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Form a Business

Administrative Prosecution

RCNY tit. 38-A, ch. 1, subch. E
in effect

38-A RCNY § 1-41 Introduction.

§ 1-41 Introduction. This Subchapter E is adopted pursuant to a Memorandum of Understanding (the "MOU") dated April 2, 2012, and made between the Police Commissioner and the Chair, concerning the administrative prosecution by the Board of Cases in which it finds that an allegation falling within its jurisdiction has been substantiated against an officer and recommends that formal Charges and specifications be brought against such officer. The MOU takes effect on the date on which this Subchapter E takes effect and applies to allegations substantiated by the Board and in which the Board has recommended that charges and specifications be preferred on or after such date. This Subchapter E does not create any rights or benefits in any third parties. (Amended City Record 1/2/2018, eff. 2/1/2018)

38-A RCNY § 1-42 Prosecution of Charges.

§ 1-42 Prosecution of Charges. (a) Where the Board finds an allegation falling within its jurisdiction to have been substantiated against an officer and recommends that Charges be brought against such officer, the Board will promptly notify the Police Commissioner of its finding and recommendation. (b) In those limited circumstances where the Police Commissioner determines that the Civilian Complaint Review Board's prosecution of the Charges would be detrimental to the Police Department's disciplinary process, the Police Commissioner shall so notify the Civilian Complaint Review Board. Such instances shall be limited to Cases in which there are parallel or related criminal investigations, or when, in the instance of an officer with no disciplinary history or prior substantiated Civilian Complaint Review Board complaints, based on such officer's record and disciplinary history the interests of justice would not be served. (c) Any request by the Police Commissioner for the Civilian Complaint Review Board to refrain from prosecution of Charges shall be made in writing to the Civilian Complaint Review Board and shall include a detailed explanation for such request and a statement detailing what discipline if any the Police Commissioner would pursue on such officer. (d) The Civilian Complaint Review Board may reject such request to refrain from Prosecution within five business days of receipt of such request. Such rejection shall be made in writing and shall include a statement rebutting the Police Commissioner's explanation for his or her request. (e) The Police Commissioner may deny such rejection within five business days of receipt of such rejection. Such denial shall be made in writing to the Civilian Complaint Review Board and shall include a detailed response to the Civilian Complaint Review Board's rebuttal. Upon receipt of such denial the Board shall refrain from further Prosecution of the Case. (f) In all Cases other than those in which the Board is refraining from prosecuting, the Civilian Complaint Review Board shall promptly draft, and request that the Police Department Advocate serve on behalf of the Board, Charges against the subject officer. (g) If the Civilian Complaint Review Board, acting through the Chair or Executive Director, believes that suspension or modified assignment of a subject officer would be prudent while a Prosecution is pending, the Civilian Complaint Review Board, acting through the Chair or Executive Director, shall make such recommendation to the Police Commissioner, who shall determine whether to suspend or modify the assignment of such officer. (h) After a Case has been referred to the Administrative Prosecution Unit for Prosecution, the Chief Prosecutor or Executive Director may, upon approval by either the Chair or Full Board, dismiss any Charges. When any such Charge is dismissed, the Civilian Complaint Review Board will notify, in writing, all affected civilian and law enforcement parties of the dismissal. (Amended City Record 1/2/2018, eff. 2/1/2018; amended City Record 2/24/2021, eff. 3/26/2021)

38-A RCNY § 1-43 Expedited Cases.

§ 1-43 Expedited Cases. If the Civilian Complaint Review Board becomes aware that a Case requires expedited Prosecution, the Civilian Complaint Review Board shall make every reasonable effort to conclude such prosecution within the required time frame. If the Civilian Complaint Review Board determines that it will not be able to conclude such Prosecution within such time frame the Civilian Complaint Review Board will decline to prosecute such Case and request that the Police Department Advocate undertake such Prosecution. (Amended City Record 1/2/2018, eff. 2/1/2018)

38-A RCNY § 1-44 Other Possible Misconduct.

§ 1-44 Other Possible Misconduct. If during the course of a Prosecution the Civilian Complaint Review Board becomes aware of possible misconduct falling outside its jurisdiction, such as a superior officer's failure to supervise, the Board shall not itself prosecute such possible misconduct but shall instead immediately refer such possible misconduct to the Police Department for investigation and possible prosecution by the Police Department. The Civilian Complaint Review Board will provide to the Police Department such assistance as may be requested, in the investigation or Prosecution by the Police Department of such possible misconduct and shall, if necessary, coordinate its Prosecution with that of the Police Department. Other misconduct will be noted in case dispositions by categories describing the possible misconduct and the evidence of such misconduct. Other possible misconduct will be noted in case dispositions by categories describing the possible misconduct and the evidence of such misconduct. (Amended City Record 1/2/2018, eff. 2/1/2018; amended City Record 2/24/2021, eff. 3/26/202; amended City Record 9/22/2022, eff. 10/22/2022)

38-A RCNY § 1-45 Police Department Procedures and Disciplinary Practices.

