S T A T E O F N E W Y O R K
________________________________________________________________________
4520
2011-2012 Regular Sessions
I N S E N A T E
April 8, 2011
___________
Introduced by Sens. VALESKY, CARLUCCI, KLEIN, SAVINO -- read twice and
ordered printed, and when printed to be committed to the Committee on
Finance
AN ACT to amend the executive law, in relation to the investigation of
public corruption by the attorney-general
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 5-A to
read as follows:
ARTICLE 5-A
INVESTIGATION OF PUBLIC CORRUPTION BY ATTORNEY-GENERAL
SECTION 80. DEFINITIONS.
81. INVESTIGATION BY ATTORNEY-GENERAL.
82. ACTION BY ATTORNEY-GENERAL.
83. EXAMINATION OF WITNESSES AND PRELIMINARY INJUNCTION.
84. PROCEDURE ON HEARING.
85. APPLICATION OF PROVISIONS OF CIVIL PRACTICE LAW AND RULES.
86. CRIMINAL PROSECUTION.
87. IMMUNITY.
88. APPOINTMENT OF DEPUTIES.
S 80. DEFINITIONS. FOR THE PURPOSES OF THIS SECTION, THE FOLLOWING
TERMS SHALL HAVE THE FOLLOWING MEANINGS:
1. "PUBLIC OFFICIAL" SHALL HAVE THE SAME MEANING AS SET FORTH IN
SUBDIVISION (L) OF SECTION ONE-C OF THE LEGISLATIVE LAW; AND
2. "PUBLIC CORRUPTION" SHALL MEAN ANY ACT OF CORRUPTION, FRAUD OR
CRIMINAL ACTIVITY, OR ANY ACT CONSTITUTING A CONFLICT OF INTEREST MADE
BY A PUBLIC OFFICER.
S 81. INVESTIGATION BY ATTORNEY-GENERAL. 1. WHENEVER IT SHALL APPEAR
TO THE ATTORNEY-GENERAL, EITHER UPON COMPLAINT OR OTHERWISE, THAT A
PUBLIC OFFICIAL MAY BE ENGAGED IN CONDUCT CONSTITUTING PUBLIC CORRUPTION
OR HE OR SHE BELIEVES IT TO BE IN THE PUBLIC INTEREST THAT AN INVESTI-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10783-01-1
S. 4520 2
GATION BE MADE, THE ATTORNEY-GENERAL MAY IN HIS OR HER DISCRETION EITHER
REQUIRE OR PERMIT SUCH PUBLIC OFFICIAL TO FILE WITH HIM A STATEMENT IN
WRITING UNDER OATH OR OTHERWISE AS TO ALL THE FACTS AND CIRCUMSTANCES
CONCERNING THE SUBJECT MATTER WHICH HE OR SHE BELIEVES IT IS TO THE
PUBLIC INTEREST TO INVESTIGATE, AND FOR THAT PURPOSE MAY PRESCRIBE FORMS
UPON WHICH SUCH STATEMENTS SHALL BE MADE. THE ATTORNEY-GENERAL MAY ALSO
REQUIRE SUCH OTHER DATA AND INFORMATION AS HE OR SHE MAY DEEM RELEVANT
AND MAY MAKE SUCH SPECIAL AND INDEPENDENT INVESTIGATIONS AS HE OR SHE
MAY DEEM NECESSARY IN CONNECTION WITH THE MATTER.
2. THE ATTORNEY-GENERAL, HIS OR HER DEPUTY OR OTHER OFFICER DESIGNATED
BY HIM OR HER IS EMPOWERED TO SUBPOENA WITNESSES, COMPEL THEIR ATTEND-
ANCE, EXAMINE THEM UNDER OATH BEFORE HIM OR HER OR A MAGISTRATE, A COURT
OF RECORD OR A JUDGE OR JUSTICE THEREOF AND REQUIRE THE PRODUCTION OF
ANY BOOKS OR PAPERS WHICH HE OR SHE DEEMS RELEVANT OR MATERIAL TO THE
INQUIRY. SUCH POWER OF SUBPOENA AND EXAMINATION SHALL NOT ABATE OR
TERMINATE BY REASON OF ANY ACTION OR PROCEEDING BROUGHT BY THE ATTOR-
NEY-GENERAL UNDER THIS ARTICLE.
