N.Y. Judiciary Law § 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.