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State Passes Watered Down DA Review Panel

The state Assembly has passed new legislation creating a Commission on Prosecutorial Misconduct.

A.1634 passed Monday in the Assembly by a 135-15 vote with both Assemblyman Andrew Goodell, R-Jamestown, and Joe Giglio, R-Gowanda, voting in favor. The legislation was sponsored by Assemblyman Nick Perry, D-Brooklyn. Companion legislation (S.3934) has been introduced in the state Senate and been referred to the Judiciary Committee.

In 2018, Gov. Andrew Cuomo signed legislation creating the 11-member commission of judges, prosecutors and defense attorneys would wield broad powers to initiate its own investigations, issue public reports, and censure or reprimand prosecutors. The commission could also call for the removal of prosecutors for cause. That law was struck down in January 2020 after the District Attorneys Association of New York raised constitutional concerns. As originally conceived, the 11-member commission of That litigation is still pending after a judge ruled the power given to justices of the state’s Appellate Division courts is not permitted under the state’s constitution.

Perry’s latest version of the legislation satisfies the constitutional issues that have been raised in the past, Goodell said in explaining his vote.

“I will be supporting this chapter amendment,” Goodell said on the Assembly floor. “Even though the original had considerable opposition, the chapter amendment addresses those concerns. The original bill created a State Commission on Prosecutorial Misconduct and there’s a lot of concerns on the constitutionality in that original legislation because the governor is the one that is designated with the authority under our constitution to remove elected officials. This bill has been amended to make it clear the State Commission on Prosecutorial Misconduct is only advisory and therefore the amendment meets the constitutional concerns. Since the commission is now advisory, I will be supporting this amendment.”

Most Assembly members who spoke about the bill had concerns about the new version being so weak that it won’t do much to rein in prosecutors who prosecute cases inappropriately. Avoiding the problems that have waylaid the legislation in past years means that all final sanctions and reviews of findings are placed with a prosecutor’s local Appellate Department court.

In essence, not much changes.

“I supported the first bill when it came out because it served a legitimate purpose,” said Assemblyman Michael Montesano, R-Glen Head. “We have very serious cases of prosecutorial misconduct in this state that go unattended. Suffolk County has more than its share. People convicted of serious crimes had to be let go because of prosecutorial misconduct and the amount of lawsuits the state faces on a yearly basis because of convictions of people because prosecutors withheld vital information for discovery. This amendment, as my colleague from Brooklyn just alluded to, severely waters down this bill and turns it into nothing. I cannot support it and I will be voting in the negative.”

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