Section 499-F - Complaint; investigation; hearing and disposition1. 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. Amended by New York Laws 2021, ch. 153,Sec. 4, eff. 6/17/2021.Amended by New York Laws 2019, ch. 23,Sec. 1, eff. 3/27/2019.Added by New York Laws 2018, ch. 202,Sec. 1, eff. 4/1/2019. See New York Laws 2019, ch. 23, Sec. 2.