N.Y. Comp. Codes R. & Regs. tit. 9 § 10400.3

Current through Register Vol. 46, No. 53, December 31, 2024

Section 10400.3 - Investigation Procedures

(a) An investigation shall only be authorized by the commission.

(b) Notice of Investigation. Upon receipt of a complaint or after an initial review and inquiry, the commission may initiate an investigation into the prosecutor's conduct. The prosecutor shall be notified in writing of the commencement of the investigation and provided with a copy of the complaint.

(c) Party Participation. The prosecutor shall have the right to be represented by counsel during any and all stages of the investigation. The prosecutor or their counsel may present evidentiary data and material relevant to the complaint, through submission of such data and material, by making an oral statement, or both.

(d) Evidence Collection. The administrator or a member of the commission may subpoena witnesses, compel their attendance, and require the production of any books, records, documents, or other evidence that may be deemed relevant or material to the investigation and/or the complaint. Either party may request that the commission seek a court order to access materials that are prohibited by statute from disclosure. The commission may authorize any member of its staff to administer oaths or affirmations and examine witnesses under oath. A witness required to appear before the commission shall have the right to be represented by counsel who may be present with the witness and advise the witness, but may not otherwise participate in the proceedings.

(e) Criminal Investigations. The prosecuting agency may inform the commission by affirmation, with specificity and particularity in writing to the administrator, of its position that the commission's investigations will substantially interfere with the agency's own criminal investigation.

(f) Appearance of the Prosecutor. The commission may require the appearance of the prosecutor involved before it, in which event the prosecutor shall be notified in writing of the required appearance, either personally, at least 10 days prior to such appearance, or by certified mail, return receipt requested, at least 14 days prior to such appearance. A copy of the complaint shall be served upon the prosecutor at the time of such notification. A prosecutor's appearance during an investigation shall take place at a commission office, or if the commission so directs, may be conducted virtually; and at least one member of the commission or referee designated by the commission shall be physically or virtually present. Failure to appear may be deemed an admission unless the prosecutor provides good cause for failing to appear. Electronic copies of the transcripts shall be made available to the prosecutor without cost.

(g) Recording and Transcribing. All interviews pursuant to a subpoena shall be recorded and transcribed.

(h) Report. Upon completion of the investigation, the administrator or administrator's designee shall prepare a report detailing its findings, conclusions, and any recommendations for further action.

(i) Disposition. Based on the report, the commission may dismiss the complaint, direct further investigation, request a written response from the prosecutor, direct the filing of a formal written complaint, or take any other action authorized by law.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 10400.3

Adopted New York State Register December 18, 2024/Volume XLVI, Issue 51, eff. 12/18/2024