S T A T E   O F   N E W   Y O R K
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                                   741

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  M. of A. KELLNER, MILLMAN, ROBINSON, WRIGHT, JEFFRIES --
  Multi-Sponsored by -- M. of A. BOYLAND, GALEF,  GIBSON,  GOTTFRIED  --
  read once and referred to the Committee on Governmental Operations

AN  ACT to amend the executive law, in relation to creating the New York
  state civilian complaint review board

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The executive law is amended  by adding a new article 43 to
read as follows:
                               ARTICLE 43
              NEW YORK STATE CIVILIAN COMPLAINT REVIEW BOARD
SECTION 930. NEW YORK STATE CIVILIAN COMPLAINT REVIEW BOARD.
  S  930. NEW YORK STATE CIVILIAN COMPLAINT REVIEW BOARD. 1. LEGISLATIVE
INTENT. IT IS IN THE INTEREST OF THE PEOPLE OF THE STATE OF NEW YORK AND
POLICE DEPARTMENTS AND PEACE OFFICERS  THROUGHOUT  THE  STATE  THAT  THE
INVESTIGATION  OF  COMPLAINTS  CONCERNING MISCONDUCT BY OFFICERS TOWARDS
MEMBERS OF  THE  PUBLIC  BE  COMPLETE,  THOROUGH  AND  IMPARTIAL.  THESE
INQUIRIES MUST BE CONDUCTED FAIRLY AND INDEPENDENTLY, AND IN A MANNER IN
WHICH THE PUBLIC AND THE POLICE HAVE CONFIDENCE. AN INDEPENDENT CIVILIAN
COMPLAINT  REVIEW BOARD IS HEREBY ESTABLISHED AS A BODY COMPRISED SOLELY
OF MEMBERS OF THE PUBLIC WITH THE AUTHORITY TO  INVESTIGATE  ALLEGATIONS
OF MISCONDUCT AS PROVIDED IN THIS SECTION.
  2.  DEFINITIONS. (A) AS USED IN THIS SECTION, THE TERM "OFFICER" SHALL
MEAN "POLICE OFFICERS" AS DEFINED IN PARAGRAPHS (A), (E), (F), (H), (J),
(K), (L), (M), (P), (Q), (S), AND  (V)  OF  SUBDIVISION  THIRTY-FOUR  OF
SECTION  1.20  OF  THE  CRIMINAL  PROCEDURE  LAW AND "PEACE OFFICERS" AS
DEFINED IN SUBDIVISIONS THREE, FOUR, FIVE, SIX, EIGHT, TWELVE, THIRTEEN,
FIFTEEN, SIXTEEN, TWENTY, TWENTY-ONE, TWENTY-TWO, TWENTY-THREE,  TWENTY-
FOUR,  TWENTY-FIVE,  TWENTY-SIX,  TWENTY-SEVEN, TWENTY-NINE, THIRTY-TWO,
THIRTY-THREE, THIRTY-FOUR, THIRTY-FIVE, THIRTY-SIX, THIRTY-EIGHT, FORTY,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD00392-01-1

