New York Law Review

Tag: district attorney

  • Matter of Johnson v. Pataki, 91 N.Y.2d 214 (1997): Gubernatorial Power to Supersede a District Attorney

    91 N.Y.2d 214 (1997)

    The Governor of New York has the constitutional and statutory authority to supersede a District Attorney in a criminal prosecution, and this authority is subject to limited judicial review, primarily focusing on whether the Governor acted within the scope of their power.

    Summary

    This case concerns Governor Pataki’s executive order superseding Bronx County District Attorney Johnson in a potential death penalty case related to the murder of a police officer. The Governor believed Johnson had a blanket policy against the death penalty, hindering its faithful execution. Johnson and Bronx County voters challenged the order, arguing the District Attorney’s independence was violated. The New York Court of Appeals upheld the Governor’s action, asserting his constitutional and statutory authority to ensure laws are faithfully executed, subject to limited judicial review focused on the scope of the Governor’s power.

    Facts

    On March 21, 1996, Governor Pataki issued Executive Order No. 27, directing the Attorney General to supersede District Attorney Johnson in investigations and proceedings related to the shooting death of Police Officer Kevin Gillespie. The Executive Order cited District Attorney Johnson’s prior statements and actions indicating a blanket policy against seeking the death penalty. Angel Diaz was later indicted for first-degree murder in connection with Officer Gillespie’s death.

    Procedural History

    District Attorney Johnson and Bronx County voters initiated CPLR Article 78 proceedings challenging the executive order. The Supreme Court dismissed both petitions, deeming the superseder an executive action within valid authority and thus nonjusticiable, also finding ample basis for the Governor’s action. The Appellate Division affirmed the dismissal, holding that the Governor acted within constitutional or statutory authority and that intervention was justified. Diaz later committed suicide, and accomplices were tried in federal court.

    Issue(s)

    Whether the Governor of New York has the constitutional and statutory authority to supersede a District Attorney in a criminal prosecution, and if so, to what extent is this authority subject to judicial review?

    Holding

    Yes, the Governor has the authority because article IV, § 3 of the New York Constitution and Executive Law § 63 (2) grant the Governor discretionary power to ensure laws are faithfully executed, and judicial review is limited to determining whether the Governor acted within the scope of this constitutional and statutory grant of authority.

    Court’s Reasoning

    The Court reasoned that the Governor’s power to supersede a District Attorney stems from the constitutional duty to ensure faithful execution of laws (Article IV, § 3) and Executive Law § 63(2), which allows the Governor to direct the Attorney General to manage criminal proceedings. Judicial review is limited to determining whether the Governor had the power to act, not the wisdom of the action. The Court rejected arguments that the District Attorney’s independence or the death penalty statute limited the Governor’s power. The Court stated, “the Governor acted lawfully under constitutional and statutory authority, and that even if the rationale for his action were subject to judicial review the superseder order here would be valid.” The court also found that Executive Order No. 27 expressed the Governor’s executive judgment that there was a threat to faithful execution of the death penalty law that supported this particular superseder.

    While acknowledging potential limitations on the superseder power in extreme circumstances (citing *Mulroy v. Carey*), the Court found no such circumstances present here. The dissent argued that the Governor overstepped by substituting his policy preference for the District Attorney’s discretion under the death penalty statute.

  • Toker v. Pollak, 44 N.Y.2d 211 (1978): Qualified Privilege for Reporting Potential Crimes

    Toker v. Pollak, 44 N.Y.2d 211 (1978)

    Communications to a District Attorney or the Department of Investigation regarding potential criminal activity are protected by a qualified, rather than an absolute, privilege in a defamation action.

    Summary

    Toker, a candidate for Civil Court Judge, sued Stern for defamation after Stern reported a potential bribery incident involving Toker to the Mayor’s Committee on the Judiciary, the Department of Investigation, and the District Attorney. The Court of Appeals held that Stern’s communications to the District Attorney and the Department of Investigation were protected by a qualified privilege, meaning Toker had to prove malice to recover damages. The court reasoned that absolute immunity should be reserved for judicial or quasi-judicial proceedings, which these communications did not constitute, and that a qualified privilege adequately balances the need to encourage reporting of potential crimes with the protection of individual reputations.

    Facts

    Stern’s mother was injured in a fall. Toker, as Assistant Corporation Counsel, settled the claim. Stern heard from Poliak that Poliak had paid Toker a bribe. Years later, when Toker ran for judge, Stern told Victor Kovner of the Mayor’s Committee on the Judiciary about the alleged bribe. Toker was then considered for appointment to the Criminal Court. Kovner asked Stern to reaffirm the information, and Stern was later contacted by the Department of Investigation and the District Attorney regarding the matter. Stern gave an affidavit to the District Attorney summarizing his testimony, under threat of a Grand Jury subpoena.

    Procedural History

    Toker sued Poliak and Stern for libel and slander. Special Term granted Poliak summary judgment on the libel cause of action. Special Term denied Stern’s motion for summary judgment, finding a qualified privilege. The Appellate Division modified, granting Stern summary judgment on the libel cause of action, finding an absolute privilege for the affidavit to the District Attorney. Both parties appealed to the Court of Appeals.

    Issue(s)

    1. Whether oral statements made by Stern to the District Attorney concerning the possible commission of a crime by Toker are protected by an absolute or a qualified privilege?

    2. Whether the affidavit submitted to the District Attorney by Stern in lieu of an appearance before the Grand Jury is protected by an absolute or a qualified privilege?

    3. Whether Stern’s statements to the Department of Investigation are protected by an absolute or qualified privilege?

    Holding

    1. No, because the communication of a complaint to a District Attorney does not constitute or institute a judicial proceeding, therefore a qualified privilege applies.

    2. No, because no statutory directive requiring confidentiality exists with respect to communications made to a District Attorney, therefore a qualified privilege applies.

    3. No, because the Department of Investigation does not act in a quasi-judicial capacity, therefore a qualified privilege applies.

    Court’s Reasoning

    The court distinguished between absolute and qualified privileges in defamation law. Absolute privilege provides immunity regardless of motive, while qualified privilege negates implied malice, placing the burden on the plaintiff to prove malice. Absolute privilege typically applies to participants in public functions like judicial, legislative, or executive proceedings. A qualified privilege applies when a communication is “fairly made by a person in the discharge of some public or private duty…or in the conduct of his own affairs, in a matter where his interest is concerned.”

    The court held that communications to a prosecuting attorney fall between communications to a policeman (qualified privilege) and testimony before a Grand Jury (absolute privilege). Reaffirming Pecue v. West, the court stated that a complaint to a District Attorney, without more, does not constitute a judicial proceeding. The court rejected Stern’s argument that the threat of a Grand Jury subpoena warranted absolute immunity, emphasizing that Grand Jury proceedings are statutorily secret, whereas communications to a District Attorney are not.

    Concerning the Department of Investigation, the court reasoned that the lack of a quasi-judicial hearing with safeguards for Toker meant that communications to this body should also be qualifiedly privileged. To grant absolute immunity in such a context would provide “an unchecked vehicle for silent but effective character assassination.” The court emphasized the need to balance the importance of selecting qualified judges with the right of individuals to defend against attacks on their character. Public policy is aptly served by application of a qualified privilege.

    The court noted, “[p]roof of such indirect motive will defeat the privilege which would otherwise have attached, for it is not to the convenience and welfare of society that false and injurious communications as to the reputation of others should be made, not for the furtherance of some good object, but for the gratification of an evil and malicious disposition or for any other object than that which gave rise to the privilege.”