N.Y. Comp. Codes R. & Regs. tit. 9 § 10400.4

Current through Register Vol. 46, No. 53, December 31, 2024

Section 10400.4 - Formal Complaint Procedures

(a) Applicable Law. If the commission determines that a hearing is warranted it shall direct that a formal written complaint signed and verified by the administrator be filed. Section 499-f, subdivision 4 of the Judiciary Law provides the procedures to be followed for a hearing.

(b) Notice. A formal written complaint signed and verified by the administrator will be drawn and served upon the respondent prosecutor involved, either personally or by certified mail, return receipt requested.

(c) Answer. The respondent prosecutor shall file a written answer to the formal written complaint with the commission within 20 days of such service or seek an extension for good cause within 20 days of service. The answer shall contain a response which corresponds to each allegation and sets forth that the allegation is either denied, admitted, known or believed to be untrue, or is an allegation about which the prosecutor lacks knowledge or information sufficient to form a belief. The respondent prosecutor's answer may also contain defenses, may assert that the alleged conduct in the formal complaint is not improper or unethical, and provide any additional information relevant to the alleged conduct. Failure to answer the formal written complaint or address specific factual allegations shall be deemed an admission of its allegations.

(d) Summary determination. The respondent prosecutor may move before the commission for a summary determination upon all or any part of the issues being adjudicated, if the pleadings, and any supplementary materials, show that there is no genuine issue as to any material fact and that the respondent prosecutor is entitled to such decision as a matter of law. A motion for summary determination may be served in the same manner as a formal written complaint. If a motion for summary determination is filed, the commission shall provide reasonable opportunity for the submission of briefs and oral argument.

(e) Agreed statement of facts. Subject to the approval of the commission, the administrator and the respondent 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 facts.

(f) Subpoenas. The commission or referee designated by the commission is empowered to issue subpoenas for a commission hearing pursuant to a formal written complaint. If the administrator or the respondent prosecutor who is the subject of a formal written complaint wishes to subpoena a witness or books, records, documents, or other evidence, a request must be made to the referee with notice to the opposing side, affording a reasonable opportunity to be heard. The referee shall grant reasonable requests for subpoenas.

(g) Motions.

(1) The commission shall decide the following motions:

i) a motion for summary determination;

ii) a motion to dismiss a formal written complaint or any portion thereof;

iii) a motion to confirm or disaffirm the findings of the referee;

iv) a motion made prior to the appointment of the referee, except that the commission may refer such motion to the referee when such referral is not inconsistent with the other provisions of this section; and

v) a motion to alter an action taken or order issued by the commission.

(2) The referee designated by the commission shall decide all other motions.

(3) In deciding a motion, the commission members shall not have the aid or advice of the administrator or commission staff who has been engaged in any stage of the investigation.

(4) Within 10 days of the parties being notified of the designation of the referee, commission counsel or the respondent prosecutor may file a motion to disqualify a referee based on a conflict of interest or bias. The opposing party must respond to the motion within 10 days of service of the motion. After 10 days of being notified, the parties may seek to file a motion to disqualify a referee for good cause.

(5) The respondent prosecutor may file a motion for reconsideration of a commission determination. The respondent prosecutor must demonstrate that (i) the new evidence could not have been discovered with due diligence at the time of the hearing and (ii) would have resulted in a different outcome. The commission reserves the authority to hold a hearing to evaluate the newly discovered evidence.

(6) Moving parties shall obtain a motion schedule from the clerk of the commission for all motions to be decided by the commission.

(h) Hearing. 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 respondent prosecutor involved shall be notified in writing of the date of the hearing either personally, at least 20 days prior thereto, or by certified mail, return receipt requested, at least 22 days prior thereto. The respondent prosecutor has the right to be present for the hearing. If the respondent prosecutor fails to appear, the hearing shall continue in their absence. Hearings shall be held at a commission office or such other place as the parties and referee may agree or the clerk of the commission shall direct. The commission may require that any hearing be conducted virtually and may issue public protocols for determining when and how such a virtual hearing should be conducted. The referee shall set a hearing date, regulate the course of the hearing, make appropriate rulings, set the time and place for adjourned or continued hearings, and shall have such authority as specified by the commission pursuant to section 499-e, subdivision 2 of the Judiciary Law.

(i) Discovery.

(1) Upon written request of the respondent prosecutor, the administrator shall, at least 10 days prior to the hearing or any adjourned date thereof, make available to the respondent prosecutor without cost electronic copies of all documents which the administrator intends to present at such hearing, a list of the witnesses administrator intends to call to give testimony and any written statements made by witnesses who will be called to give testimony. The administrator shall, in any case, make available to the respondent prosecutor at least 10 days prior to the hearing or any adjourned date thereof any exculpatory evidentiary data and material relevant to the complaint, whether or not written or recorded. Exculpatory evidentiary data and material relevant to the complaint includes impeachment material. 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 respondent prosecutor. If the referee determines that the failure was substantially prejudicial to the respondent prosecutor, the referee may adjourn the hearing and take any other action deemed necessary to cure the substantial prejudice.

(2) Upon the written request of the administrator, the respondent prosecutor shall, at least five days prior to the hearing or any adjourned dated thereof, make available to the administrator without cost electronic copies of all documents that prosecutor intends to present at such hearing, a list of the witnesses the respondent prosecutor intends to call to give testimony and any written statements of witnesses who will be called to give testimony by respondent prosecutor, with the exception of prior statements of the respondent prosecutor.

(3) Either party may seek an adjournment if additional time is needed to review discovery. The request for adjournment must be made seven days prior to the hearing.

(j) Burden of Proof. The administrator or administrator's designee has the burden of proving, by a preponderance of the evidence, the facts justifying a finding of misconduct.

(k) Rules of Evidence. The rules of evidence applicable in New York courts shall be followed.

(l) Complainant. The complainant may be notified of the hearing and unless they are subpoenaed as a witness by the prosecutor, their presence thereat shall be within the discretion of the commission.

(m) Right to Counsel. The respondent 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.

(n) Recording and Transcription. A recording of the proceedings and of the testimony of witnesses at the hearing shall be taken and transcribed. The recording and transcription shall be kept with the records of the commission. An electronic copy of the transcript will be made available, without cost, to the respondent prosecutor.

(o) The hearing shall not be public unless the respondent prosecutor involved shall so demand in writing.

(p) The parties shall be afforded an opportunity to submit post-hearing briefs on issues of fact and law, including proposed findings, within 30 days after their receipt of the transcript of the hearing to the referee. For good cause, the referee may grant a reasonable extension. The referee shall set dates for service and filing of briefs and proposed findings that shall be served electronically.

(q) The referee shall submit a report to the commission with proposed findings of fact and conclusions of law. No recommendation shall be made with respect to a sanction to be imposed by the commission. The referee shall submit such report no later than 30 days after receipt of post-hearing briefs and proposed findings from the parties or no later than 30 days after failure of the respondent prosecutor or the administrator to file such briefing. The clerk of the commission may grant reasonable extensions of time for the referee's report. The parties shall receive an electronic copy of the referee's report.

(r) The commission shall consider the referee's report or agreed statement of facts and shall provide reasonable opportunity for the submission of briefs and oral argument with respect to such report or agreed statement of facts and with respect to possible sanctions. The commission may require that the oral argument be conducted virtually. The administrator and respondent prosecutor shall each serve and file an electronic copy of their brief to the commission via email or by such other means as the commission may direct.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 10400.4

Adopted New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024