liibulletin-ny

Haggerty v. Himelein, 89 N.Y.2d 431(Feb. 6, 1997).

CRIMINAL PROSECUTION - EXECUTIVE ORDER - ATTORNEY GENERAL - DISTRICT ATTORNEY

ATTORNEY GENERAL'S OFFICE CAN ASSIST A DISTRICT ATTORNEY WHEN THE DISTRICT ATTORNEY RETAINS ULTIMATE PROSECUTORIAL AUTHORITY.

[SUMMARY] | [ISSUE & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

The district attorney requested the assistance of the State Attorney General in seeking an indictment. An Assistant Attorney General, acting in the capacity of district attorney, received a forty-two count indictment from the Grand Jury. Petitioners moved to dismiss and argued that assistance from the Attorney General's Office required an executive order. The Appellate Division agreed with Petitioners and dismissed the indictment. The Court of Appeals reversed and dismissed the petition.

ISSUE & DISPOSITION

Issue

Whether the Attorney General's Office can assist a district attorney in a criminal case without an executive order.

Disposition

Yes. The Attorney General's Office can assist a district attorney in a criminal case without an executive order when the district attorney retains ultimate prosecutorial power.

AUTHORITIES CITED

Cases Cited by the Court

• Pirro v. Angiolillo, 1996 N.Y. Int. 237 (December 18,1996).
• People v. Carter, 77 N.Y.2d 95 (N.Y. 1991).
• Della Pietra v. New York, 71 N.Y.2d 792 (N.Y. 1988).
• People v. Dunbar, 53 N.Y.2d 868 (N.Y. 1981).
• Schumer v. Holtzman, 60 N.Y.2d 46 (N.Y. 1983).
• Forte v. Supreme Ct., 48 N.Y.2d 179 (N.Y. 1979).
• B.T. Prods. v. Barr, 44 N.Y.2d 226 (N.Y. 1978).
• Dondi v. Jones, 40 N.Y.2d 8 (N.Y. 1976).
• Haggerty v. Himelein, 644 N.Y.S.2d 934 (App. Div. 1996).

Other Sources Cited by the Court

• N.Y. Crim. Pro. Law § 190.75(3) (McKinney 1993 & Supp. 1997).
• N.Y. Exec. Law § 63(2) (McKinney 1993 & Supp. 1997).
• N.Y. Exec. Law § 63-d (McKinney 1993 & Supp. 1997).
• N.Y. Exec. Law §; 70-a[7] (McKinney 1993 & Supp. 1997).
• N.Y. Gen. Bus. Law § 358 (McKinney 1996).
• N.Y. Gen. Bus. Law § 692 (McKinney 1996).
• N.Y. Pub. Off. § 3(1) (McKinney 1988 & Supp. 1997).
• N.Y. Real Prop. Law &167; 442-e[2]." (McKinney 1979 & Supp. 1997).
• N.Y. Real Prop. Law § 446-h[2]." (McKinney 1979 & Supp. 1997).

RELATED SOURCES

• People v. Yonkers Contracting Co., 262 N.Y.S.2d 298 (App. Div. 1966), modified on other grounds, 17 N.Y.2d 322 (N.Y. 1966).
• People v. Leahy, 521 N.Y.S.2d 789 (App. Div. 1987).
• Commonwealth v. Lawson, 658 A.2d 801 (Pa. 1995).
• Ala. Code § 36-15-14 (1975).
• Idaho Code § 67-1401(8) (1989).
• Kan. Stat. Ann. § 75-704 (1989).

COMMENTARY

State of the Law Before Haggerty

Petitioner argues that in the absence of an executive order of superseder from the Governor pursuant to Executive Law § 63(2), the Attorney General's Office is without jurisdictional authority to assume any prosecutorial role in a local criminal matter. N.Y. Exec. Law § 63(2) (McKinney 1993 & Supp. 1997). When the governor grants superseder authority to the Attorney General pursuant to § 63(2), he or she then takes on the prosecutorial function of the district attorney and assumes all the powers and performing all of the duties with respect to such actions which the district attorney would otherwise be authorized to exercise.

