Assessment of Public Comments

The Commission on Prosecutorial Conduct will publish a policy manual to complement the Commission’s responsibilities and procedures as set forth in Judiciary Law § 499-a – f and 9 NYCRR Part 10400. 

Comment 1: A commentor requested more clarity on how the Commission will decide to dismiss a complaint without an investigation. 
Response 1: The comment was reviewed by the commission and no amendment was determined to be necessary. 

Comment 2: A commentor requested that the Commission provide a complainant with information about why a complaint has been dismissed. 
Response 2: The comment was reviewed by the commission and no amendment was determined to be necessary. Additional information will be provided in guidance documents. 

Comment 3: Two commentors requested that the Commission provide standards. 
Response 3: The comment was reviewed by the commission and no amendment was determined to be necessary. 

Comment 4: A commentor requested that the Commission automatically authorize investigations in complaints that involve judicial findings of misconduct.
Response 4: The comment was reviewed by the commission and no amendment was determined to be necessary. 

Comment 5: A commentor requested the Commission include “fitness to perform” and “qualifications” as areas it will investigate. 
Response 5: The comment was reviewed by the commission and no amendment was determined to be necessary. Judiciary Law 499-a authorizes the CPC to examine whether a prosecutor has committed conduct in the course of his or her official duties or under color of state law potentially violative of statutes, the legal rights of private persons, whether statutory, constitutional or otherwise; case law; or court rules, including, but not limited to the New York Rules of Professional Conduct, 22 NYCRR 1200, or any subset thereof or successor thereto, including but not limited to Rule 3.8 (Special Responsibilities of Prosecutors and Other Government Lawyers). Any conduct that falls within this authorization will be examined. 

Comment 6: A commentor requested the Commission to reconsider a prior request to investigate instances where there may be office-wide policies that are inconsistent with the Rules of Professional Responsibility. 
Response 6: The comment was reviewed by the commission and no amendment was determined to be necessary. Judiciary Law 499-a authorizes the CPC to examine whether a prosecutor has committed conduct in the course of his or her official duties or under color of state law potentially violative of statutes, the legal rights of private persons, whether statutory, constitutional or otherwise; case law; or court rules, including, but not limited to the New York Rules of Professional Conduct, 22 NYCRR 1200, or any subset thereof or successor thereto, including but not limited to Rule 3.8 (Special Responsibilities of Prosecutors and Other Government Lawyers). Any conduct that falls within this authorization will be examined. 

Comment 7: A commentor requested the Commission to require complaints include both detailed factual allegations and specificity regarding the provisions of the law that the respondent prosecutor purportedly violated, and for the Administrator’s complaint set forth the rule of law or procedure, or case, or other standard that the respondent prosecutor is alleged to have transgressed. 
Response 7: The comment was reviewed by the commission and no amendment was determined to be necessary. Additional information will be provided in guidance documents. 

Comment 8: A commentor requested another change to the amount of time a respondent prosecutor is given to answer a formal complaint. Specifically, they request that the rules be amended to either lengthen the time to answer a complaint or to provide that the Commission will retrospectively consider a late filed motion to enlarge the time to answer. 
Response 8: The comment was reviewed by the commission and no amendment was determined to be necessary. Additional information will be provided in guidance documents. 

Comment 9: A commentor requested the burden of proof for hearings be clear and convincing evidence instead of preponderance of the evidence. 
Response 9: The comment was reviewed by the commission and no amendment was determined to be necessary. 

Comment 10: A commentor requested that the Commission reconsider its determination regarding verification and that complainants need not have personal knowledge or relevant information about their complaints. 
Response 10: The comment was reviewed by the commission and no amendment was determined to be necessary. Additional information will be provided in guidance documents. Judiciary Law 499-f does not require that complaints be verified; likewise, there is no prohibition on an organization or citizen filing a complaint based on a judicial opinion or incident learned about in the news. 

Comment 11: A commentor requested that a prosecutor be notified of any disposition of a complaint, including dismissal, before or after a hearing is ordered. 
Response 11: The comment was reviewed by the commission and no amendment was determined to be necessary. Additional information will be provided in guidance documents. 

Comment 12: A commentor requested that a respondent prosecutor be permitted to respond to the allegations of a complaint with a statement that essential records are unavailable or with the ability to assert a Fifth Amendment privilege, and for a rule requiring the Commission to draw an inference favorable to the respondent prosecutor when essential records are unavailable. Response 12: The comment was reviewed by the commission and no amendment was determined to be necessary. 

