Gov. Andrew Cuomo. Photo: Seth Wenig/AP

Gov. Andrew Cuomo has until next Wednesday to decide if he’ll sign an amended version of a bill that would create a special commission to address complaints of misconduct against the state’s prosecutors, who oppose the legislation.

His signature would likely mean that litigation over the constitutionality of the legislation would resume after it was paused late last year pending the approval of the amended bill.

The legislation had to be changed after concerns over the constitutionality of a previous iteration were raised by the state attorney general’s office and the state’s district attorneys last year. The original bill, which passed last June, was signed by Cuomo in August with a promise from lawmakers to amend it this year.

They followed through on that promise in January, but had yet to send the bill to Cuomo for approval. Lawmakers aren’t required to immediately send legislation to the governor’s office.

A lawsuit against the proposed commission was brought in October by the District Attorneys Association of the State of New York, which had long argued that the legislation was unlawful as it was written by state lawmakers. The litigation was against the original version of the bill passed in June, since the Legislature hadn’t passed the amended bill at the time.

Then, in December, attorneys for DAASNY, Cuomo, and the leaders of both chambers of the Legislature agreed in a stipulation to put a hold on the litigation and the commission’s creation until an amended version of the bill was signed into law.

Lawmakers had, at the time, agreed to consult with DAASNY and keep it updated on the progress of when an amended version of the bill was introduced and passed. The Legislature, instead, introduced the bill on a Friday and passed it the following week without informing DAASNY, according to the association.

Albany County District Attorney David Soares, the current president of DAASNY, criticized lawmakers, at the time, for ignoring the stipulation and said the new version of the bill was still unlawful.

“Unfortunately, the Legislature did not follow the spirit of the stipulation that was signed, which would have given DAASNY visibility into the bill before the votes,” Soares said in January. “In the mutual interest of justice they did not consult DAASNY or our attorneys. Our next step is to amend our original lawsuit and seek an injunction, once again preventing this unconstitutional commission from being created.”

DAASNY has not asked the court for an injunction nor has the group filed a new version of its lawsuit aimed at the constitutionality of the new law. The group said on Monday that it would be consulting with its outside counsel on the litigation before making any moves. It is represented pro bono by Jim Walden and Jacob Gardener from Walden, Macht & Haran in Manhattan.

That action likely wouldn’t come until Cuomo has made a decision on the bill, which was formally sent to him by the Legislature on Friday after two months in limbo. It would be unusual for Cuomo to veto the legislation; his office helped negotiate the amended bill last summer before announcing an agreement in August.

The legislation would establish an 11-member commission of defense attorneys, prosecutors, and retired judges to receive and evaluate complaints of misconduct against the state’s district attorneys. The attorney general’s office would be exempt from scrutiny by the panel, which is modeled after the state Commission on Judicial Conduct.

Unlike the latter panel, the Commission on Prosecutorial Conduct wouldn’t be enshrined in the state constitution, which is one of several constitutional concerns the state’s prosecutors had with the legislation.

Some of them were cured in the amended version of the bill. The new legislation, for example, gives Cuomo more appointments to the commission than anyone else. The previous bill gave the Legislature the most appointments, which sparked concerns that lawmakers would be given power over officials in another branch of state government. District attorneys are considered part of the executive branch.

If Cuomo does sign the bill, it will become effective at the beginning of April. It was written to require the commission to be established at the beginning of the first April after it becomes law, so if the Legislature had waited until after the start of next month there would have been a yearlong delay for the panel.

Representatives from Cuomo’s office said they will review the legislation now that it’s been delivered to his desk. He has until March 27 to make a decision on the bill.

“We will review the amended legislation and process it accordingly,” said Jason Conwall, a spokesman for Cuomo.


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