A. 741                              2

FORTY-FIVE, FORTY-SIX, FORTY-SEVEN,  FIFTY-TWO,  FIFTY-NINE,  SIXTY-ONE,
SIXTY-TWO,  SIXTY-EIGHT,  SEVENTY-FOUR,  SEVENTY-NINE, AND EIGHTY-TWO OF
SECTION 2.10 OF THE CRIMINAL PROCEDURE LAW.
  (B)  AS  USED  IN  THIS  SECTION "BOARD" SHALL MEAN THE NEW YORK STATE
CIVILIAN COMPLAINT REVIEW BOARD.
  (C) AS USED IN THIS SECTION, "INVESTIGATOR" SHALL MEAN AN INVESTIGATOR
AS APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION  THREE  OF
THIS SECTION.
  3.  APPOINTMENTS.  (A) THE BOARD SHALL CONSIST OF NINE MEMBERS; THREE,
INCLUDING THE CHAIR, AS SELECTED BY THE GOVERNOR; AND SIX MEMBERS TO  BE
APPOINTED BY THE GOVERNOR UPON THE RECOMMENDATIONS, RESPECTIVELY, OF THE
ATTORNEY  GENERAL,  THE  COMPTROLLER,  THE  TEMPORARY  PRESIDENT  OF THE
SENATE, THE MINORITY LEADER OF THE SENATE, THE SPEAKER OF THE  ASSEMBLY,
AND  THE MINORITY LEADER OF THE ASSEMBLY. ANY VACANCY IN THE BOARD SHALL
BE FILLED FOR THE UNEXPIRED TERM IN THE  SAME  MANNER  AS  THE  ORIGINAL
APPOINTMENT.
  (B)  NO  MEMBER  OF  THE  BOARD  SHALL HOLD ANY OTHER PUBLIC OFFICE OR
EMPLOYMENT. NO MEMBERS SHALL HAVE EXPERIENCE AS LAW ENFORCEMENT  PROFES-
SIONALS.  FOR THE PURPOSES OF THIS SECTION, EXPERIENCE AS A LAW ENFORCE-
MENT PROFESSIONAL SHALL INCLUDE EXPERIENCE AS A  PEACE  OFFICER,  POLICE
OFFICER, CRIMINAL INVESTIGATOR, SPECIAL AGENT, OR A MANAGERIAL OR SUPER-
VISORY  EMPLOYEE  WHO  EXERCISED  SUBSTANTIAL  POLICY  DISCRETION ON LAW
ENFORCEMENT MATTERS, IN A FEDERAL, STATE, OR LOCAL LAW ENFORCEMENT AGEN-
CY, OTHER THAN EXPERIENCE AS AN ATTORNEY IN A PROSECUTORIAL AGENCY.
  (C) THE MEMBERS OF THE BOARD SHALL BE APPOINTED  FOR  TERMS  OF  THREE
YEARS.
  (D)  EACH  MEMBER  OF THE BOARD SHALL BE ENTITLED TO REIMBURSEMENT FOR
HIS OR HER ACTUAL AND NECESSARY EXPENSES INCURRED IN THE PERFORMANCE  OF
HIS OR HER OFFICIAL DUTIES AND A PER DIEM ALLOWANCE OF ONE HUNDRED FIFTY
DOLLARS  WHEN RENDERING SERVICE AS A MEMBER; PROVIDED THAT THE AGGREGATE
OF SUCH PER DIEM ALLOWANCE TO ANY ONE MEMBER IN ANY ONE FISCAL  YEAR  OF
THE BOARD SHALL NOT EXCEED THE SUM OF FIVE THOUSAND DOLLARS.
  4.  POWERS  AND  DUTIES  OF  THE BOARD. (A) THE BOARD SHALL APPOINT AN
EXECUTIVE DIRECTOR WHO SHALL ACT IN ACCORDANCE WITH THE POLICIES OF  THE
BOARD.
  (B) THE BOARD IS AUTHORIZED, WITHIN APPROPRIATIONS AVAILABLE THEREFOR,
TO  APPOINT  SUCH  EMPLOYEES AS ARE NECESSARY TO EXERCISE ITS POWERS AND
FULFILL ITS DUTIES. THE BOARD SHALL APPOINT INVESTIGATORS TO INVESTIGATE
CIVILIAN COMPLAINTS. SUCH INVESTIGATORS SHALL HAVE INVESTIGATIVE EXPERI-
ENCE AS A CONDITION OF THEIR APPOINTMENT BY THE BOARD.
  (C) THE BOARD SHALL HAVE THE POWER TO ADOPT, AMEND AND  RESCIND  RULES
AND  REGULATIONS  TO  GOVERN  PROCEDURES OF THE BOARD IN ACCORDANCE WITH
THIS SECTION.
  (D) THE BOARD SHALL HAVE THE POWER TO SUBPOENA AND REQUIRE THE ATTEND-
ANCE IN THIS STATE OF WITNESSES AND THE PRODUCTION OF BOOKS  AND  PAPERS
PERTINENT  TO  THE  INVESTIGATION AND INQUIRIES HEREBY AUTHORIZED AND TO
EXAMINE THEM AND SUCH PUBLIC RECORDS AS IT SHALL REQUIRE RELATING TO ANY
SUCH MATTER. A SUBPOENA ISSUED PURSUANT TO THIS ACTION  SHALL  BE  REGU-
LATED BY THE CIVIL PRACTICE LAW AND RULES.
  (E)  THE  BOARD  MAY  ALSO OFFER, BUT MAY NOT REQUIRE, MEDIATION BY AN
EXPERIENCED MEDIATOR BETWEEN A COMPLAINANT AND A SUBJECT OFFICER  AS  AN
ALTERNATIVE  TO INVESTIGATION AND DISCIPLINE. THE BOARD SHALL SET GUIDE-
LINES TO DETERMINE CASES APPROPRIATE FOR MEDIATION.
  5. COMPLAINT REVIEW PROCEDURE. (A) COMPLAINTS MAY BE INITIATED BY  ANY
PERSON  WHETHER  OR  NOT THAT PERSON IS A VICTIM OF, OR A WITNESS TO, AN
INCIDENT ALLEGING THE USE OF EXCESSIVE FORCE OR ABUSE  OF  AUTHORITY.  A

