Gov. Andrew Cuomo and top lawmakers in the New York Legislature have agreed to delay the creation of a special commission to investigate complaints of misconduct by the state's prosecutors, according to a stipulation approved by a state judge.

The agreement prohibits Cuomo and lawmakers from making any immediate appointments to the commission when the enacting statute takes effect at the beginning of January, which will effectively delay its formation indefinitely.

It also puts on hold litigation against the legislation brought by the District Attorneys Association of the State of New York, which filed its lawsuit over the constitutionality of the statute in October. The group had moved the court for a preliminary injunction against the commission, but Acting Albany Supreme Court Justice David Weinstein encouraged the parties to enter into a stipulation instead.

Albany County District Attorney David Soares, who is the current president of DAASNY, said in a statement that they are prepared to move forward with the litigation if Cuomo and state lawmakers act in a way they suspect to be unconstitutional.

“In lay terms the legislation is frozen in place and will not take effect January 1 pending action of the Legislature and the Governor,” Soares said. “Should the Legislature and the Governor not act, or again enact an unconstitutional statute the litigation will proceed. We hope that will not be necessary.”

DAASNY is represented pro bono in the litigation by Jim Walden and Jacob Gardener from Walden Macht & Haran in Manhattan.

Their lawsuit will be allowed to resume after state lawmakers reconvene in Albany next year and pass what's called a 'chapter amendment,' which is when the governor signs a bill with a promise from lawmakers to amend it at the next earliest opportunity.

Lawmakers approved the bill in June, but that was quickly followed by concerns over its constitutionality from Leslie Dubeck, counsel to New York Attorney General Barbara Underwood. Cuomo's office had asked the attorney general's office for a review of the legislation. Dubeck wrote in a memo to Cuomo's office that the bill likely would not survive judicial review as written.

Cuomo and state lawmakers then agreed to amend the bill in January to address some, but not all, of those constitutional concerns. Cuomo signed the enacting statute after lawmakers agreed to those changes in August.

The lawsuit names Cuomo, along with Assembly Speaker Carl Heastie, Assembly Republican Leader Brian Kolb, Senate Democratic Leader Andrea Stewart-Cousins, and Senate Republican Leader John Flanagan as defendants.

A spokesman for Cuomo said the stipulation is consistent with the agreement from lawmakers to amend the legislation during the next legislative session. The litigation currently only addresses the bill signed by Cuomo in August without considering the planned amendment.

“This stipulation is consistent with what we've said all along—the current version of this legislation must be amended and should not go into effect before those issues are resolved,” said Tyrone Stevens, spokesman for Cuomo. “The chapter amendment agreed to with the Legislature hasn't even been enacted—what's being challenged is a law that has not yet gone into effect and one that the Governor confirmed requires replacing with the agreed-upon chapter amendment. We're proud to usher this piece of criminal justice reform into law, and we're confident that once amended, this groundbreaking reform will strengthen public trust in our justice system.”

Kolb, who actually voted against the legislation in June, said in a statement that he hopes the stipulation will allow enough time for the constitutional concerns of the law to be addressed by the Legislature.

“Having voted against the original legislation, I understand the position of the District Attorney's Association and the concerns associated with the bill,” Kolb said. “Hopefully, the stipulation agreement provides the time and transparency for this legislation to be properly re-considered.”

Spokespeople for the other legislative leaders named in the lawsuit did not immediately comment on the stipulation. They are represented, separately, by outside counsel. The attorney general's office is not currently representing anyone in the litigation.

DAASNY will be allowed to revive its motion for a preliminary injunction after the Legislature approves the chapter amendment, assuming the group still has concerns over the commission's constitutionality at that point. If granted, the motion could delay the formation of the commission until the litigation is resolved in court.

Soares said DAASNY is prepared to work with state lawmakers to create a different mechanism for addressing instances of prosecutorial misconduct that would sit better with his members and their constitutional concerns, rather than enact the Commission on Prosecutorial Conduct.

“The constitutional infirmities inherent in the legislation that would have established a Commission on Prosecutorial Conduct are incurable,” Soares said. “Should the Legislature and the Governor seek to create a constitutionally appropriate mechanism to improve the oversight of the conduct of prosecutors and all attorneys in our state, [DAASNY] stands ready to help find effective legal solutions.”

The timeline, in this case, is unclear at this point. Lawmakers were expected to pass the amendment sometime in January, but lawmakers have yet to release language on those changes. The legislation had not been introduced in the state's bill filing system as of Monday afternoon.

The stipulation approved by Weinstein includes an interesting provision that mandates state lawmakers to keep DAASNY in the loop about the progress of the amendment and when it's expected to come up for a vote before the Legislature.

“The Defendants who serve as the [Assembly Speaker] and [Senate Majority Leader] shall make reasonable, good-faith efforts to keep [DAASNY] apprised of material, non-confidential developments regarding a chapter amendment contemporaneously with those developments, including by notifying DAASNY if and when a relevant bill has been introduced in the Assembly, in the Senate, put on a noticed committee agenda, reported, amended, passed each house, or sent to the governor,” the stipulation reads.

In the meantime, neither Cuomo nor state lawmakers will be allowed to appoint anyone to the commission without giving DAASNY at least 45 days notice of that appointment. That's to give the group time to notify the court of its next steps in the litigation before such an appointment is announced.

Those appointments are not expected to be made until after the Legislature passes the chapter amendment, which is due by June 30, 2019 at the latest, according to the stipulation. Cuomo has indicated that he will not appoint anyone to the commission until lawmakers approve the changes.

Lawmakers are set to return to Albany for the first day of the legislative session at some point during the first two weeks of January.

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