§ 1-45 Police Department Procedures and Disciplinary Practices. (a) The Police Commissioner retains in all respects the authority and discretion to make final disciplinary determinations. (b) The Civilian Complaint Review Board will establish and maintain a unit of appropriately qualified and experienced attorneys and support staff of sufficient number to undertake in a timely and effective manner the responsibility of conducting Prosecutions. (c) The Civilian Complaint Review Board's attorneys and support staff appointed pursuant to this section will be trained in all aspects of the Police Department's procedures and policies as they affect the Prosecutions. (d) The Civilian Complaint Review Board's attorneys and support staff appointed pursuant to this section will, to the extent practicable and relevant, familiarize themselves with and apply in relation to Prosecutions, Police Department disciplinary policies and standards. (e) The Police Department will provide all reasonable assistance requested by the Civilian Complaint Review Board in the creation and maintenance of this unit, including training and guidance in both legal and administrative matters. (f) During the course of a Prosecution, the Civilian Complaint Review Board may contact the Police Department Advocate to request the assistance of employees of the Police Department in the evaluation, preparation and prosecution of the Case. In such instances, the Police Department Advocate shall arrange for the Police Department to provide reasonable assistance to the Civilian Complaint Review Board. (g) In any Case substantiated by the Board in which the Police Commissioner intends to impose discipline that is of a lower level than that recommended by the Board or by the Trial Commissioner, the Police Commissioner will notify the Civilian Complaint Review Board, with notice to the subject officer, at least ten business days prior to the imposition of such discipline. Such notification will be in writing and shall include a detailed explanation of the reasons for deviating from the Board's or, as the case may be, the Trial Commissioner's, recommendation, including but not limited to each factor the Police Commissioner considered in making his or her decision. The Civilian Complaint Review Board and the subject officer may respond to such notification within five business days of its receipt, after which the Police Commissioner will make a final disciplinary determination. (Amended City Record 1/2/2018, eff. 2/1/2018; amended City Record 9/22/2022, eff. 10/22/2022)

38-A RCNY § 1-46 Other Matters Relating to Administrative Prosecutions.

§ 1-46 Other Matters Relating to Administrative Prosecutions. (a) The Police Department will upon receipt send to the Civilian Complaint Review Board a copy of each report and recommendation issued by the Trial Commissioner with respect of a Prosecution. The Civilian Complaint Review Board may provide to the Trial Commissioner a letter commenting on such report and recommendation, commonly referred to as a "Fogel" letter. (b) Where a Prosecution ends without the issuance by the Trial Commissioner of a report and recommendation, the Civilian Complaint Review Board will forward to the Police Commissioner a final recommendation of the Civilian Complaint Review Board reflecting the results of its Prosecution of the Case. The Civilian Complaint Review Board will include all relevant forms, memoranda and background information to assist the Police Commissioner in making a final disciplinary determination. (c) The Police Commissioner may accept, reject, or modify the recommendation presented by the Civilian Complaint Review Board, or may ask the Civilian Complaint Review Board for additional investigative or background information in its possession. The Police Commissioner may also request further investigation or development of the record to enable him or her to make a final disciplinary determination. If the Civilian Complaint Review Board's recommendation is rejected or modified, the Civilian Complaint Review Board will be responsible for taking any appropriate follow-up action, such as proceeding with the Prosecution, engaging in additional investigation, or further developing the record. (d) The Civilian Complaint Review Board may conduct plea negotiations with subject officers and their attorneys, to be heard by a Trial Commissioner. The Police Commissioner will be informed of any proposed plea and said plea will be held in abeyance until approved by the Police Commissioner. In all Prosecutions in which the Police Commissioner rejects a negotiated plea, the Civilian Complaint Review Board will be responsible for implementing the Police Commissioner's decision, including further negotiating the Prosecution in a manner consistent with the Police Commissioner's determination or proceeding with the Prosecution. (e) The Civilian Complaint Review Board will provide to the Police Department quarterly status reports on its Prosecutions or as otherwise requested by the Police Department. (f) The Police Department Advocate will ensure that the Civilian Complaint Review Board is notified of the final disciplinary result and specific penalty in each Case prosecuted by the Board within thirty calendar days of the Police Commissioner's final disciplinary determination. (Amended City Record 1/2/2018, eff. 2/1/2018; amended City Record 9/22/2022, eff. 10/22/2022)
Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-78676Fetched: 10/24/2026

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