A. 741                              3

COMPLAINT MAY ALSO BE INITIATED BY THE BOARD, UPON A MAJORITY VOTE THER-
EOF,  IF  THE  BOARD DETERMINES THAT THERE IS A CLEAR PUBLIC INTEREST IN
DOING SO.
  (B)  THE  BOARD  MUST TAKE REASONABLE MEASURES TO ENSURE THE CONFIDEN-
TIALITY OF ALL COMPLAINANTS.
  (C) ALL COMPLAINTS, OTHER THAN THOSE IN WHICH BOTH THE COMPLAINANT AND
THE SUBJECT OFFICER AGREE TO MEDIATION, SHALL BE ASSIGNED TO AN INVESTI-
GATOR, WHO SHALL TAKE SUCH STEPS AS ARE  NECESSARY  TO  INVESTIGATE  THE
COMPLAINT, INCLUDING OBTAINING A STATEMENT FROM THE COMPLAINANT, WITNESS
STATEMENTS,  DOCUMENTARY EVIDENCE, AND INTERVIEWS WITH SUBJECT OFFICERS.
WHEN THE INVESTIGATION IS COMPLETE, IT SHALL BE FORWARDED TO THE  BOARD,
OR  A  PANEL  CONSISTING  OF  AT LEAST THREE MEMBERS OF THE BOARD, WHICH
SHALL READ THE CASE, REVIEW ALL OF THE EVIDENCE AND VOTE ON THE DISPOSI-
TION OF EACH ALLEGATION RAISED BY THE COMPLAINT.
  (D) THE BOARD'S VOTE ON EACH ALLEGATION BROUGHT BEFORE IT SHALL RESULT
IN ONE OF THE FOLLOWING DISPOSITIONS:
  (I)  SUBSTANTIATED;  A  FINDING  THAT  THERE  IS  SUFFICIENT  CREDIBLE
EVIDENCE  TO  BELIEVE THAT THE SUBJECT OFFICER COMMITTED THE ACT CHARGED
IN THE ALLEGATION CONSTITUTING MISCONDUCT;
  (II) EXONERATED; A FINDING THAT THE SUBJECT OFFICER WAS FOUND TO  HAVE
COMMITTED THE ACT ALLEGED, BUT THE SUBJECT OFFICER'S ACTIONS WERE DETER-
MINED TO BE LAWFUL AND PROPER;
  (III)  UNFOUNDED; A FINDING THAT THERE IS SUFFICIENT CREDIBLE EVIDENCE
TO BELIEVE THAT THE SUBJECT OFFICER DID NOT COMMIT THE  ALLEGED  ACT  OF
MISCONDUCT;
  (IV)  UNSUBSTANTIATED;  A  FINDING  THAT  THE  WEIGHT OF THE AVAILABLE
EVIDENCE IS INSUFFICIENT TO SUBSTANTIATE, EXONERATE OR UNFOUND THE ALLE-
GATION;
  (V) OFFICER OR OFFICERS UNIDENTIFIED; A FINDING  THAT  THE  BOARD  WAS
UNABLE TO IDENTIFY THE SUBJECT OR SUBJECTS OF THE ALLEGED MISCONDUCT; OR
  (VI) MISCELLANEOUS; A FINDING THAT THE SUBJECT OF THE ALLEGATION IS NO
LONGER AN OFFICER.
  (E)  IF  ANY  OF  THE  ALLEGATIONS  ARE SUBSTANTIATED, THE BOARD SHALL
FORWARD THE CASE TO THE SUBJECT OFFICER'S EMPLOYER, AND MAY RECOMMEND TO
THE EMPLOYER APPROPRIATE DISCIPLINARY ACTION. IF, WITHIN THIRTY DAYS  OF
A  CASE  BEING FORWARDED FOR DISCIPLINE, NO DISCIPLINARY ACTION IS TAKEN
BY AN OFFICER'S EMPLOYER WITH RESPECT TO THE  SUBSTANTIATED  ALLEGATIONS
OF MISCONDUCT, THE BOARD SHALL FORWARD THE CASE TO THE DISTRICT ATTORNEY
FOR THE JURISDICTION IN WHICH THE MISCONDUCT OCCURRED.
  (F)  EXCEPT  IN EXTENUATING CIRCUMSTANCES, ALL INVESTIGATIONS SHALL BE
COMPLETED WITHIN SIX MONTHS OF THE DATE WHEN THE  COMPLAINT  WAS  INITI-
ATED.
  S 2. This act shall take effect immediately.