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What happens when a district attorney resigns or is removed?

Suffolk District Attorney Thomas Spota reacts during a

Suffolk District Attorney Thomas Spota reacts during a news conference at his Hauppauge office after Suffolk County Executive Steve Bellone, citing a long onging "culture of corruption," called for Spota to step down on Thursday, May 12, 2016. Credit: James Carbone

In the stunning volley of allegations Thursday between top Suffolk County officials, County Executive Steve Bellone called on Gov. Andrew M. Cuomo to remove District Attorney Thomas Spota from office if the prosecutor did not resign. In Spota's own news conference, he defended himself and questioned Bellone’s motives.

Asked by a reporter if he would resign, Spota, whose term expires Dec. 31, 2017, said, “I can see myself leaving office under my own terms.”

Well, just what does happen if the district attorney resigns or is removed? State laws and court rulings on the question are complicated, but here is a broad outline of what would happen.

What the governor can do

Article IV of the state constitution provides that the governor "shall take care that the laws are faithfully executed."

Cuomo, however, is unlikely to act, and not just because of the competing charges between the two public officials. There is an ongoing full-blown investigation into Suffolk County law enforcement — police, prosecutors, judges — by the office of the U.S. attorney the Eastern District, the same federal prosecutors who won a conviction of former Suffolk County Conservative Party chairman Edward Walsh and obtained a guilty plea from James Burke, former Suffolk chief of police.

What if Spota chooses to resign?

State law says the governor “shall” appoint a replacement.

Timing is key. If Spota were to leave before Aug. 8, Suffolk voters would elect a new district attorney to a full four-year term on Election Day, Nov. 8.

If he were to resign less than 90 days before the upcoming general election on Nov. 8, the selection of a new district attorney for a full four-year term would not occur until the fall of 2017. Whomever the governor would appoint as an interim district attorney would serve until Dec. 31, 2017, possibly giving that choice the aura of an incumbent should he or she then decide to run for a full term.

A district attorney is automatically removed from office if convicted of a felony.

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