N.Y. Executive Law § 70-b: Office of special investigation

§ 70-b. Office of special investigation. 1. There shall be established

within the office of the attorney general an office of special

investigation. Notwithstanding any other provision of law, the office of

special investigation shall investigate and, if warranted, prosecute any

alleged criminal offense or offenses committed by a person, whether or

not formally on duty, who is a police officer, as defined in subdivision

thirty-four of section 1.20 of the criminal procedure law, or a peace

officer as defined in section 2.10 of the criminal procedure law,

provided that such peace officer is employed or contracted by an

education, public health, social service, parks, housing or corrections

agency, or is a peace officer as defined in subdivision twenty-five of

section 2.10 of the criminal procedure law, concerning any incident in

which the death of a person, whether in custody or not, is caused by an

act or omission of such police officer or peace officer or in which the

attorney general determines there is a question as to whether the death

was in fact caused by an act or omission of such police officer or peace

officer.

2. The attorney general has investigative authority and criminal

jurisdiction under this section at the time of the death of the person

and the attorney general retains investigative authority and criminal

jurisdiction over the incident unless the attorney general determines

that such incident does not meet the requirements of this section. If

the attorney general determines the incident does not meet the

requirements for the attorney general to have investigative authority

and criminal jurisdiction pursuant to this section, the attorney general

shall, as soon as practicable, provide written notice of such

determination to the district attorney for the county in which the

incident occurred.

3. In connection with any particular incident encompassed by this

section, the attorney general shall conduct a full, reasoned and

independent investigation, including but not limited to: (a) gathering

and analyzing evidence; (b) conducting witness interviews; (c) reviewing

and commissioning any necessary investigative and scientific reports;

and (d) reviewing audio and video-recordings. The attorney general shall

be empowered to subpoena witnesses, compel their attendance, examine

them under oath before himself or herself or a magistrate and require

that any books, records, documents or papers relevant or material to the

inquiry be turned over to him or her for inspection, examination or

audit, pursuant to the civil practice law and rules, in connection with

such incident.

3-a. (a) The attorney general shall maintain the confidentiality of

all video footage and audio recordings received and reviewed.

(b) Disclosure of any audio recordings or video footage shall be

delayed, at the attorney general's discretion, only if such a disclosure

would compromise an ongoing criminal investigation or prosecution, or at

the request of the decedent's family.

(c) Redactions of audio records or video footage shall be made

pursuant to its video release policy.

(d) Nothing in this subdivision shall be construed to prohibit or

restrict the disclosure of audio recordings or video footage to any

person or entity otherwise lawfully entitled to receive such recordings

or footage pursuant to law, court order, or lawful process.

4. The attorney general shall have criminal jurisdiction over any

criminal conduct arising from any incident herein, and shall exercise

all of the powers and perform all of the duties with respect to such

actions or proceedings that a district attorney would otherwise be

authorized or required to exercise or perform, including all the powers

necessary to prosecute acts and omissions and alleged acts and omissions

to obstruct, hinder or interfere with any inquiry, prosecution, trial or

judgment arising from the incident. The criminal jurisdiction of the

office of special investigation shall displace and supersede the

jurisdiction of the district attorney where the incident occurred; and

such district attorney shall only have the powers and duties reserved to

him or her in writing by the attorney general.

5. The attorney general shall designate a deputy attorney general for

special investigation to exercise the powers and duties of the office of

special investigation, who shall be in the exempt class of the civil

service. The deputy attorney general may designate deputies or

assistants, who shall be in the exempt class of the civil service, as

necessary and appropriate. The other employees of the office of special

investigation within the department of law, who are not otherwise

exempt, shall all be in the competitive class of the civil service and

shall be considered for purposes of article fourteen of the civil

service law to be public employees in the civil service of the state,

and shall be assigned to the appropriate collective bargaining unit.

Employees serving in positions in newly created titles shall be assigned

to the same collective bargaining units as they would have been assigned

to were such titles created prior to the establishment of the office of

special investigation within the department of law by this chapter. The

deputy attorney general for special investigation may appear and conduct

proceedings in person or by his or her deputy or assistant before any

court or grand jury in connection with proceedings under this section.

6. (a) For any incident under this section, the office of special

investigation shall issue a public report and post the report on its

website whenever the office of special investigation initiates an

investigation and (i) the office of special investigation declines to

present evidence to a grand jury or (ii) the office of special

investigation does present evidence to a grand jury but the grand jury

declines to return indictment on any charges. The report will include,

to the extent possible and lawful, the results of the investigation of

the incident.

(b) The report shall also include: (i) with respect to subparagraph

(i) of paragraph (a) of this subdivision, an explanation as to why the

office of special investigation declined to present evidence to a grand

jury; and (ii) any recommendations for systemic or other reforms arising

from the investigation.

7. Six months after this subdivision takes effect, and annually on

such date thereafter, the office of special investigation shall issue a

report, which shall be made available to the public and posted on the

website of the department of law, which shall provide information on the

matters investigated by such office during such reporting period. The

information presented shall include, but not be limited to: the county

and geographic location of each matter investigated; a description of

the circumstances of each case; racial, ethnic, age, gender and other

demographic information concerning the persons involved or alleged to be

involved; information concerning whether a criminal charge or charges

were filed against any person involved or alleged to be involved in such

matter; the nature of such charges; and the status or, where applicable,

outcome with respect to all such criminal charges. Such report shall

also include recommendations for any systemic or other reforms

recommended as a result of such investigations.

8. (a) Notwithstanding any other provision of law, rule or regulation

to the contrary, in a matter in which the attorney general's authority

established under this section conflicts, or has a reasonable risk of

conflicting, with the attorney general's representation of state

employees in civil litigation under section seventeen of the public

officers law, the attorney general may designate a deputy attorney

general or assistant attorney general, including any person designated

under subdivision five of this section, as provided by section nine of

the public officers law, to act as attorney general for that matter in

the attorney general's stead.

(b) Notwithstanding any other provision of law, rule or regulation to

the contrary, the attorney general shall establish through rules and

regulations, processes and procedures for screening (i) the person so

designated pursuant to paragraph (a) of this subdivision, and the entire

prosecution team, from records, communication, and information related

to the civil defense of a police officer or peace officer as defined in

subdivision one of this section, and (ii) persons involved in the civil

defense of a police officer or peace officer as defined in subdivision

one of this section from records, communication, and information related

to the investigation and, where appropriate, prosecution of state peace

or police officers under this section. The rules and regulations

establishing screens shall be sufficient to satisfy the rules of

professional conduct regarding conflicts and to protect the rights of

state peace and police officers who are the subject of an investigation

or prosecution under this section by ensuring that the individuals

conducting or otherwise involved in such investigation or prosecution do

not have access to any confidential information obtained in the course

of the office's civil defense of state employees.