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NY creates commission to review prosecutorial misconduct allegations

Assemb. Nick Perry (D-Brooklyn) debates new legislation for

Assemb. Nick Perry (D-Brooklyn) debates new legislation for police reform on June 8, 2020, in Albany. Credit: AP/Hans Pennink

ALBANY — This time, New York state lawmakers believe they got it right when trying to create a new commission to investigate allegations of prosecutorial misconduct.

After a previous version was knocked out by the courts, the Senate and Assembly approved a revamped commission bill earlier this year. Gov. Andrew M. Cuomo signed it into law Thursday.

Even though the state District Attorneys Association expressed strong doubts, backers said the revised law will pass legal muster — and will make New York the first state to create a commission to review allegations of prosecutorial misconduct.

"Today, justice in the Empire State scores a landmark victory, as New York becomes the first state in the nation to have a government body that holds prosecutors accountable for their conduct," said Assemb. Nick Perry (D-Brooklyn). "The damage from just one dishonest prosecutor can be devastating. Therefore, the need for all prosecutors to play fair and honest is paramount."

Importantly, legislators, the governor and advocates said this version fixed a key constitutional flaw that doomed the earlier version.

In January 2020, a state Supreme Court judge struck down the previous version, saying New York’s constitution gives power to the Appellate Division, the state’s midlevel trial court, to discipline attorneys and the law violated that provision by switching the power to the commission.

Under the new law, the commission may investigate cases and make recommendations, but an appellate court would determine sanctions. Advocates say the change should withstand another court challenge from local district attorneys.

"The legislators followed the instructions of the court," said Bill Bastuk, a suburban Rochester resident who became a vocal advocate for the commission after a jury acquitted him of various charges in 2009. He’s been campaigning for the law for eight years.

"The governor has said he thinks it will withstand a constitutional challenge," Bastuk said.

Legislators also stressed the major change.

"Now, the commission will serve as a fact-finding entity. It will review complaints of prosecutorial misconduct throughout New York State, and produce a factual record, along with recommendations, that are then transmitted to the relevant Appellate Division attorney grievance committee in charge of overseeing the prosecutor charged with misconduct," said Sen. Jamaal Bailey (D-Bronx). "This new law makes clear that the relevant attorney grievance committee may then accept or reject the recommended sanction."

Cuomo, in a statement issued when signing the bill, said the new law will allow the commission to "effectively oversee and discipline prosecutors to make our court system safer and fairer for all."

The District Attorneys Association of New York State contended the new version would violate constitutional separation of powers protections among the legislative, executive and judicial branches of government. The prosecutors’ group had filed the lawsuit that killed the previous law creating a commission.

"Today we reiterate our position that this legislation will not accomplish its stated purpose," said Sandra Doorley, the Monroe County district attorney and association president.

"Instead it will complicate and slow down the attorney discipline process and could have a chilling impact on investigations and prosecutions," Doorley said in a statement. "Our initial review of the latest edition — crafted to address flaws identified by the reviewing court — still presents clear ‘separation of powers’ problems that diminish its chance of surviving challenge, as well as ‘equal protection’ issues."

Doorley said state courts already have a "grievance committee" to review claims against prosecutors. Creating a new commission will be duplicative and force taxpayers to pay for both.

It will take time and money to get the commission off the ground.

The governor and legislators must appoint the 11 commission members and allocate funds for a staff and operations. Bastuk said advocates have suggested $200,000 to $300,000 would be needed to get the panel up and running. They are hoping lawmakers approve the spending next spring when they adopt New York’s 2022-23 budget. Lacking that, the law will be toothless, they said.

"Without staff," Bastuk said, "the commission is basically a piece of paper."

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