Assemblyman Nick Perry (Photo: Assembly Office)

The lead sponsor of legislation to create a special commission tasked with reviewing complaints of misconduct against the state's prosecutors called on Gov. Andrew Cuomo and lawmakers Friday to reverse a court-approved stipulation and begin appointments to the panel.

Assemblyman Nick Perry, D-Brooklyn, said during a press conference Friday that Cuomo and leaders in the state Legislature should break an agreement in the litigation that prevents them from appointing members as long as they don't defend the law in court.

“I'm calling on the governor, my colleagues in the Senate, to get back on board,” Perry said. “You are supposed to be a part of defending this law and it's wrong to step aside and allow the District Attorneys Association to run amok with the rights of the people. It's horrifying.”

Cuomo and both party leaders in the State Senate entered into a stipulation earlier this month in which they agreed to forgo defending the statute as long as they were no longer involved in the lawsuit against it. In return, they agreed not to make any appointments to the commission.

That agreement was part of a lawsuit against the Commission on Prosecutorial Conduct from the District Attorneys Association of the State of New York, which has alleged that the statute establishing the panel is unconstitutional. DAASNY declined to comment on Perry's call.

The lone defendant left on the lawsuit is Assembly Speaker Carl Heastie, D-Bronx. Heastie could make an appointment to the commission at any time, but it wouldn't matter. The commission would need a quorum of members to become operational. That likely won't happen until the litigation is resolved.

Perry urged Cuomo and leaders in the Legislature to walk back their agreement not to defend the law, and instead rejoin Heastie's efforts in the lawsuit. He said that, even if the law is ultimately ruled unconstitutional, it's still their duty to go to bat for it.

“The courts will uphold it and even if that didn't happen, our job as elected representatives of the people is to defend the right of the people to a criminal justice system that provides accountability to prosecutors who hold among the most powerful office in the land,” Perry said.

Perry has been a longtime sponsor of the measure, and carried it in the Assembly when it was first approved by the Legislature last year. That's when things got complicated.

Counsel for former New York Attorney General Barbara Underwood wrote to Cuomo's office at the time that the legislation, as it was written, likely wouldn't survive judicial review. Cuomo signed it with a promise from lawmakers to pass an amended version at their next earliest opportunity.

The Legislature then passed a new version of the bill in January. It was intended to cure the constitutional defects identified by the Attorney General's Office, but not all were addressed in the amended version. Cuomo said as much when he signed it in March.

“Previously unidentified infirmities — including constitutional separation of powers concerns with both the executive and judiciary — that leave this law vulnerable to legal attack have come into sharp focus with the passage of time and attention to the ongoing legal challenge,” Cuomo wrote. “Still, the Legislature remains unconvinced that changes recommended by the Executive are necessary and determined it best to deliver the bill unchanged.”

Perry commended Cuomo for approving the bill both times, and urged him to follow through on that signature with a strong defense of the statute. Cuomo is represented in the lawsuit by Jim McGuire and Daniel Sullivan, partners at Holwell Shuster & Goldberg in Manhattan. The Attorney General's Office has declined to defend the law.

“It was a good decision when the governor signed the bill,” Perry said. “I think it's a bad decision to not be a part of defending this law. It's a bad decision to leave the ship when it's sailing into a clear harbor.”

The litigation was dropped against Senate Democratic Leader Andrea Stewart-Cousins and Senate Republican Leader John Flanagan as part of the stipulation agreements. Assembly Republican Leader Brian Kolb, who never supported the legislation, was let out of the commission without a stipulation.

If the measure is upheld in court, the panel would be composed of 11 members appointed by Cuomo, party leaders in the state Legislature, and Chief Judge Janet DiFiore. It would be tasked with reviewing complaints of misconduct against the state's prosecutors and imposing or recommending sanctions on those officials.

DAASNY is represented in the suit by Jim Walden and Jacob Gardener from Walden, Macht & Haran in Manhattan.

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