Prior to Haggerty, a district attorney could not bring in the Attorney General's Office to assist in a case without an executive order. In Schumer v. Holtzman, the court held that a district attorney's responsibility and accountability for a criminal prosecution are not freely transferable to anyone, including the Attorney General. 60 N.Y.2d 46 (N.Y. 1983). Accordingly, an Attorney General's prosecutorial authority is strictly limited to specific statutory grants of such authority. See Della Pietra v. New York, 71 N.Y.2d 792 (N.Y. 1988).

However, lower courts have generally read the grant of superseder authority broadly. People v. Leahy, 521 N.Y.S.2d 789 (App. Div. 1987) (holding that an executive order should be viewed broadly to accomplish its purpose of authorizing a designated state officer to investigate, charge, and present evidence before the Grand Jury regarding criminal acts arising out of the subject matter of the original executive order); People v. Yonkers Contracting Co., 262 N.Y.S.2d 298 (App. Div. 1965), modified on other grounds, 17 N.Y.2d 322 (N.Y. 1966) (stating that the provisions of § 63(2) should not be read narrowly; the statute should be read to permit the Attorney-General to prosecute any person charged by them "with the commission of an indictable offense" upon the request of the designated State officers).

Effect of Haggerty on Current Law

Haggerty clarifies the extent to which the Attorney General's Office may indict and prosecute criminal matters within the statutory authority and jurisdiction of the district attorney without special direction from the Governor. Executive Law § 63(2) states that upon executive order the Attorney General shall "exercise all of the powers and perform all the duties which the district attorney would otherwise be authorized or required to exercise or perform." The court distinguishes between two instances: 1) when the Attorney General's Office aids the district attorney while ultimate responsibility remains with the district attorney and 2) when the Attorney General assumes the jurisdictional authority of the district attorney. An executive order is required in the latter situation because otherwise the Attorney General would both reach beyond the statutory bounds of his or her prosecutorial authority as well as supersede the district attorney's prosecutorial authority.

The court holds that an executive order is unnecessary upon the facts of this case. "The record in this case does not show any transfer of the fundamental and ultimate responsibility of the Cattaraugus District Attorney to the Attorney General or his Assistant Attorneys General." Haggerty at para. 9. Thus, when there is no evidence of the Attorney General either overreaching his own statutory authority or supplanting the District attorney's statutory authority, Executive Law § 63(2) is not triggered.

Unanswered Questions

The court expressly declines to address the implications of a personal appearance by the Attorney General absent an executive order from the Governor. Haggerty at para. 12. It is unclear whether the Attorney General might validly assist a county district attorney in a prosecution without invoking his authority as Attorney General. The court noted, however, that the simultaneous positions of statewide constitutional officer and subordinate assistant of the local district attorney are "incongruous." Id. Arguably, the Attorney General might substantially assist in a prosecution without requiring an executive order so long as the District Attorney retained the primary authority and discretion.

The court allows the services of the Assistant Attorneys General since no provision of law prohibits such assistance. Haggerty at para. 11. The Court thus avoided delving into the legislative intent and policy justifications behind regulating the interaction of the Attorney General and the district attorneys. It is unclear whether the court would have been more willing to find a conflict if the Attorney General's assistance had occurred at a later stage of the prosecution rather than during the indictment process.

Survey of the Law in Other Jurisdictions

In Pennsylvania, an Assistant Attorney General does not need special permission to assist in a criminal prosecution when the district attorney uses his or her statutory power to appoint assistant district attorneys or special assistant district attorneys to assist in his or her duties. See Commonwealth v. Lawson, 658 A.2d 801, 804 (Pa. 1995) (district attorney maintains prosecutorial power). In Kansas, the Attorney General does not need special permission to provide requested assistance to county attorneys. Kan. Stat. Ann. § 75-704 (1989). This is also the case in Idaho. Idaho Code § 67-1401(8) (1989). The power of the Attorney under these circumstances is even greater in Alabama, where the Attorney General does not need special permission to take control over the prosecution of any case in any Alabama state court. Ala. Code § 36-15-14 (1975).

Prepared By:

• Rene M. Devlin, '97
• Christopher M. Dube, '98
• Denise A. Johnson, '98
• Kelly M. Mann, '98
• Rafael E. Morell, '98
• Anne R. Myers, '97
• Jason A. Shrensky, '98