3. NO PERSON SHALL BE EXCUSED FROM ATTENDING SUCH INQUIRY IN PURSUANCE
TO THE MANDATES OF A SUBPOENA, OR FROM PRODUCING A PAPER OR BOOK, OR
FROM BEING EXAMINED OR REQUIRED TO ANSWER A QUESTION ON THE GROUND OF
FAILURE OF TENDER OR PAYMENT OF A WITNESS FEE AND/OR MILEAGE, UNLESS AT
THE TIME OF SUCH APPEARANCE OR PRODUCTION, AS THE CASE MAY BE, SUCH
WITNESS MAKES DEMAND FOR SUCH PAYMENT AS A CONDITION PRECEDENT TO THE
OFFERING OF TESTIMONY OR PRODUCTION REQUIRED BY THE SUBPOENA AND UNLESS
SUCH PAYMENT IS NOT THEREUPON MADE. THE PROVISIONS FOR PAYMENT OF
WITNESS FEE AND/OR MILEAGE DO NOT APPLY TO ANY PERSON IN THE EMPLOY OF
ANY PUBLIC OFFICIAL WHOSE CONDUCT OR PRACTICES IS BEING INVESTIGATED.
4. IF A PERSON SUBPOENAED TO ATTEND SUCH INQUIRY FAILS TO OBEY THE
COMMAND OF A SUBPOENA WITHOUT REASONABLE CAUSE, OR IF A PERSON IN
ATTENDANCE UPON SUCH INQUIRY SHALL WITHOUT REASONABLE CAUSE REFUSE TO BE
SWORN OR TO BE EXAMINED OR TO ANSWER A QUESTION OR TO PRODUCE A BOOK OR
PAPER WHEN ORDERED SO TO DO BY THE OFFICER CONDUCTING SUCH INQUIRY, OR
IF A PERSON, PARTNERSHIP, CORPORATION, COMPANY, TRUST OR ASSOCIATION
FAILS TO PERFORM ANY ACT REQUIRED HEREUNDER TO BE PERFORMED, HE OR SHE
SHALL BE GUILTY OF A MISDEMEANOR.
5. IT SHALL BE THE DUTY OF ALL PUBLIC OFFICERS, THEIR DEPUTIES,
ASSISTANTS, SUBORDINATES, CLERKS OR EMPLOYEES AND ALL OTHER PERSONS TO
RENDER AND FURNISH TO THE ATTORNEY-GENERAL, HIS OR HER DEPUTY OR OTHER
DESIGNATED OFFICER WHEN REQUESTED ALL INFORMATION AND ASSISTANCE IN
THEIR POSSESSION OR WITHIN THEIR POWER. ANY OFFICER PARTICIPATING IN
SUCH INQUIRY AND ANY PERSON EXAMINED AS A WITNESS UPON SUCH INQUIRY WHO
SHALL DISCLOSE TO ANY PERSON OTHER THAN THE ATTORNEY-GENERAL THE NAME OF
ANY WITNESS EXAMINED OR ANY OTHER INFORMATION OBTAINED UPON SUCH INQUIRY
EXCEPT AS DIRECTED BY THE ATTORNEY-GENERAL SHALL BE GUILTY OF A MISDE-
MEANOR.
