Albany DA David Soares. Photo Credit: Tim Roske

The state's district attorneys may torpedo a proposed commission to investigate prosecutorial misconduct if a bill creating the group is approved by New York Gov. Andrew Cuomo.

In a letter sent to the state's prosecutors Tuesday, Albany County District Attorney David Soares said the District Attorneys Association of the State of New York will be advancing an expedited constitutional challenge to the bill. Soares is president of the DAASNY.

Soares also urged the district attorneys and their assistants to decline any appointment to the commission until the litigation is resolved, which would leave the body without four of its members required by the statute.

“I trust that we are united in the view that if any elected district attorney is asked to serve on this commission that he or she will defer until the constitutionality of the bill is determined,” Soares wrote.

The commission would be composed of 11 members, according to the bill. Three of those members would have to be judges. The other eight members must be equally divided between prosecutors and defense attorneys. Prosecutors have long warned that the commission violates several parts of the state's constitution.

The letter sent to prosecutors on Tuesday warned that serving on the commission before it is deemed lawful may breach the oaths of office they took as elected district attorneys. Soares said a team is already working on litigation to block the legislation.

“I have assembled a small team of prosecutors to begin preparation for litigation,” Soares wrote. “The team had a meeting yesterday to discuss legal steps that we can pursue to begin drafting a motion for declaratory judgment and for injunctive relief.”

Their argument gained steam Monday when the counsel for state Attorney General Barbara Underwood wrote in a letter to Cuomo's office that the commission may not survive judicial review.

General Counsel Leslie Dubeck cautioned Cuomo counsel Alphonso David that the bill could be met with issues surrounding the state's constitutional separation of powers, the functions of the state's district attorneys, and could give the state judiciary more power than granted under state law.

Dubeck wrote the commission could be deemed unconstitutional because the majority of its members are appointed by the Legislature. That would give the Legislature power to discipline someone in an executive office, which contradicts state law.

The bill would require three judges to be appointed to the commission by Chief Judge Janet DiFiore. It would also allow the Court of Appeals to review any decisions made by the commission. Both of those provisions could be deemed unconstitutional because they impart executive powers on the state's judiciary, Dubeck wrote.

Dubeck also wrote that the commission could interfere with the work of the state's district attorneys, even if it doesn't intend to. Prosecutors could modify their actions knowing that the commission could either make their decisions known to the public or impede them with an investigation.

The DAASNY has been among the main opponents of the bill, which was first introduced in 2015. It has claimed the bill is both unnecessary and possibly unconstitutional. It claims a process already exists to discipline attorneys, including prosecutors.

Each Appellate Division has a grievance committee that reviews complaints against attorneys in New York, and has the power to censure, suspend or disbar them. Those committees are composed of both attorneys and nonattorneys, and appointed by the court.

Supporters of the proposed commission have lambasted the state's grievance committees, calling them ineffective and nontransparent. They claim the committees do not adequately address claims of prosecutorial misconduct and fail to make their decisions known to the public. Some of the websites for the grievance committees are difficult to navigate and do not have current information, for example.

The New York State Association of Criminal Defense Lawyers is among the bill's top supporters. They appeared with both of the bill's sponsors in the final days of this year's legislative session to advocate for the commission. The bill was sponsored by Sen. John DeFrancisco, R-Syracuse, and Assemblyman Nick Perry, D-Brooklyn.

The goal of the commission is two-fold, its supporters say. The main goal is to reduce the number of wrongful convictions and exonerations in New York, which has among the highest number of exonerations in the country. Advocates said the commission would give defendants a way to report alleged misconduct either during or after their trial, which could help them avoid a conviction. The grievance committees are not tasked with immediately responding to complaints of prosecutorial misconduct.

They also claim the commission could save the state money by ditching extra court appearances and prison expenses for those wrongfully accused. The commission itself is expected to cost about $5.5 million when it's fully operational in January, according to the bill.

Cuomo has until Aug. 20 to approve or veto the legislation.