NY State Senate Bill 2017-S9168

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Sep 17, 2018	referred to rules

2017-S9168 (ACTIVE) - Details

See Assembly Version of this Bill:: A5617
Current Committee:: Senate Rules
Law Section:: Executive Law
Laws Affected:: Add §70-b, Exec L; amd §190.25, CP L
Versions Introduced in 2019-2020 Legislative Session:: S2574, A1601

2017-S9168 (ACTIVE) - Summary

Establishes the office of special investigation within the department of law to investigate and prosecute any alleged criminal offense or offenses committed by a police officer or peace officer, concerning the death of any person as a result of any encounter with such police officer or peace officer.

2017-S9168 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S9168

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the executive law and the criminal procedure law, in
relation to establishing the office of special investigation

 
PURPOSE OR GENERAL IDEA OF BILL:

The bill is designed to enhance public confidence in the integrity of
investigations and court proceedings in instances involving the death of
a person following an encounter with a police officer or peace officer.
The bill would authorize the attorney general or, in potential conflict
circumstances, an independent counsel to investigate and, where appro-
priate, prosecute such cases.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section one would establish an Office of Special Investigation within
the New York State Department of Law (the formal name of the New York

State office of the Attorney General). The Office of Special Investi-
gation would investigate in instances where an individual dies following
an encounter with a police officer or peace officer. Where criminality
is believed to have been occurred, the Office would be empowered to
prosecute alleged offenses committed by a police officer or peace offi-
cer with respect to such encounter or the related investigations.

When a police or peace officer allegedly involved was employed by the
State of New York, the Attorney General, while empowered to initially
investigate, would promptly apply to the court for appointment of an
independent counsel to investigate and potentially prosecute the matter.

Section two would make information and records concerning certain grand
jury proceedings more readily available to the public. In cases involv-
ing the submission of a potential criminal charge against a police offi-
cer or peace officer, legal instructions would be given by the judge or
justice in charge of the grand jury. After submission of such charge or
charges and final action by the grand jury, these legal instructions
would be available for public release, provided that the names of
witnesses and any information that would identify a witness would be
redacted if the court determined that public release of such information
would endanger any person.

 
JUSTIFICATION:

It is vital that the public have confidence that our criminal justice
system is impartial and fair. This confidence must be borne not just of
perception, but of reality.

This bill would promote public confidence in several ways. First, it
would remove a potential conflict of interest with respect to the inves-
tigation where a person has died following an encounter with a police
officer or peace officer. District attorneys work regularly and closely
with police and peace officers in the investigation of alleged criminal
acts. When an investigation involves the death of a person following an
encounter with a police officer or peace officer, it is reasonable to
consider whether a district attorney can be impartial in investigating

the facts and determining whether grand jury consideration is appropri-
ate.

This bill would establish an Office of Special Investigation within the
N.Y. State Department of Law. The Office would investigate and, where
appropriate, prosecute this limited class of cases in the same manner as
a district attorney. In instances where the police officer or peace
officer was employed by New York State, the Office of.  Special Investi-
gation, while empowered to investigate initially, would promptly seek
court appointment of an independent counsel to investigate and poten-
tially prosecute the matter.

Second, this bill would appropriately balance the secrecy of grand jury
proceedings with the necessity of transparency for the public interest.
In some recent cases involving police encounters and civilian deaths
that did not result in indictment, the present law requiring secrecy has
led to confusion and concern, among some in the public, that appropriate
evidence was not presented and/or necessary legal instructions were not
given. This legislation carefully balances grand jury secrecy with the
public's understandable desire to know more about what led to a "no true
bill" result.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

The bill may result in some increased costs to the state, and concom-
itant savings for counties, as some prosecutions would be brought at
state, rather than county, cost.

 
EFFECTIVE DATE:
The bill takes effect on the thirtieth day after which it has become
law.

2017-S9168 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9168
 
                             I N  S E N A T E
 
                            September 17, 2018
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 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
 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD09913-01-7

 S. 9168                             2
 
   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
 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-

 S. 9168                             3
 
 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
 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,

 S. 9168                             4
 
 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.

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Senate Bill S9168

Sponsored By

Archive: Last Bill Status - In Senate Committee Rules Committee

2017-S9168 (ACTIVE) - Details

2017-S9168 (ACTIVE) - Summary

2017-S9168 (ACTIVE) - Sponsor Memo

2017-S9168 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S9168

Share this bill

Sponsored By

Jamaal T. Bailey

Archive: Last Bill Status - In Senate Committee Rules Committee

2017-S9168 (ACTIVE) - Details

2017-S9168 (ACTIVE) - Summary

2017-S9168 (ACTIVE) - Sponsor Memo

2017-S9168 (ACTIVE) - Bill Text download pdf

Comments