STATE OF NEW YORK
EXECUTIVE CHAMBER
ALBANY ?2224

 

APPROVAL 1 August 20, 2018
CHAPTER 2101

MEMORANDUM ?led with Senate Bill 2412-D, entitled:

ACT to amend the judiciary law, in relation to establishing the commission
0n prosecutorial conduct?

.13 IS 9. .Y D.

This bill would amend the Judiciary Law to create a State Commission on Prosecutorial
Conduct, empowered to review and investigate alleged prosecutorial misconduct. This ?rst-in-
the?nation Commission would serve to give New Yorkers comfort that there is a system of
checks and balances in the criminal justice system, and to root out any potential abuses of power
to ensure that our justice system is just for all New Yorkers.

The current bill, however, suffers from several ?aws that have been identi?ed by the
State?s judiciary, as well as the State?s Of?ce of the Attorney General, that would cause its
undoing and would undermine the laudable goal sought to be achieved by its passage into law.
First, this bill would run afoul of Article VI of the State?s Constitution by requiring active judges
to serve as Commission members, expanding the jurisdiction of the Court of Appeals (the
?Court?), and requiring the Court to issue advisory opinions. Second, contrary to the separation
of powers doctrine, this bill would create a commission empowered to oVersee and discipline
executive branch members despite its membership composition consisting of a majority 
appointed by the Legislature. Third, the bill would make the Commission readily available to
anyone intent on disrupting a criminal case. This potential for abuse would be ampli?ed by the
fact that this bill would make public all ?les provided by a prosecutor to the Commission, even
while an active investigation is underway; the potential exposure to victims, witness, and a
prosecutor?s case would be immeasurable. This intrusion into active investigations would
undermine, rather than support, our criminal justice system.

Despite these concerns, the importance of the overarching goal of the bill cannot be
overstated and must not be ignored. That is why the Executive and the Legislature have worked
together to reach an agreement to amend this legislation in the upcoming session. The
amendment will address the constitutional concerns by, among other things, removing the review
of ?ndings from the Court of Appeals to the Appellate Division, eliminating the requirement to
appoint active judges from the judiciary, and adopting a balanced composition structure.

Further, the agreed-upon amendment ensures a review of all allegations but protects active,
?pending investigations, which affects witnesses, victims and other participants seeking redress
through the criminal justice system.

At a time when the voices of those alleging misconduct and unchecked power within our
criminal justice system have reached a fever pitch and the need to reassure New Yorkers that
their con?dence in Our justice system is not misplaced, a bill intent on doing just that must be
embraced. At its core, our criminal justice system must fairly and consistently investigate and
prosecute claims, convict the guilty and exonerate the innocent, Without regard to race, ethnicity,
gender, sexual orientation or any other protected classi?cation. When any prosecutor conscioirsly
disregards that fundamental duty, communities suffer and lose faith in the system, and they must
have a forum to be heard and seek justice. The chapter amendment agreed to by the Executive
and the Legislature will create that forum and address these concerns.

On that basis, this bill is approved.