S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5617
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 11, 2017
                                ___________
 
 Introduced  by  M. of A. PERRY, MOSLEY, GOTTFRIED, GANTT, COOK, PRETLOW,
   PEOPLES-STOKES, ROSENTHAL, CRESPO,  WEPRIN,  MOYA,  RODRIGUEZ,  QUART,
   KIM, PICHARDO, WALKER, BARRON, SEAWRIGHT, JOYNER, BLAKE -- Multi-Spon-
   sored  by  --  M. of A. CARROLL, DAVILA, ORTIZ, SIMON -- read once and
   referred to the Committee on Codes

 AN ACT to amend the executive law and the  criminal  procedure  law,  in
   relation to establishing the office of special investigation
 
   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  section  70-b
 to read as follows:
   §  70-B.  OFFICE  OF SPECIAL INVESTIGATION.   1. THERE SHALL BE ESTAB-
 LISHED WITHIN THE DEPARTMENT OF LAW AN OFFICE OF  SPECIAL  INVESTIGATION
 WHICH  SHALL INVESTIGATE AND, IF WARRANTED, PROSECUTE ANY ALLEGED CRIMI-
 NAL OFFENSE OR OFFENSES COMMITTED BY A PERSON WHO IS A POLICE OFFICER AS
 DEFINED IN SUBDIVISION THIRTY-FOUR  OF  SECTION  1.20  OF  THE  CRIMINAL
 PROCEDURE LAW, OR A PEACE OFFICER AS DEFINED IN SUBDIVISION THIRTY-THREE
 OF  SECTION 1.20 OF THE CRIMINAL PROCEDURE LAW, CONCERNING THE DEATH, OR
 THE INVESTIGATION OF THE DEATH, OF ANY PERSON WHERE SUCH DEATH  RESULTED
 FROM OR POTENTIALLY RESULTED FROM ANY ENCOUNTER WITH SUCH POLICE OFFICER
 OR  PEACE OFFICER, WHETHER OR NOT SUCH PERSON WAS IN CUSTODY. THE OFFICE
 SHALL HAVE THE POWERS AND DUTIES SPECIFIED IN SUBDIVISIONS TWO AND EIGHT
 OF SECTION SIXTY-THREE OF THIS ARTICLE FOR PURPOSES OF THIS SECTION, AND
 SHALL POSSESS AND EXERCISE ALL THE  PROSECUTORIAL  POWERS  NECESSARY  TO
 INVESTIGATE AND, IF WARRANTED, PROSECUTE SUCH OFFENSES, PROVIDED, HOWEV-
 ER,  THAT  APPROVAL,  DIRECTION  OR  REQUIREMENT  OF THE GOVERNOR AS MAY
 OTHERWISE BE REQUIRED BY SUCH SUBDIVISIONS SHALL NOT  BE  REQUIRED.  THE
 JURISDICTION  OF  THE OFFICE OF SPECIAL INVESTIGATION SHALL DISPLACE AND
 SUPERSEDE IN ALL WAYS THE  AUTHORITY  AND  JURISDICTION  OF  THE  COUNTY
 DISTRICT   ATTORNEY  FOR  THE  INVESTIGATION  AND  PROSECUTION  OF  SUCH
 OFFENSES. IN ANY INVESTIGATION AND  PROSECUTION  CONDUCTED  PURSUANT  TO
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD09913-01-7