S 82. ACTION BY ATTORNEY-GENERAL. 1. WHENEVER THE ATTORNEY-GENERAL
SHALL BELIEVE FROM EVIDENCE SATISFACTORY TO HIM OR HER THAT ANY PUBLIC
OFFICIAL HAS ENGAGED IN, IS ENGAGED OR IS ABOUT TO ENGAGE IN ANY OF THE
PRACTICES OR TRANSACTIONS REFERRED TO AS AND DECLARED TO CONSTITUTE
PUBLIC CORRUPTION, HE OR SHE MAY BRING AN ACTION IN THE NAME AND ON
BEHALF OF THE PEOPLE OF THE STATE OF NEW YORK AGAINST SUCH PUBLIC OFFI-
CIAL AND ANY OTHER PERSON OR PERSONS CONCERNED IN OR IN ANY WAY PARTIC-
IPATING IN OR ABOUT TO PARTICIPATE IN SUCH PUBLIC CORRUPTION, TO ENJOIN
SUCH PUBLIC OFFICIAL OR PERSON FROM CONTINUING SUCH PUBLIC CORRUPTION OR
ENGAGING THEREIN OR DOING ANY ACT OR ACTS IN FURTHERANCE THEREOF OR, IF
THE ATTORNEY-GENERAL SHOULD BELIEVE FROM SUCH EVIDENCE THAT SUCH PUBLIC
S. 4520 3
OFFICIAL OR PERSON ACTUALLY HAS OR IS ENGAGED IN ANY SUCH PUBLIC
CORRUPTION, HE OR SHE MAY INCLUDE IN SUCH ACTION AN APPLICATION TO
ENJOIN PERMANENTLY SUCH PUBLIC OFFICIAL OR PERSON WHO MAY HAVE BEEN OR
MAY BE CONCERNED WITH OR IN ANY WAY PARTICIPATING IN SUCH PUBLIC
CORRUPTION, FROM CONTINUING PARTICIPATION IN SUCH ACTIVITIES WHICH
CONSTITUTE SUCH PUBLIC CORRUPTION. IN SUCH ACTION AN ORDER OR A JUDGMENT
MAY BE ENTERED AWARDING THE RELIEF APPLIED FOR OR SO MUCH THEREOF AS THE
COURT MAY DEEM PROPER. UPON A SHOWING BY THE ATTORNEY-GENERAL IN HIS OR
HER APPLICATION FOR A PERMANENT INJUNCTION THAT THE DEFENDANT NAMED IN
THE ACTION HAS REFUSED TO BE SWORN OR TO BE EXAMINED OR TO ANSWER A
MATERIAL QUESTION OR TO PRODUCE A BOOK OR PAPER RELEVANT TO THE INQUIRY
WHEN DULY ORDERED SO TO DO BY THE OFFICER OR JUDGE DULY CONDUCTING AN
INQUIRY INTO THE SUBJECT MATTER FORMING THE BASIS OF THE APPLICATION FOR
SUCH INJUNCTION, SUCH REFUSAL SHALL BE PRIMA FACIE PROOF THAT SUCH
DEFENDANT IS OR HAS BEEN ENGAGED IN PUBLIC CORRUPTION AS SET FORTH IN
SUCH APPLICATION AND A PERMANENT INJUNCTION MAY ISSUE FROM THE SUPREME
COURT WITHOUT ANY FURTHER SHOWING BY THE ATTORNEY-GENERAL. IN SUCH AN
ACTION, THE COURT MAY AWARD TO THE PLAINTIFF A SUM NOT IN EXCESS OF TWO
THOUSAND DOLLARS AS AN ADDITIONAL ALLOWANCE.
2. UPON A SHOWING BY THE ATTORNEY-GENERAL IN AN APPLICATION FOR AN
INJUNCTION THAT ANY PUBLIC OFFICIAL ENGAGED IN PUBLIC CORRUPTION HAS
EVER BEEN CONVICTED BY A COURT OF COMPETENT JURISDICTION IN ANY STATE OR
COUNTRY OF ANY FELONY, OR OF ANY OTHER CRIMINAL OFFENSE BY ANY SUCH
COURT, WHETHER OR NOT CONSTITUTING A FELONY, INVOLVING PUBLIC
CORRUPTION, THE SUPREME COURT AFTER A HEARING MAY ISSUE A PERMANENT
INJUNCTION AWARDING THE RELIEF APPLIED FOR, OR SO MUCH THEREOF AS THE
COURT MAY DEEM PROPER, AGAINST SUCH PUBLIC OFFICIAL SHOWN TO HAVE BEEN
SO CONVICTED.
3. UPON A SHOWING BY THE ATTORNEY-GENERAL THAT PUBLIC CORRUPTION AS
DEFINED BY THIS ARTICLE HAS OCCURRED, HE OR SHE MAY INCLUDE IN AN ACTION
UNDER THIS ARTICLE AN APPLICATION TO DIRECT RESTITUTION OF ANY MONEYS OR
PROPERTY OBTAINED DIRECTLY OR INDIRECTLY BY ANY SUCH PUBLIC CORRUPTION.
