* § 499-f. Complaint; investigation; hearing and disposition. 1. The\ncommission shall receive, initiate, investigate and hear complaints with\nrespect to the conduct, qualifications, fitness to perform, or\nperformance of official duties of any prosecutor, and may determine that\na prosecutor be admonished, or censured; and make a recommendation to\nthe governor that a prosecutor be removed from office for cause, for,\nincluding, but not limited to, misconduct in office, as evidenced by his\nor her departure from his or her obligations under appropriate statute,\ncase law, and/or New York Rules of Professional Conduct, 22 NYCRR 1200,\nincluding but not limited to Rule 3.8 (Special Responsibilities of\nProsecutors and Other Government Lawyers), persistent failure to perform\nhis or her duties, habitual intemperance and conduct, in and outside of\nhis or her office, prejudicial to the administration of justice, or that\na prosecutor be retired for mental or physical disability preventing the\nproper performance of his or her prosecutorial duties. A complaint shall\nbe in writing and signed by the complainant and, if directed by the\ncommission, shall be verified. Upon receipt of a complaint (a) the\ncommission shall conduct an investigation of the complaint; or (b) the\ncommission may dismiss the complaint if it determines that the complaint\non its face lacks merit. If the complaint is dismissed, the commission\nshall so notify the complainant. If the commission shall have notified\nthe prosecutor of the complaint, the commission shall also notify the\nprosecutor of such dismissal. Pursuant to paragraph a of subdivision\nfour of section ninety of this chapter, any person being an attorney and\ncounselor-at-law who shall be convicted of a felony as defined in\nparagraph e of subdivision four of section ninety of this chapter, shall\nupon such conviction, cease to be any attorney and counselor-at-law, or\nto be competent to practice law as such.\n 2. The commission may, on its own motion, initiate an investigation of\na prosecutor with respect to his or her qualifications, conduct, fitness\nto perform or the performance of his or her official duties. Prior to\ninitiating any such investigation, the commission shall file as part of\nits record a written complaint, signed by the administrator of the\ncommission, which complaint shall serve as the basis for such\ninvestigation.\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 make its determination upon the pleadings and the agreed statement\nof facts.\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. After a hearing, the commission may determine that a prosecutor be\nadmonished or censured, or may recommend to the governor that a\nprosecutor be removed from office for cause. The commission shall\ntransmit its written determination, together with its findings of fact\nand conclusions of law and the record of the proceedings upon which its\ndetermination is based, to the chief judge of the court of appeals who\nshall cause a copy thereof to be served either personally or by\ncertified mail, return receipt requested, on the prosecutor involved.\nUpon completion of service, the determination of the commission, its\nfindings and conclusions and the record of its proceedings shall be made\npublic and shall be made available for public inspection at the\nprincipal office of the commission and at the office of the clerk of the\ncourt of appeals. The prosecutor involved may either accept the\ndetermination of the commission or make written request to the chief\njudge, within thirty days after receipt of such determination, for a\nreview thereof by the court of appeals. If the commission has determined\nthat a prosecutor be admonished or censured, and if the prosecutor\naccepts such determination or fails to request a review thereof by the\ncourt of appeals, the commission shall thereupon admonish or censure him\nor her in accordance with its findings. If the commission has\nrecommended that a prosecutor be removed or retired and the prosecutor\naccepts such determination or fails to request a review thereof by the\ncourt of appeals, the court of appeals shall thereupon transmit the\ncommission's findings to the governor who will independently determine\nwhether the prosecutor should be removed or retired.\n 8. If the prosecutor requests a review of the determination of the\ncommission, in its review of a determination of the commission pursuant\nto the second undesignated paragraph of subdivision b of section three\nof article six of the state constitution, the court of appeals shall\nreview the commission's findings of fact and conclusions of law on the\nrecord of the proceedings upon which the commission's determination was\nbased. After such review, the court may accept or reject the determined\nsanction; impose a different sanction including admonition or censure,\nrecommend removal or retirement for the reasons set forth in subdivision\none of this section; or impose no sanction. However, if the court of\nappeals recommends removal or retirement, it shall, together with the\ncommission, transmit the entire record to the governor who will\nindependently determine whether a prosecutor should be removed or\nretired.\n 9. (a) The court of appeals may suspend a prosecutor from exercising\nthe powers of his or her office while there is pending a determination\nby the commission for his or her removal or retirement, or while he or\nshe is charged in this state with a felony by an indictment or an\ninformation filed pursuant to section six of article one of the\nconstitution. The suspension shall terminate upon conviction of a felony\nresulting in such prosecutor's disbarment pursuant to paragraph a of\nsubdivision four of section ninety of this chapter. If such conviction\nbecomes final, he or she shall be removed from office. The suspension\nshall be terminated upon reversal of the conviction and dismissal of the\naccusatory instrument.\n (b) Upon the recommendation of the commission or on its own motion,\nthe court may suspend a prosecutor from office when he or she is charged\nwith a crime punishable as a felony under the laws of this state, or any\nother crime which involves moral turpitude. The suspension shall\nterminate upon conviction of a felony resulting in such prosecutor's\ndisbarment pursuant to paragraph a of subdivision four of section ninety\nof this chapter. The suspension shall continue upon conviction of any\nother crime which involves moral turpitude and, if such conviction\nbecomes final, he or she shall be removed from office. The suspension\nshall be terminated upon reversal of the conviction and dismissal of the\naccusatory instrument.\n (c) A prosecutor who is suspended from office by the court shall\nreceive his or her salary during such period of suspension, unless the\ncourt directs otherwise. If the court has so directed and such\nsuspension is thereafter terminated, the court may direct that he or she\nshall be paid his or her salary for such period of suspension.\n (d) Nothing in this subdivision shall prevent the commission from\ndetermining that a prosecutor be admonished or censured or prevent the\ncommission from recommending removal or retirement pursuant to\nsubdivision seven of this section.\n 10. 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 through nine of this section, within the powers of:\n(a) a person having administrative jurisdiction over the prosecutor\ninvolved in the complaint; or (b) an appellate division of the supreme\ncourt; or (c) a presiding justice of an appellate division of the\nsupreme court; or (d) the chief judge of the court of appeals; or (e)\nthe governor pursuant to subdivision (b) of section thirteen of article\nthirteen of the constitution; or (f) an applicable district attorney's\noffice or other prosecuting agency, the commission shall refer such\ncomplaint or the appropriate allegations thereof and any evidence or\nmaterial related thereto to such person, agency or court for such action\nas may be deemed proper or necessary.\n 11. The commission shall notify the complainant of its disposition of\nthe complaint.\n 12. In the event of removal from office of any prosecutor, pursuant to\nsubdivision seven or eight or paragraph (a) or (b) of subdivision nine\nof this section, a vacancy shall exist pursuant to article three of the\npublic officers law.\n * NB Effective January 1, 2019\n
§ 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