 A. 5617                             2
 
 THIS  SECTION, THE DISTRICT ATTORNEY SHALL ONLY EXERCISE SUCH POWERS AND
 PERFORM SUCH DUTIES AS DESIGNATED TO HIM OR HER BY THE OFFICE OF SPECIAL
 INVESTIGATION. THE OFFICE OF SPECIAL INVESTIGATION WITHIN THE DEPARTMENT
 OF  LAW  SHALL BE HEADED BY THE DEPUTY ATTORNEY GENERAL APPOINTED BY THE
 ATTORNEY GENERAL PURSUANT TO SUBDIVISION THREE OF THIS SECTION.
   2. (A) IN ANY INVESTIGATION AND  PROSECUTION  UNDERTAKEN  PURSUANT  TO
 THIS  SECTION, THE OFFICE OF SPECIAL INVESTIGATION SHALL CONDUCT A FULL,
 REASONED, AND INDEPENDENT INVESTIGATION INCLUDING, BUT NOT  LIMITED  TO:
 (I)  GATHERING  AND  ANALYZING  EVIDENCE; (II) CONDUCTING WITNESS INTER-
 VIEWS; AND (III) REVIEWING AND COMMISSIONING ANY NECESSARY INVESTIGATIVE
 AND SCIENTIFIC REPORTS, AND REVIEWING AUDIO AND VIDEO RECORDINGS.
   (B) IN ALL MATTERS PURSUANT TO SUBDIVISION ONE OF  THIS  SECTION,  THE
 DEPUTY ATTORNEY GENERAL, APPOINTED PURSUANT TO SUBDIVISION THREE OF THIS
 SECTION, MAY APPEAR IN PERSON OR BY ANY ASSISTANT ATTORNEY GENERAL HE OR
 SHE  MAY DESIGNATE BEFORE ANY COURT OR GRAND JURY IN THE STATE AND EXER-
 CISE ALL OF THE POWERS AND PERFORM ALL OF THE  DUTIES  WITH  RESPECT  TO
 SUCH  ACTIONS OR PROCEEDINGS WHICH THE DISTRICT ATTORNEY WOULD OTHERWISE
 BE AUTHORIZED OR REQUIRED TO EXERCISE OR PERFORM.
   3. NOTWITHSTANDING ANY OTHER PROVISION OF LAW,  THE  ATTORNEY  GENERAL
 SHALL, WITHOUT CIVIL SERVICE EXAMINATION, APPOINT AND EMPLOY, FIX HIS OR
 HER  COMPENSATION,  AND AT HIS OR HER PLEASURE REMOVE, A DEPUTY ATTORNEY
 GENERAL IN CHARGE OF THE OFFICE OF SPECIAL INVESTIGATION.  THE  ATTORNEY
 GENERAL  MAY, AND WITHOUT CIVIL SERVICE EXAMINATION, APPOINT AND EMPLOY,
 AND AT PLEASURE REMOVE, SUCH ASSISTANT DEPUTIES, INVESTIGATORS AND OTHER
 PERSONS AS HE OR SHE DEEMS NECESSARY, DETERMINE  THEIR  DUTIES  AND  FIX
 THEIR COMPENSATION.
   4.  (A) WHERE AN INVESTIGATION OR PROSECUTION OF THE TYPE DESCRIBED IN
 SUBDIVISION ONE OF THIS SECTION INVOLVES ACTS THAT APPEAR TO  HAVE  BEEN
 ENGAGED IN BY A POLICE OFFICER OR PEACE OFFICER EMPLOYED BY THE STATE OF
 NEW  YORK, THE ATTORNEY GENERAL SHALL PROMPTLY APPLY TO A SUPERIOR COURT
 IN THE COUNTY IN WHICH SUCH ACTS ALLEGEDLY OCCURRED FOR THE  APPOINTMENT
 OF  AN INDEPENDENT COUNSEL TO INVESTIGATE AND POTENTIALLY PROSECUTE SUCH
 MATTER. NOTWITHSTANDING THE PROVISIONS OF  ANY  OTHER  LAW,  SUCH  COURT
 SHALL  THEREUPON  APPOINT  A  QUALIFIED AND EXPERIENCED ATTORNEY AT LAW,
 CAPABLE OF INVESTIGATING AND PROSECUTING SUCH MATTER, NOT EMPLOYED AS  A
 DISTRICT  ATTORNEY,  ASSISTANT  DISTRICT  ATTORNEY OR ASSISTANT ATTORNEY
 GENERAL, AND HAVING NO PERSONAL OR PROFESSIONAL CONFLICTS  OF  INTEREST,
 TO  ACT  AS  AN  INDEPENDENT  COUNSEL  WITH RESPECT TO SUCH MATTER, AT A
 REASONABLE AND APPROPRIATE HOURLY RATE TO BE SET BY SUCH COURT.
   (B) THE ATTORNEY GENERAL SHALL PROMPTLY NOTIFY THE STATE  COMPTROLLER,
 THE  COURT  AND  THE  PUBLIC  WHEN  SUCH  APPOINTMENT  HAS BEEN MADE AND
 ACCEPTED BY SUCH ATTORNEY.  REASONABLE FEES FOR ATTORNEYS  AND  INVESTI-
 GATION  AND  LITIGATION  EXPENSES  SHALL  BE  PAID  BY THE STATE TO SUCH
 PRIVATE COUNSEL FROM TIME TO TIME DURING THE PENDENCY  OF  THE  INVESTI-
 GATION AND ANY PROSECUTION AND APPEAL, UPON THE AUDIT AND WARRANT OF THE
 COMPTROLLER.  ANY  DISPUTE  WITH RESPECT TO THE PAYMENT OF SUCH FEES AND
 EXPENSES SHALL BE RESOLVED BY THE COURT UPON  MOTION  OR  BY  WAY  OF  A
 SPECIAL PROCEEDING.
   (C)  IN  ALL  MATTERS PURSUANT TO SUBDIVISION ONE OF THIS SECTION, THE
 INDEPENDENT COUNSEL APPOINTED PURSUANT TO THIS SUBDIVISION SHALL POSSESS
 AND EXERCISE THE POWERS AND DUTIES OF THE  OFFICE  OF  SPECIAL  INVESTI-
 GATION  PURSUANT  TO  SUBDIVISIONS  ONE AND TWO OF THIS SECTION, AND MAY
 APPEAR IN PERSON OR BY ANY ASSISTANT INDEPENDENT COUNSEL HE OR  SHE  MAY
 DESIGNATE  BEFORE  ANY COURT OR GRAND JURY IN THE STATE AND EXERCISE ALL
 OF THE POWERS AND PERFORM ALL OF THE DUTIES WITH RESPECT TO SUCH ACTIONS

