§ 701 — Special district attorney

New York § 701

• Jurisdiction: New York
• Law CNT: County
• Art. 18: District Attorney

Text

§ 701. Special district attorney. 1. Whenever the district attorney of\nany county and such assistants as he or she may have shall not be in\nattendance at a term of any court of record, which he or she is by law\nrequired to attend, or are disqualified from acting in a particular case\nto discharge his or her duties at a term of any court, a superior\ncriminal court in the county wherein the action is triable may, by\norder:\n (a) appoint some attorney at law having an office in or residing in\nthe county, or any adjoining county, to act as special district attorney\nduring the absence, inability or disqualification of the district\nattorney and such assistants as he or she may have; or\n (b) appoint a district attorney of any other county within the\njudicial department or of any county adjoining the county wherein the\naction is triable to act as special district attorney, provided such\ndistrict attorney agrees to accept appointment by such criminal court\nduring such absence, inability or disqualification of the district\nattorney and such assistants as he or she may have.\n 2. If, for any reason, the appointment of a special district attorney\ncannot be effectuated pursuant to paragraph (a) or (b) of subdivision\none of this section, the court shall then attempt to effect such\nappointment pursuant to the other such paragraph.\n 3. Where a special district attorney appointed under this section is a\ndistrict attorney, he or she may direct the exercise of such powers and\nthe performance of such duties by any assistant in his or her office in\nany case in which he or she serves as special district attorney to the\nsame extent permitted by law in any case in which he or she serves as\ndistrict attorney.\n 4. No appointment made under this section shall be for a period beyond\nthe adjournment of the term at which made. Where, however, an\nappointment is required under this section for a particular case because\nof the disqualification of the district attorney, the appointment may be\nmade for all purposes, including disposition. The special district\nattorney so appointed shall possess the powers and discharge the duties\nof the district attorney during the period for which he or she shall be\nappointed. The provisions of this section shall also apply to a county\nwholly contained within a city.\n 5. Where a special district attorney is appointed under this section,\nthe board of supervisors of the county wherein such special district\nattorney serves, after having been notified and provided with an\nopportunity to be heard, shall pay the necessary disbursements of, and a\nreasonable compensation for, the services of the person so appointed and\nacting, as certified by the presiding judge or justice. Nothing\ncontained herein shall prevent any county from entering into an\nagreement with any other county for the compensation of a special\ndistrict attorney appointed pursuant to paragraph (b) of subdivision one\nof this section. In no event shall the compensation paid pursuant to\nparagraph (b) of subdivision one of this section exceed the compensation\npaid by the county in which such district attorney, or his or her\nassistants, serves.\n 6. (a) This subdivision shall apply to the attorney general in any\ncircumstance where the attorney general acts in place of a district\nattorney. Nothing in this subdivision shall invalidate a court\nappointment of a district attorney or other attorney made prior to the\neffective date of this subdivision to serve in the place of the attorney\ngeneral on a particular matter under any other subdivision of this\nsection.\n (b) Notwithstanding any other provision of law to the contrary,\nwhenever the attorney general and such assistants as the attorney\ngeneral may have, is disqualified from acting in a particular matter to\ndischarge their duties at a term of any court, a superior criminal court\nin the county wherein the action is triable may upon articulable reasons\nset forth by the attorney general for such appointment, by order:\n (i) appoint some attorney at law having relevant experience and\nexpertise, without regard to judicial department or other geographic\nlimitations within the state, to act as special district attorney during\nthe disqualification of the attorney general and such assistants as they\nmay have; or\n (ii) appoint a district attorney of any county to act as special\ndistrict attorney, provided such district attorney agrees to accept\nappointment by such criminal court during such disqualification of the\nattorney general and such assistants as they may have.\n (c) The special district attorney so appointed shall possess the\npowers and discharge the duties of the attorney general during the\nperiod, or for the duration of the matter, for which they shall be\nappointed.\n (d) Where a special district attorney is appointed under this\nsubdivision, the special district attorney may direct the exercise of\nsuch powers and the performance of such duties by any assistant or other\nstaff in their office to assist such special district attorney to the\nsame extent permitted by law.\n (e) Any special district attorney appointed under this subdivision for\na matter arising out of the attorney general's authority under section\nseventy-b of the executive law shall be responsible for the public\nreport required by subdivision six of such section.\n (f) Where a special district attorney is appointed under this\nsubdivision, the department of budget, after having been notified and\nprovided with an opportunity to be heard, shall pay the necessary\ndisbursements of, and a reasonable compensation for, the services of the\nperson so appointed and acting, as certified by the presiding judge or\njustice.\n