NY could have first-ever commission to review prosecutorial abuses

ALBANY — They bent forward in their seats, hands on the rail of the state Assembly balcony as they watched the roll call vote of state lawmakers below.

A decade of activism was on the line.

The dozen or so observers gathered on that balcony had bonded over one thing: Wrongful prosecution.

When the last vote was cast and the tally announced, there were tears and hugs. There were lots of selfies taken with the voting scoreboard: By 86-35, the Assembly had given final legislative passage to a bill that might make New York the first state to create a commission to review allegations of prosecutors abusing their power.

The bill now goes to Gov. Andrew M. Cuomo, who must sign or veto it by year’s end. His office said it will review the legislation when it receives it. District attorneys across the state, however, have promised a vigorous effort to persuade Cuomo to veto the legislation, calling it unconstitutional.

Though that hurdle looms, activists said they were overwhelmed their fight succeeded in the legislature.

“I just unraveled. It was so moving,” said Bill Bastuk, a suburban Rochester resident who was arrested for rape in 2008 and acquitted a year later. Listening to the legislators’ debate and waiting for the tally gave him flashbacks to standing in a courtroom when the jury filed back in.

“It was the same as when the jury foreman stood up and ‘Not guilty. Not guilty. Not guilty,” Bastuk said. “It was the same sense of relief.”

“We were all clapping. We held hands. The waterworks started for some of us,” Jeffrey Deskovic, a Westchester County man who was exonerated of murder and rape charges in 2006 after serving 16 years in prison, told WPIX-TV afterward.

The activists credited an “atmosphere of justice,” boosted by DNA technology and a slew of wrongful conviction stories — including some on Long Island — for spurring legislators to approve the long-stalled bill.

Among the activists who traveled to Albany this year was Shawn Lawrence, the former North Amityville resident who in 2017 had a murder conviction and 75-year prison sentence vacated because of prosecutor conduct a judge called “absolutely stunning” — including the withholding of 45 pieces of evidence from Lawrence’s defense team.

His attorney didn’t immediately return a call to comment about the legislation.

Lawrence was one of five defendants whose cases were dismissed in 2017 because of alleged misconduct by a Suffolk County assistant prosecutor.

“People are picking up the newspaper literally every other week and reading about wrongful conviction,” Bastuk said.

Assemb. Michael Montesano (R-Glen Head) called the legislation “long overdue” and “necessary.”

Opponents said it could spark of flood of meritless complaints and tie up every prosecution.

“Everyone says, ‘I was wrongfully convicted.’ Everyone says, ‘My lawyer was inadequate’ ,” Sen. Todd Kaminsky (D-Long Beach), a former federal prosecutor, said when the state Senate voted on the bill.

The statewide District Attorneys Association wants Cuomo to veto the bill. It questions the constitutionality of the legislature being able to create such an oversight panel — noting the state Commission Judicial Conduct had to be created through a constitutional amendment.

It also says there is a grievance committee process already for investigating prosecutors.

“We’re not against improving oversight. We’re against interference. There’s a difference,” Albany County District Attorney David Soares told The Capitol Pressroom, a public radio program, on Friday.

“We believe it will not be signed,” he continued. “But if it is, it will be challenged on constitutional grounds.”

Critics contend the grievance panel rarely takes action against prosecutors. Sen. John DeFrancisco (R-Syracuse), one of the primary sponsors of the bill, said the district attorneys promised, for several years, to get him statistics about the grievance panel. But he never received anything.

Said the Republican: “When a bad prosecutor does something that results in somebody losing their liberty, there has got to be a remedy.”