 A. 5617                             3
 
 OR PROCEEDINGS WHICH THE DISTRICT ATTORNEY WOULD OTHERWISE BE AUTHORIZED
 OR REQUIRED TO EXERCISE OR PERFORM.
   5. (A) WITH RESPECT TO ANY INVESTIGATION PURSUANT TO THIS SECTION, THE
 OFFICE  OF SPECIAL INVESTIGATION OR THE INDEPENDENT COUNSEL, AS THE CASE
 MAY BE, SHALL, AS A PART OF THE DUTIES UNDER THIS SECTION,  PREPARE  AND
 PUBLICLY  RELEASE  A  REPORT ON ALL CASES WHERE: (I) THE OFFICE OR INDE-
 PENDENT COUNSEL, AS THE CASE MAY BE, DECLINES TO PRESENT EVIDENCE  TO  A
 GRAND  JURY  REGARDING THE DEATH OF A PERSON AS DESCRIBED IN SUBDIVISION
 ONE OF THIS SECTION; OR (II)  THE  GRAND  JURY  DECLINES  TO  RETURN  AN
 INDICTMENT ON ANY FELONY CHARGES.
   (B)  THE REPORT SHALL INCLUDE: (I) WITH RESPECT TO SUBPARAGRAPH (I) OF
 PARAGRAPH (A) OF THIS SUBDIVISION, AN EXPLANATION AS TO WHY SUCH  OFFICE
 OR  INDEPENDENT  COUNSEL  DECLINED  TO PRESENT EVIDENCE TO A GRAND JURY;
 (II) WITH RESPECT TO SUBPARAGRAPH (II) OF PARAGRAPH (A) OF THIS SUBDIVI-
 SION, A REPORT OF THE OUTCOME OF THE GRAND JURY PROCEEDINGS AND, TO  THE
 GREATEST  EXTENT POSSIBLE, AN EXPLANATION OF THAT OUTCOME; AND (III) ANY
 RECOMMENDATIONS FOR SYSTEMIC OR OTHER REFORMS ARISING FROM THE  INVESTI-
 GATION.
   6.  SIX  MONTHS  AFTER  THIS SUBDIVISION TAKES EFFECT, AND ANNUALLY ON
 SUCH DATE THEREAFTER, THE OFFICE OF SPECIAL INVESTIGATION SHALL ISSUE  A
 REPORT,  WHICH  SHALL  BE MADE AVAILABLE TO THE PUBLIC AND POSTED ON THE
 WEBSITE OF THE DEPARTMENT OF LAW, WHICH SHALL PROVIDE INFORMATION ON THE
 MATTERS  INVESTIGATED  BY  SUCH  OFFICE,  AND  BY  INDEPENDENT   COUNSEL
 APPOINTED  PURSUANT  TO  SUBDIVISION  FOUR  OF THIS SECTION, DURING SUCH
 REPORTING PERIOD. THE INFORMATION PRESENTED SHALL INCLUDE,  BUT  NOT  BE
 LIMITED  TO:  THE COUNTY AND GEOGRAPHIC LOCATION OF EACH MATTER INVESTI-
 GATED; A DESCRIPTION OF THE CIRCUMSTANCES OF EACH CASE; RACIAL,  ETHNIC,
 AGE,  GENDER  AND  OTHER  DEMOGRAPHIC INFORMATION CONCERNING THE PERSONS
 INVOLVED OR ALLEGED TO BE INVOLVED;  INFORMATION  CONCERNING  WHETHER  A
 CRIMINAL  CHARGE  OR  CHARGES  WERE FILED AGAINST ANY PERSON INVOLVED OR
 ALLEGED TO BE INVOLVED IN SUCH MATTER; THE NATURE OF SUCH  CHARGES;  AND
 THE STATUS OR, WHERE APPLICABLE, OUTCOME WITH RESPECT TO ALL SUCH CRIMI-
 NAL  CHARGES.  SUCH  REPORT  SHALL  ALSO INCLUDE RECOMMENDATIONS FOR ANY
 SYSTEMIC OR OTHER REFORMS RECOMMENDED  AS  A  RESULT  OF  SUCH  INVESTI-
 GATIONS.
   §  2. Subdivision 6 of section 190.25 of the criminal procedure law is
 amended to read as follows:
   6. (A) The legal advisors of the grand jury  are  the  court  and  the
 district  attorney,  and  the  grand  jury may not seek or receive legal
 advice from any other source.  Where necessary or appropriate, the court
 or the district attorney, or both, must instruct the grand jury concern-
 ing the law with respect to its duties or any matter before it, and such
 instructions must be recorded in the minutes.
   (B) NOTWITHSTANDING PARAGRAPH (A) OF THIS SUBDIVISION,  OR  ANY  OTHER
 LAW TO THE CONTRARY, IN ANY PROCEEDING BEFORE A GRAND JURY THAT INVOLVES
 THE  SUBMISSION  OF  A  CRIMINAL  CHARGE  OR CHARGES AGAINST A PERSON OR
 PERSONS FOR AN ACT OR ACTS THAT OCCURRED AT A TIME WHEN SUCH PERSON  WAS
 A  POLICE  OFFICER  OR  PEACE OFFICER, AND THAT CONCERN THE DEATH OF ANY
 PERSON THAT RESULTED FROM OR POTENTIALLY  RESULTED  FROM  ANY  ENCOUNTER
 WITH SUCH POLICE OFFICER OR PEACE OFFICER, THE COURT, AFTER CONSULTATION
 ON  THE  RECORD WITH THE PROSECUTOR, SHALL INSTRUCT THE GRAND JURY AS TO
 THE CRIMINAL CHARGE OR CHARGES TO BE SUBMITTED AND THE LAW APPLICABLE TO
 SUCH CHARGES AND TO THE MATTERS BEFORE SUCH GRAND JURY.  THEREAFTER, ANY
 QUESTIONS, REQUESTS FOR EXHIBITS, REQUESTS FOR READBACK OF TESTIMONY  OR
 OTHER REQUESTS FROM THE GRAND JURY OR A MEMBER THEREOF SHALL BE PROVIDED