Comment 13: A commentor stated that the rules, as now written, do not account for situations where a prosecution agency may have a legitimate reason to prevent disclosure of information, such as in situations involving ongoing, sensitive investigations. The commentor requested that that a respondent prosecutor be permitted to respond to the allegations of a complaint with a statement that essential records are unavailable or with the ability to assert a Fifth Amendment privilege and argued for a rule requiring the Commission to draw an inference favorable to the respondent prosecutor when essential records are unavailable.
Response 13: The comment was reviewed by the commission and no amendment was determined to be necessary. Pursuant to Judiciary Law 499-d(1), a prosecutor may notify the Commission that its investigation will interfere with an ongoing criminal investigation and the Commission shall only exercise its powers in a way that will not interfere with an agency's active investigation or prosecution. 

Comment 14: A commentor requested that Commission proceedings be deferred until completion of any related criminal investigation, and that all relevant prosecution agencies be notified of any Commission action. 
Response 14: The comment was reviewed by the commission and no amendment was determined to be necessary. Ongoing criminal investigations are addressed in the statute. 

Comment 15: A commentator requested that if a complaint is dismissed, the notification should include whether it was dismissed without an investigation, the number of commission members who made such a determination, their identities, and the names of the commission members who recused themselves. The commentor also requested that the complainant be permitted to file a request for reconsideration by the full commission within 30 days of the notification. 
Response 15: The comment was reviewed by the commission and no amendment was determined to be necessary. Additional information will be provided in guidance documents. 

Comment 16: A commentor requested that the Commission add: “Complaint which lacks merit on its face is a complaint which, even assuming the truth of its allegations, does not state a basis for complaint relating to the ‘conduct or performance of official duties of any prosecutor,’ as Judiciary Law Sec. 499-f requires.” 
Response 16: The comment was reviewed by the commission and no amendment was determined to be necessary. 

Comment 17: A commentor previously requested the rule for ‘initial review and inquiry’ and recommending investigations be amended to: “The commission staff shall engage in an initial review and inquiry of the complaint, and based thereon, provide a recommendation to the commission as to whether the complaint is facially-meritorious.” The commentor also requested that the rule related to the commission’s authorization of a complaint be changed to: “Upon receipt of a recommendation from commission staff as to whether a complaint is facially meritorious, the commission shall (1) authorize an investigation of the complaint; or (2) dismiss the complaint upon determining that it lacks merit on its face.’” In the current public comment period, the commentor asked for additional explanation for why this comment was rejected. 
Response 17: The comment was reviewed by the commission and no amendment was determined to be necessary. The commission will authorize an investigation after an initial review and inquiry. 

Comment 18: Based on a previous comment the Commission revised the rules to add ‘shall’ to 10400.2(c) to make clear that the staff will provide a recommendation, and the Commissioners will decide whether to authorize an investigation. The new language is: “The commission staff may engage in an initial review and inquiry of the complaint and shall provide a recommendation to the commission about the disposition of a complaint.” The commentor replied, “The addition of “shall” does nothing to ensure the Commission’s fidelity or that of staff to the mandate of Judiciary Law §499-f(1).” 
Response 18: The comment was reviewed by the commission and no amendment was determined to be necessary. 

Comment 19: A commentor requested that ‘lacks merit’ be defined and commented that 10400.2(d) uses ‘lacks merit’ instead of ‘lacks merit on its face. 
Response 19: The comment was reviewed by the commission and no amendment was determined to be necessary. Additional information will be provided in guidance documents. Comment 20: A commentor requested the definition of ‘investigation’ be amended to: “Investigation is only initiated at the direction of the commission and shall mean the collection and analysis of relevant evidence – starting with requiring a written response to the complaint from the complained-against prosecutor and furnishing it to the complainant for reply, and thereafter, as needed, testimony under oath or affirmation, and obtaining documents, including by subpoena.” Response 20: The comment was reviewed by the commission and no amendment was determined to be necessary. The rules provide the prosecutor with an opportunity to submit information at the investigation stage. 

Comment 21: A commentor previously requested a rule about how three-member panels will be configured and the Commission responded that additional information will be provided in guidance document. The commentor responded, “These rules are supposed to be the ‘guidance documents’ referred to in the CPC's previous response.” 
Response 21: The comment was reviewed by the commission and no amendment was determined to be necessary. Additional information will be provided in guidance documents. Department of State defines “guidance documents” as “any guideline, memorandum or similar document prepared by an agency that provides general information or guidance to assist regulated parties in complying with any state, rule or other legal requirement, but shall not include documents that concern only the internal management of the agency.” 

Comment 22: Several commentors requested that the Commission define “prosecutor” to include former prosecutors.
Response 22: The comment was reviewed by the commission and no amendment was determined to be necessary.