State lawmakers have introduced changes to a law that will establish a special commission to review complaints of misconduct by the state's prosecutors, who sued the state in October over the constitutionality of the panel.

The amendment, which could be passed by the Legislature at any time, would allow the so-called Commission on Prosecutorial Conduct to be formed sometime over the two months following its approval.

The Assembly could pass the amendment as early as Tuesday, according to a source involved with the legislation.

The bill is sponsored by Assemblyman Nick Perry, D-Brooklyn, and State Sen. Jamaal Bailey, D-Bronx. It was previously sponsored by State Sen. John DeFrancisco, R-Syracuse, but he retired last year before the Senate flipped from Republican to Democratic control.

Bailey, who is also the new chairman of the Senate Codes Committee, said he supports the bill as another proposal to reform the state's criminal justice system.

“I am a proponent of fairness in the criminal justice system, whether it be for defendants or prosecutors,” Bailey said. “Our prosecutors do a great job. They uphold justice—it's very important to note that. But in the small instance that they do commit misconduct, there should be an opportunity or some sort of vehicle for them to be disciplined accordingly.”

Bailey said he wasn't sure when the bill would come up for a vote in the Senate. Perry, meanwhile, said he expects it to move in both chambers relatively quickly.

“We're going to be moving it quickly to the floor. It's a priority. I think we have agreement with the other house on that and the governor is going to sign it once we get it to him,” Perry said.

The major changes included in the amendment appear to pertain to the appointment power of each branch of state government to the commission, the power of the judiciary to review the commission's decisions, and the potential impact of the commission's work on the investigations of the state's prosecutors.

The commission would still have 11 members, who would be appointed by Gov. Andrew Cuomo, Chief Judge Janet DiFiore, and the leaders of the state Legislature. The previous legislation gave the majority of the appointments to the Legislature, which sparked constitutional concerns over that branch of government having power over state prosecutors, who are considered part of the executive branch.

The new version gives Cuomo four appointments to the commission—more than any other one individual. The four leaders of the state Legislature—one from each party in the majority and minority—are each allowed one appointment. DiFiore would appoint three individuals to the commission.

The legislation includes strict requirements on who, exactly, is eligible to be appointed to the commission. Two of Cuomo's appointments would have to be public defenders who have practiced in that area of law for at least five years. His other two appointments would have to be either active or retired prosecutors, also with at least five years of that experience.

Two of the appointments by DiFiore would have to be retired judges, one of whom must have experience providing public defense services. The other retired judge must have similar prosecutorial experience. DiFiore's third appointment would have to be either a full-time law professor or dean at an accredited law school who has significant experience in criminal law.

The Legislature's four appointments to the commission would also be required to be evenly balanced between defense attorneys and either active or former prosecutors. Each appointee, like those chosen by Cuomo, would be required to have at least five years of experience in whichever area they practice. Leaders of the majority party in each chamber would have first pick of their appointments to the commission before the minority party.

The commission would be tasked with reviewing complaints of official misconduct by the state's district attorneys, though its powers do not extend to prosecutors with the state attorney general's office. It would be able to subpoena witnesses and require the reproduction of books, records, documents and other evidence.

District attorneys have voiced concerns about the commission possibly interfering with active criminal investigations and prosecutions through those methods. The amendment includes a provision that would allow the commission to only act in a way that would not affect an active investigation or prosecution if requested by a prosecutor.

The commission would not be allowed to exercise its powers until at least a year after an alleged crime under investigation by a prosecutor was committed or until an accusatory instrument, such as an indictment, has been filed in the case. The text of the law also notes that a prosecutor can move to have a subpoena either withdrawn or modified under the state's current civil practice law.

The Appellate Divisions of the State Supreme Court would also be responsible for delivering a copy of the commission's decision to an accused prosecutor. If the prosecutor seeks to have the decision reviewed, then the Appellate Division would also be tasked with either affirming, rejecting or modifying the sanction.

If the commission recommends the removal of a prosecutor, the Appellate Division would be responsible with delivering the panel's recommendation to the governor, who is the only official with the power to remove a district attorney from office. The sames goes if the Appellate Division is asked to review a recommendation for removal and affirms that decision.

Cuomo and lawmakers came to an agreement on changes to the law earlier this year after its constitutionality was called into question by the state's district attorneys and the counsel to former Attorney General Barbara Underwood. Cuomo signed the enacting bill in August with a promise from lawmakers to approve the changes at the next earliest opportunity.

But, until now, the exact changes to the law were unknown. Cuomo broadly outline the so-called chapter amendment at the time, but bill language was not made available.

The District Attorneys Association of the State of New York filed a lawsuit against the commission in October, citing several constitutional concerns of the panel. Some of those concerns—but not all—were addressed in the chapter amendment. Attorneys for lawmakers and DAASNY, in December, agreed to a stipulation to pause the commission for the time being.

The stipulation also requires 45 days' notice to DAASNY before any appointments are made to the commission. DAASNY did not immediately comment on the new amendment.

This is a developing report.

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