New York Law Review

Tag: Special Prosecutor

  • People v. Davidson, No. 86 (N.Y. 2016): Authority of Special Prosecutors to Prosecute in Local Criminal Courts

    People v. Davidson, No. 86 (N.Y. 2016)

    The New York Court of Appeals held that the special prosecutor appointed under Executive Law § 552 (2)(a) has the authority to prosecute abuse and neglect cases in local criminal courts, and that Executive Law § 552 (2)(c) does not limit the special prosecutor’s powers to only County and Supreme Courts and grand jury proceedings.

    Summary

    The case concerns the authority of a special prosecutor, appointed under New York’s “Protection of People with Special Needs Act,” to prosecute cases in local criminal courts. The defendant, an employee of a residential center for vulnerable persons, was charged with crimes in Town Court. She argued that the special prosecutor lacked authority to prosecute in local courts, citing Executive Law § 552 (2)(c), which she claimed limited the special prosecutor’s jurisdiction. The Court of Appeals affirmed the County Court’s decision, finding no statutory basis to restrict the special prosecutor’s power to higher courts only and therefore the prosecution was permissible.

    Facts

    The case arose from charges against the defendant, an employee of the Finger Lakes Residential Center, related to an incident involving a 14-year-old resident. The special prosecutor for the Protection of People with Special Needs Act brought charges of endangering the welfare of a child and harassment in the second degree in Town Court. The defendant moved to dismiss the charges, arguing the special prosecutor’s lack of authority to prosecute in Town Court. The Town Court agreed, but the County Court reversed, leading to an appeal to the Court of Appeals.

    Procedural History

    The case began in Town Court, where the defendant successfully argued for dismissal of the charges. The County Court reversed the Town Court’s decision and remanded the case for further proceedings. The defendant then appealed to the New York Court of Appeals, which affirmed the County Court’s order.

    Issue(s)

    1. Whether Executive Law § 552 (2)(c) limits the special prosecutor’s authority to prosecute abuse and neglect cases exclusively in County and Supreme Courts, and before a grand jury, thereby prohibiting prosecution in local criminal courts?

    Holding

    1. No, because the Court of Appeals held that there is no indication within Executive Law § 552 (2)(c) that the special prosecutor’s powers are limited to the superior courts and grand jury proceedings.

    Court’s Reasoning

    The Court of Appeals focused on the interpretation of Executive Law § 552 (2)(c). The court found that this section merely requires the special prosecutor to consult with the district attorney before appearing in County Court, Supreme Court, or before a grand jury. The court held that the statute’s language does not restrict the special prosecutor’s power to local courts. The court emphasized that the statute aimed to strengthen the state’s response to crimes against vulnerable persons and found no evidence that the legislature intended to limit the special prosecutor’s authority in local courts. The court affirmed the County Court’s interpretation that Section 552 (2) (c) constituted “an additional grant of authority permitting participation in and prosecution of felonies before the grand jury and the appropriate superior court.”

    Practical Implications

    This decision clarifies the scope of the special prosecutor’s authority under the Protection of People with Special Needs Act. It reinforces that the special prosecutor can prosecute cases in local criminal courts, which broadens the state’s capacity to address abuse and neglect of vulnerable persons. This case impacts how cases involving vulnerable individuals should be analyzed, specifically when determining the appropriate court for prosecution. It will likely lead to more cases being brought in local courts and a more expansive view of the special prosecutor’s role in combating crimes against vulnerable individuals. Further, this case provides a specific instance where the legislature can create an office with concurrent powers with an elected official so long as it does not diminish the core responsibilities of the elected official. This case supports the notion that the special prosecutor could appear in local court cases without district attorney consent, so long as such action does not interfere with the district attorney’s prosecution duties.

  • Working Families Party v. Fisher, 22 N.Y.3d 543 (2014): Standard for District Attorney Disqualification

    Working Families Party v. Fisher, 22 N.Y.3d 543 (2014)

    A district attorney seeking self-disqualification under County Law § 701(1) must demonstrate a good faith and reasonable basis for believing they are disqualified, a less stringent standard than when disqualification is sought by an adverse party.

    Summary

    This case concerns the appointment of a special district attorney to investigate potential election law violations. The Richmond County District Attorney, Daniel Donovan, sought his own disqualification, which was granted. The Working Families Party challenged the appointment, arguing the standard for disqualification wasn’t met and proper procedures weren’t followed. The Court of Appeals held that prohibition was an appropriate remedy to challenge the appointment, but ultimately affirmed the appointment, finding Donovan had a good faith basis for disqualification, and procedural errors in the appointment process were not substantial enough to invalidate it.

    Facts

    Daniel Donovan, the Richmond County District Attorney, applied for an order relieving him and his assistants from a case involving potential election law violations. He submitted an affirmation under seal detailing the facts warranting this action. The Deputy Chief Administrative Judge (DCAJ) granted the application and appointed Roger Bennet Adler as special district attorney. Adler then issued grand jury subpoenas, prompting the Working Families Party to challenge Adler’s appointment.

    Procedural History

    The Working Families Party initiated an Article 78 proceeding to vacate Adler’s appointment and quash the subpoenas. The Appellate Division denied the petition, holding that prohibition was not an appropriate remedy because the special prosecutor’s function was “executive in nature.” The Court of Appeals granted leave to appeal. The Court of Appeals affirmed the Appellate Division’s judgment, but on different grounds, holding that prohibition was appropriate but that the appointment was valid.

    Issue(s)

    1. Whether prohibition is an appropriate remedy to challenge the appointment of a special prosecutor.

    2. Whether the District Attorney demonstrated sufficient grounds for disqualification under County Law § 701(1) to warrant the appointment of a special prosecutor.

