2023 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.