S 83. EXAMINATION OF WITNESSES AND PRELIMINARY INJUNCTION. WHENEVER
THE ATTORNEY-GENERAL HAS DETERMINED TO COMMENCE AN ACTION UNDER THIS
ARTICLE, HE OR SHE MAY PRESENT TO ANY JUSTICE OF THE SUPREME COURT,
BEFORE BEGINNING SUCH ACTION, AN APPLICATION IN WRITING FOR AN ORDER
DIRECTING THE PERSON OR PERSONS MENTIONED IN THE APPLICATION TO APPEAR
BEFORE THE JUSTICE OF THE SUPREME COURT OR REFEREE DESIGNATED IN SUCH
ORDER AND ANSWER SUCH QUESTIONS AS MAY BE PUT TO THEM OR TO ANY OF THEM,
OR TO PRODUCE SUCH PAPERS, DOCUMENTS AND BOOKS CONCERNING THE ALLEGED
PUBLIC CORRUPTION TO WHICH THE ACTION WHICH HE OR SHE HAS DETERMINED TO
BRING RELATES, AND IT SHALL BE THE DUTY OF THE JUSTICE OF THE SUPREME
COURT TO WHOM SUCH APPLICATION FOR THE ORDER IS MADE TO GRANT SUCH
APPLICATION. THE APPLICATION FOR SUCH ORDER MADE BY THE ATTORNEY-GENERAL
MAY SIMPLY SHOW UPON HIS OR HER INFORMATION AND BELIEF THAT THE TESTIMO-
NY OF SUCH PERSON OR PERSONS IS MATERIAL AND NECESSARY. THE PROVISIONS
OF THE CIVIL PRACTICE LAW AND RULES, RELATING TO AN APPLICATION FOR AN
ORDER FOR THE EXAMINATION OF WITNESSES BEFORE THE COMMENCEMENT OF AN
ACTION AND THE METHOD OF PROCEEDING ON SUCH EXAMINATION, SHALL NOT APPLY
EXCEPT AS HEREIN PRESCRIBED. THE ORDER SHALL BE GRANTED BY THE JUSTICE
OF THE SUPREME COURT TO WHOM THE APPLICATION HAS BEEN MADE WITH SUCH
PRELIMINARY INJUNCTION OR STAY AS MAY APPEAR TO SUCH JUSTICE TO BE PROP-
ER AND EXPEDIENT AND SHALL SPECIFY THE TIME WHEN AND PLACE WHERE THE
WITNESSES ARE REQUIRED TO APPEAR. THE JUSTICE OR REFEREE MAY ADJOURN
SUCH EXAMINATION FROM TIME TO TIME AND WITNESSES MUST ATTEND ACCORDING-
LY. THE TESTIMONY OF EACH WITNESS MUST BE SUBSCRIBED BY HIM OR HER AND
S. 4520 4
ALL MUST BE FILED IN THE OFFICE OF THE CLERK OF THE COUNTY IN WHICH SUCH
ORDER FOR EXAMINATION IS FILED.
S 84. PROCEDURE ON HEARING. THE ORDER FOR SUCH EXAMINATION MUST BE
SIGNED BY THE JUSTICE MAKING IT AND SERVICE OF A COPY THEREOF WITH AN
ENDORSEMENT BY THE ATTORNEY-GENERAL SIGNED BY THE ATTORNEY-GENERAL OR
HIS OR HER DEPUTY, TO THE EFFECT THAT THE PERSON NAMED THEREIN IS
REQUIRED TO APPEAR AND BE EXAMINED AT THE TIME AND PLACE AND BEFORE THE
JUSTICE OR REFEREE SPECIFIED IN SUCH ENDORSEMENT, SHALL BE SUFFICIENT
NOTICE FOR THE ATTENDANCE OF WITNESSES. SUCH ENDORSEMENT MAY CONTAIN A
CLAUSE REQUIRING SUCH PERSON TO PRODUCE AT SUCH EXAMINATION ALL BOOKS,
PAPERS AND DOCUMENTS IN HIS OR HER POSSESSION OR UNDER HIS OR HER
CONTROL RELATING TO THE SUBJECT OF SUCH EXAMINATION. THE ORDER SHALL BE
SERVED UPON THE PERSON NAMED IN THE ENDORSEMENT BY DELIVERING TO AND
LEAVING WITH HIM OR HER A CERTIFIED COPY THEREOF, ENDORSED AS PROVIDED
IN THIS SECTION, SUBJECT TO THE PAYMENT OF WITNESS FEES AND MILEAGE AS
AND WHEN PROVIDED TO BE PAID BY SUBDIVISION THREE OF SECTION EIGHTY-TWO
OF THIS ARTICLE IN CONNECTION WITH ATTENDANCE PURSUANT TO SUBPOENAS
AUTHORIZED TO BE ISSUED UNDER SUCH ACTION.
