commission provided\nthat such failure is not substantially prejudicial to the prosecutor.\nThe complainant may be notified of the hearing and unless he or she\nshall be subpoenaed as a witness by the prosecutor, his or her presence\nthereat shall be within the discretion of the commission. The hearing\nshall not be public unless the prosecutor involved shall so demand in\nwriting. At the hearing the commission may take the testimony of\nwitnesses and receive evidentiary data and material relevant to the\ncomplaint. The prosecutor shall have the right to be represented by\ncounsel during any and all stages of the hearing and shall have the\nright to call and cross-examine witnesses and present evidentiary data\nand material relevant to the complaint. A transcript of the proceedings\nand of the testimony of witnesses at the hearing shall be taken and kept\nwith the records of the commission.\n  5. Subject to the approval of the commission, the administrator and\nthe prosecutor may agree on a statement of facts and may stipulate in\nwriting that the hearing shall be waived. In such a case, the commission\nshall rely upon the agreed statement of facts in forming the\ncommission's findings of fact.\n  6. If, after a formal written complaint has been served pursuant to\nsubdivision four of this section, or during the course of or after a\nhearing, the commission determines that no further action is necessary,\nthe complaint shall be dismissed and the complainant and the prosecutor\nshall be so notified in writing.\n  7. The commission shall transmit its findings of fact and\nrecommendations and the record of the proceedings upon which such\nfindings and recommendations are based, to the attorney grievance\ncommittee of the appellate division in the department where the\nprosecutor was admitted to practice, which shall cause a copy thereof to\nbe served either personally or by certified mail, return receipt\nrequested, on the prosecutor involved. Upon completion of service, the\ncommission's findings and recommendations and the record of its\nproceedings shall be made public and shall be made available for public\ninspection at the principal office of the commission and at the office\nof the clerk of the appellate division in the department in which the\nrecord was filed. If the commission's findings and recommendations\ninclude any recommendation that any prosecutor should be removed or\nretired, the commission shall simultaneously transmit its findings,\nrecommendations, and record of its proceedings to the governor. Records\nof a prosecuting agency provided by the agency to the commission\npursuant to this article shall not be subject to disclosure by the\ncommission under article six of the public officers law.\n  8. The attorney grievance committee of the appellate division that\nreceives the commission's report may accept or reject the recommended\nsanction; impose a different sanction; or impose no sanction.\n  9. If during the course of or after an investigation or hearing, the\ncommission determines that the complaint or any allegation thereof\nwarrants action, other than in accordance with the provisions of\nsubdivisions seven and eight of this section, within the powers of: (a)\na person having administrative jurisdiction over the prosecutor involved\nin the complaint; or (b) the attorney grievance committee of the\nappellate division in the department where the prosecutor was admitted\nto practice; or (c) the governor pursuant to subdivision (b) of section\nthirteen of article thirteen of the constitution; or (d) an applicable\ndistrict attorney's office, the commission shall refer such complaint or\nthe appropriate allegations thereof and any evidence or material related\nthereto to such person, agency or court for such action as may be deemed\nproper or necessary.\n  10. The commission shall notify the complainant of its disposition of\nthe complaint.\n