NY Jud L § 499-F (2021)
2021 New York Laws JUD - Judiciary Article 15-A - State Commission on Prosecutorial Conduct 499-F - Complaint; Investigation; Hearing and Disposition.

§  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.