S 85. APPLICATION OF PROVISIONS OF CIVIL PRACTICE LAW AND RULES. THE
PROVISIONS OF THE CIVIL PRACTICE LAW AND RULES SHALL APPLY TO ALL
ACTIONS BROUGHT UNDER THIS ARTICLE EXCEPT AS HEREIN OTHERWISE PROVIDED.
S 86. CRIMINAL PROSECUTION. THE ATTORNEY-GENERAL MAY PROSECUTE EVERY
PERSON CHARGED WITH THE COMMISSION OF A CRIMINAL OFFENSE IN VIOLATION OF
THE LAWS OF THIS STATE, APPLICABLE TO OR IN RESPECT OF THE PRACTICES OR
TRANSACTIONS WHICH IN THIS ARTICLE ARE REFERRED TO AS PUBLIC CORRUPTION.
IN ALL SUCH PROCEEDINGS, THE ATTORNEY-GENERAL MAY APPEAR IN PERSON OR BY
HIS OR HER DEPUTY BEFORE ANY COURT OF RECORD OR ANY GRAND JURY AND EXER-
CISE ALL THE POWERS AND PERFORM ALL THE DUTIES IN RESPECT OF SUCH
ACTIONS OR PROCEEDINGS WHICH THE DISTRICT ATTORNEY WOULD OTHERWISE BE
AUTHORIZED OR REQUIRED TO EXERCISE OR PERFORM; OR THE ATTORNEY-GENERAL
MAY IN HIS OR HER DISCRETION TRANSMIT EVIDENCE, PROOF AND INFORMATION AS
TO SUCH OFFENSE TO THE DISTRICT ATTORNEY OF THE COUNTY OR COUNTIES IN
WHICH THE ALLEGED VIOLATION HAS OCCURRED, AND EVERY DISTRICT ATTORNEY TO
WHOM SUCH EVIDENCE, PROOF AND INFORMATION IS SO TRANSMITTED SHALL FORTH-
WITH PROCEED TO PROSECUTE ANY PUBLIC OFFICIAL CHARGED WITH SUCH
VIOLATION. IN ANY SUCH PROCEEDING, WHEREIN THE ATTORNEY-GENERAL HAS
APPEARED EITHER IN PERSON OR BY DEPUTY, THE DISTRICT ATTORNEY SHALL ONLY
EXERCISE SUCH POWERS AND PERFORM SUCH DUTIES AS ARE REQUIRED OF HIM OR
HER BY THE ATTORNEY-GENERAL OR THE DEPUTY ATTORNEY-GENERAL SO APPEARING.
S 87. IMMUNITY. UPON ANY INVESTIGATION BEFORE THE ATTORNEY-GENERAL OR
HIS OR HER DEPUTY OR OTHER OFFICER DESIGNATED BY HIM OR HER, OR IN ANY
CRIMINAL PROCEEDING BEFORE ANY COURT OR GRAND JURY, PURSUANT TO OR FOR A
VIOLATION OF ANY OF THE PROVISIONS OF THIS ARTICLE, THE ATTORNEY-GENER-
AL, HIS OR HER DEPUTY OR OTHER OFFICER DESIGNATED BY HIM OR HER, OR THE
COURT OR GRAND JURY, MAY CONFER IMMUNITY IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 50.20 OR 190.40 OF THE CRIMINAL PROCEDURE LAW.
S 88. APPOINTMENT OF DEPUTIES. FOR THE PURPOSES OF THIS ARTICLE, THE
ATTORNEY-GENERAL MAY IN HIS OR HER DISCRETION, AND WITHOUT CIVIL SERVICE
EXAMINATION, APPOINT AND EMPLOY, AND AT PLEASURE REMOVE, SUCH DEPUTIES,
OFFICERS AND OTHER PERSONS AS HE OR SHE DEEMS NECESSARY, AND DETERMINE
THEIR DUTIES AND FIX THEIR COMPENSATION.
S 2. This act shall take effect immediately.