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.
] | [ISSUE & DISPOSITION
| [AUTHORITIES CITED
] | [COMMENTARY
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
Whether the Attorney General's Office can assist a district attorney in
a criminal case without an executive order.
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.
Cases Cited by the Court
Pirro v. Angiolillo,
1996 N.Y. Int. 237 (December 18,1996).
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
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).
Code § 67-1401(8) (1989).
Kan. Stat. Ann. § 75-704 (1989).
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
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.
The court expressly declines to address the implications of a personal
appearance by the Attorney General absent an executive order from the Governor.
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
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
, 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).
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