7 N.Y.3d 503 (2006)

The Welfare Inspector General’s (WIG) authority to initiate criminal prosecutions is limited to fraud and illegality occurring within the Department of Social Services or local social services districts, or by contractees or recipients of public assistance services, and does not extend to enforcing licensing requirements of the Department of Health.

Summary

Frank Cuttita was convicted of operating an adult care facility without a license. The prosecution was initiated by the Welfare Inspector General (WIG). Cuttita appealed, arguing that the WIG lacked statutory authority to prosecute him. The New York Court of Appeals reversed, holding that the WIG’s prosecutorial authority under Executive Law § 74 (3)(d) is limited to fraud and illegal acts within the Department of Social Services or by those receiving public assistance. Operating an unlicensed adult care facility, which falls under the regulatory purview of the Department of Health, does not fall within the WIG’s jurisdiction. Further, a request to the Attorney General was insufficient to confer jurisdiction because the request did not pertain to matters the WIG was “especially required to execute”.

Facts

Frank Cuttita operated communal residences for adults in Sullivan County. The State argued these were unlicensed adult care facilities requiring licensing by either the Department of Health (DOH) or the Office of Children and Family Services (OCFS), depending on the number of residents and services provided. Cuttita refused to apply for licenses, claiming the properties were boarding houses. After a complaint, DOH inspected the residences and determined Cuttita was operating adult care facilities without a license. The WIG requested the Attorney General investigate “any indictable offense or offenses in violation of the law which the Welfare Inspector General is especially required to execute.”

Procedural History

The Attorney General filed a civil action resulting in an injunction against Cuttita operating an unlicensed adult care facility, affirmed on appeal. Separately, Cuttita was charged in Town of Liberty Justice Court with operating an adult care facility without approval. Justice Court denied Cuttita’s motion to dismiss based on lack of WIG jurisdiction. Cuttitta was convicted. County Court affirmed the conviction. The New York Court of Appeals granted leave to appeal.

Issue(s)

Whether the Welfare Inspector General (WIG) had the statutory authority under Executive Law § 74(3)(d) to prosecute Cuttita for operating an adult care facility without a license in violation of Social Services Law § 461-b(2)(c)?

Whether the WIG’s request to the Attorney General was sufficient to invoke the Attorney General’s authority under Executive Law § 63(3) to prosecute Cuttita?

Holding

No, because the WIG’s prosecutorial authority is limited to fraud and illegal acts perpetrated within the Department of Social Services or by contractees or recipients of public assistance, and Cuttita’s actions did not fall within these categories.

No, because the request did not pertain to matters the WIG was “especially required to execute”.

Court’s Reasoning

The Court reasoned that Executive Law § 74 (3)(d) restricts the WIG’s prosecutorial powers to illegal acts committed internally within the Department of Social Services (DSS), OCFS, or local social services districts, or by contractees or recipients of public assistance. The Court emphasized that the Legislature did not vest the WIG with a wide-ranging mandate, but confined it to fraud and illegality occurring within the specified entities. The Court stated, “Rather than vesting the WIG with a wide-ranging mandate to investigate and prosecute any programs or matters regulated by DOH or OCFS, the Legislature chose to confine the WIG’s prosecutorial authority to fraud and illegality occurring ‘within the department of social services or local social services districts’.” Cuttita was not a state employee, contractee, or recipient of government assistance; therefore, his actions did not fall within the WIG’s jurisdiction.

Regarding Executive Law § 63 (3), the Court clarified that the Attorney General’s power to prosecute crimes is limited to instances specifically permitted by law. While § 63 (3) allows the Attorney General to investigate and prosecute criminal conduct upon the request of certain state officials, the WIG’s request was insufficient because it pertained to matters within the purview of DOH and OCFS, not matters the WIG was “especially required to execute.” The court emphasized, “Investigating adult care facilities and ensuring compliance with Social Services Law § 461-b (2) (c) and other licensing requirements are the responsibility of DOH and OCFS… Thus, it follows that the operation of an unlicensed adult care facility neither involves a law that the WIG is required to execute nor pertains to a ‘matter[ ] connected with’ the WIG.” The court explicitly noted that the Commissioner of Health had sent a referral letter but that it was not raised in lower courts, and was therefore, not preserved for review.