The sponsor of a bill that would create a commission to investigate prosecutorial misconduct said on Thursday he expects Gov. Andrew Cuomo to approve the legislation before the Monday deadline.
Assemblyman Nick Perry, D-Brooklyn, said that while changes are still being worked out, the bill is expected to receive Cuomo’s approval. That’s despite a memo sent earlier this week to Cuomo’s office from the counsel to Attorney General Barbara Underwood, warning the bill may not survive judicial review.
“I’m very optimistic that the governor will sign the bill,” Perry said. “We have to do a little tweaking here and there, but I expect the governor will sign the bill.”
The bill’s other sponsor, Sen. John DeFrancisco, R-Syracuse, was not available for comment on Thursday. The Wall Street Journal reported Thursday morning that Cuomo was planning to sign the bill. However, that same day, a spokesman for Cuomo said that the bill is still under review, and that they are engaging with stakeholders.
Perry said communications with Cuomo’s office about the bill have suggested its approval. Any changes to the bill would have to come in the form of a chapter amendment, which is when the governor agrees to sign the bill with a three-way agreement from the Legislature to amend it at the next earliest opportunity. Perry said they are willing to make the changes, but it’s unclear what parts of the bill will be modified.
“We are willing to make the appropriate tweaking to the bill or corrections or amendments to make sure that the bill is constitutional,” Perry said.
He was unconcerned about the memo sent earlier this week from general counsel Leslie Dubeck from the state Attorney General’s Office to Cuomo’s counsel Alphonso David. Dubeck pointed to several provisions of the bill that may not hold up in court, including conflicts with separation of powers in the state constitution, the judiciary and the role of a district attorney in New York.
Among her chief concerns was an issue with the balance of power imposed by the bill. The commission would be composed of 11 members, six of which would be chosen by the Legislature. Dubeck wrote that it may be deemed unconstitutional for the Legislature to choose the majority of a commission with authority over a district attorney, which is considered an executive position.
She also warned of the constitutionality of allowing sitting judges to serve on the panel and having the Court of Appeals review its decisions. Both of those provisions could be deemed unconstitutional because they impart executive powers on the state’s judiciary, Dubeck wrote.
She was also concerned about the way a commission could affect the work of district attorneys, even if it does not intend to. Dubeck warned that it could influence prosecutors to prepare cases differently, which may lead to a weaker prosecution.
Perry said he and DeFrancisco were not aware of Dubeck’s concerns prior to the bill’s passing in June. That’s not necessarily a surprise—the memo was in response to a formal request from Cuomo’s office for a legal analysis, which is commonly used to assess the constitutionality of legislation. Bills that have not been approved by the Legislature do not usually receive such treatment.
The memo was followed by a letter to the state’s district attorneys by Albany County District Attorney David Soares, who serves as president of the District Attorneys Association of the State of New York. Soares said in the letter that the DAASNY is preparing a constitutional challenge to the bill. Perry said he wasn’t worried about the litigation.
“That’s a part of the process, you know, and I’m not really worried about it. We are listening to the critiques. We are listening to the concerns expressed by people who will be affected by the bill,” Perry said.
The DAASNY has been a stalwart opponent of the legislation since it was introduced in 2015. The association declined to comment on the bill’s status on Thursday.
The DAASNY has long argued that the bill is unconstitutional and unnecessary, saying lawmakers should improve the current process of disciplining attorneys in New York rather than create a new commission to address prosecutors specifically.
Each Appellate Division already has a grievance committee that reviews complaints against attorneys in New York, including prosecutors, and has the power to censure, suspend or disbar them. Those committees are composed of both attorneys and nonattorneys, and appointed by the court.
Supporters of the bill, meanwhile, claim the grievance committees do not address prosecutorial misconduct in a transparent or effective way. The proposed commission would make its decisions and supporting documents easily available to the public, which the grievance committees do not currently do.
They argue a commission to zone in on prosecutorial misconduct could prevent wrongful convictions and consequently exonerations, of which New York has among the highest number in the country.
Cuomo has not publicly taken a position on the bill. The deadline for him to either sign or veto the legislation is Aug. 20.