 A. 5617                             4
 
 TO  THE  COURT,  AND  ADDRESSED  BY  THE COURT AFTER CONSULTATION ON THE
 RECORD WITH THE PROSECUTOR.
   (C)  NOTWITHSTANDING  THE  PROVISIONS  OF  SUBDIVISION  FOUR  OF  THIS
 SECTION, OR ANY OTHER LAW TO THE CONTRARY, FOLLOWING FINAL ACTION BY THE
 GRAND JURY ON THE CHARGE OR CHARGES SUBMITTED PURSUANT TO PARAGRAPH  (B)
 OF  THIS  SUBDIVISION,  THE COURT SHALL MAKE SUCH LEGAL INSTRUCTIONS AND
 CHARGES SUBMITTED TO SUCH GRAND JURY AVAILABLE TO THE PUBLIC ON REQUEST,
 PROVIDED THAT THE NAMES OF WITNESSES  AND  ANY  INFORMATION  THAT  WOULD
 IDENTIFY  SUCH  WITNESSES INCLUDED IN SUCH LEGAL INSTRUCTIONS OR CHARGES
 SHALL BE REDACTED WHEN THE COURT DETERMINES, IN A WRITTEN ORDER RELEASED
 TO THE PUBLIC, AND ISSUED AFTER NOTICE TO THE PEOPLE AND  THE  REQUESTER
 AND  AN  OPPORTUNITY  TO  BE  HEARD AND REASONABLE EFFORTS TO NOTIFY AND
 PROVIDE AN OPPORTUNITY TO BE HEARD TO ANY OTHER  APPROPRIATE  PERSON  OR
 AGENCY,  THAT  THERE  IS  A REASONABLE LIKELIHOOD THAT PUBLIC RELEASE OF
 SUCH INFORMATION WOULD ENDANGER ANY INDIVIDUAL.
   (D) NOTHING IN THIS PARAGRAPH OR PARAGRAPHS (B) OR (C) OF THIS  SUBDI-
 VISION SHALL BE INTERPRETED AS LIMITING OR RESTRICTING ANY BROADER RIGHT
 OF  ACCESS  TO  GRAND  JURY MATERIALS UNDER ANY OTHER LAW, COMMON LAW OR
 COURT PRECEDENT.
   § 3. This act shall take effect on the thirtieth day  after  it  shall
 have become a law.