New York Legislature. New York Legislature. Photo Credit: Shutterstock

State lawmakers Tuesday passed an amendment to a law that will create a special commission in the near future outside the state’s current Attorney Grievance Committees to review allegations of misconduct specifically by the state’s prosecutors.

The amendment, which was created to address constitutional concerns in the original statute, is expected to receive the approval of Gov. Andrew Cuomo, whose office negotiated the terms of the changes with the Legislature last year.

The panel, called the Commission on Prosecutorial Conduct, will not be created immediately. The original statute, much of which remains unchanged from the amendment, is currently facing litigation from the District Attorneys Association of the State of New York.

The group claimed in an October lawsuit brought against Cuomo and party leaders in the state Legislature that provisions of the original bill are unconstitutional. Attorneys for both sides agreed to a stipulation in December in which Cuomo and state lawmakers said they would give at least 45 days’ notice to DAASNY before they made any appointments to the commission.

DAASNY will now decide whether to amend its litigation to address the chapter amendment passed Tuesday. The amendment was supposed to assuage concerns of the bill’s legality brought earlier this year by the counsel to former Attorney General Barbara Underwood and several of the state’s prosecutors.

Albany County District Attorney David Soares, president of DAASNY, said the group still views the amended version of the bill as unconstitutional.

“The bill that was passed today was a hastily drafted piece of legislation. Furthermore, the bill is still unconstitutional,” Soares said. “This might have been avoided if the sponsors had simply consulted with [DAASNY.]”

Soares also said Cuomo and state lawmakers violated a part of the stipulation that required them to communicate with DAASNY about the amendment, including the text of the legislation and when they were planning on introducing and passing it. He urged Cuomo to consider rejecting the changed version passed on Tuesday.

“ This bill is screaming for a veto,” Soares said. “We hope Governor Cuomo is listening.”

The stipulation paused the litigation until a chapter amendment was passed. The judge presiding over the lawsuit, Acting Albany County Supreme Court Justice David Weinstein, is expected to set a schedule for the proceedings in the near future.

Assemblyman Nick Perry, D-Brooklyn, sponsored the bill in the Assembly. He said he’s taking the litigation seriously but isn’t concerned about the outcome of the challenge.

“I’m not particularly concerned, but I wouldn’t just be blasé about it,” Perry said. “How judges interpret the law—you can never take it for granted because the law can be read in so many ways depending on the mind that’s processing it.”

The bill is sponsored in the state Senate by Sen. Jamaal Bailey, a Democrat from the Bronx who also chairs the Codes Committee, which typically reviews legislation that will modify the state’s criminal procedure laws. It was formerly sponsored by state Sen. John DeFrancisco, R-Onondaga, before he retired last year and Democrats gained a majority in the Senate.

The amendment approved by lawmakers Tuesday appears to give more power over the commission to Cuomo, a measure designed to avoid some of the constitutional flaws identified by the state attorney general’s office last year. The commission would be overseen by the executive department, rather than existing as a standalone entity, for example.

The commission would still have 11 members, who would be appointed by Cuomo, Chief Judge Janet DiFiore and the leaders of the state Legislature. The previous legislation gave the majority of the appointments to the Legislature, which sparked constitutional concerns over that branch of government having power over state prosecutors, who are considered part of the executive branch.

The new version gives Cuomo four appointments to the commission—more than any other one individual. The four leaders of the state Legislature—one from each party in the majority and minority—are each allowed one appointment. DiFiore would appoint three individuals to the commission.

Appointments made by Cuomo and the Legislature would have to be evenly split between defense attorneys and either active or retired prosecutors. DiFiore would be allowed to appoint two retired judges to the commission and an academic with experience in criminal law.

The commission would be responsible for reviewing complaints of misconduct by the state’s prosecutors. It would be allowed to publicly sanction or recommend the removal of a prosecutor from office. That power is currently available to four Attorney Grievance Committees throughout the states, but advocates say those panels lack transparency and efficiency.

If a prosecutor seeks to have a decision from the commission appealed, they may ask the state’s Appellate Divisions of the State Supreme Court to take a second look. Those courts will have the power to reject, affirm or modify the commission’s decision. They will also be tasked with sending the commission’s decision to remove a prosecutor to Cuomo, who is the only official with power to remove a district attorney from office under the state constitution.

The litigation from DAASNY against the legislation constitutionality is expected to continue regardless of the amendment. The new bill modified some—but far from all—of the constitutional concerns raised by the state Attorney General’s Office and prosecutors last year.

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