    3. Whether procedural irregularities in the appointment of the special prosecutor warrant nullifying the appointment.

    Holding

    1. Yes, because “prohibition is an appropriate remedy to void the improper appointment of a [special] prosecutor when made by a court.”

    2. Yes, because Donovan had a good faith, reasonable basis for believing he was disqualified from pursuing the investigation.

    3. No, because the procedural flaws were not substantial enough to justify nullifying the appointment.

    Court’s Reasoning

    The Court of Appeals reasoned that prohibition is an appropriate remedy to challenge the appointment of a special prosecutor because it provides a prompt and definitive answer to the validity of the appointment. Delaying this determination could lead to wasted resources and potential inability to prosecute cases. The Court distinguished Matter of McGinley v Hynes, noting that it did not involve a challenge to the validity of the appointment itself.

    Regarding the standard for disqualification, the Court rejected the argument that a district attorney has unreviewable discretion to recuse themselves. However, it also rejected the stringent standard applied when an adverse party seeks disqualification. Instead, the Court adopted the “good faith application containing the reasonable grounds for his belief that he is so disqualified” standard from People v Schrager. The Court found that Donovan met this standard based on the record, which remained sealed.

    Addressing the procedural flaws, the Court acknowledged that the DCAJ should have more meticulously followed the procedure outlined in Section 200.15 of the Uniform Rules for the New York State Trial Courts. However, the Court determined that these irregularities did not warrant nullifying the appointment because they did not prejudice any party. The Court prioritized the public interest in avoiding a lengthy investigation being restarted.

    The Court emphasized the importance of ensuring the validity of a prosecutor’s appointment early in the process to avoid wasting resources and potentially hindering prosecutions.

  • People v. Abrams, 16 N.Y.3d 760 (2011): Special Prosecutor Authority and Witness Immunity

    People v. Abrams, 16 N.Y.3d 760 (2011)

    A special prosecutor, duly appointed due to a conflict of interest of the district attorney, possesses the full discretionary authority of the district attorney, including the power to grant immunity to a witness, without needing explicit permission from the conflicted district attorney, provided no actual prejudice or abuse of confidence is demonstrated.

    Summary

    Emar Abrams was convicted of several charges, including weapon possession and reckless endangerment, after firing a gun in his estranged wife Tiffany’s apartment. A special prosecutor was appointed due to the elected District Attorney’s prior representation of Abrams. The special prosecutor granted Tiffany immunity to testify, after consulting with the conflicted District Attorney. Abrams appealed, arguing that the grant of immunity was invalid due to the District Attorney’s conflict of interest. The New York Court of Appeals affirmed the conviction, holding that the special prosecutor acted within their discretionary authority and that no actual prejudice or abuse of confidence was shown.

    Facts

    Tiffany Abrams and Emar Abrams, her estranged husband, were arguing in her apartment. Abrams fired a gun, with the bullet narrowly missing Tiffany and shattering her computer monitor. Abrams fled, and Tiffany reported the incident to her sister. Abrams took a taxi to his girlfriend, Tanisha Torres’s apartment and hid the gun in a lockbox in her bedroom. Torres, at Abrams’s request, hid the lockbox in her parents’ toolshed. Torres’s father discovered the gun and alerted the police. Ballistics testing confirmed it was the same gun used in Tiffany’s apartment. A special prosecutor was appointed due to the District Attorney’s prior representation of Abrams.

    Procedural History

    Abrams was convicted in County Court on multiple charges, including weapon possession and reckless endangerment. The Appellate Division affirmed the conviction. Abrams appealed to the New York Court of Appeals. The Court of Appeals affirmed the Appellate Division’s decision.

    Issue(s)

    Whether a special prosecutor, appointed due to a conflict of interest of the elected District Attorney, is authorized to grant immunity to a witness, specifically when the special prosecutor consulted with and obtained “permission” from the conflicted District Attorney to grant such immunity.

    Holding

    Yes, because the special prosecutor possesses the full discretionary authority of the District Attorney, and consulting with the conflicted District Attorney to confirm their power to grant immunity does not invalidate the grant, absent a showing of actual prejudice or a substantial risk of an abused confidence.

    Court’s Reasoning

    The Court of Appeals reasoned that under CPL 50.30, a prosecutor has the discretion to decide when to immunize a witness, and the County Court is authorized to confer immunity at the request of the District Attorney. Section 701 (4) of the County Law grants special prosecutors the same powers and duties as the District Attorney. The special prosecutor consulted with the District Attorney to confirm their authority to grant immunity, which did not invalidate the grant. The court emphasized that “the district attorney’s ‘permission’ did not vest the special prosecutor with any more authority than he already enjoyed.” The Court further stated that the record did not show that the District Attorney shared confidential information or influenced the decision to grant immunity. Citing People v. English, 88 NY2d 30, 34 (1996), the Court stated that “[a] defendant must establish actual prejudice or a substantial risk of an abused confidence” to warrant vacatur of the conviction, which Abrams failed to demonstrate.

  • Schumer v. Holtzman, 60 N.Y.2d 46 (1983): Limits on a District Attorney’s Delegation of Prosecutorial Authority

    Schumer v. Holtzman, 60 N.Y.2d 46 (1983)

    A District Attorney cannot delegate the fundamental responsibilities of their office, such as the discretionary judgment to initiate and control criminal prosecutions, to a subordinate; such a transfer of power can only be accomplished by executive or court order.

    Summary

    Charles Schumer, then a U.S. Congressman, challenged the appointment of Dean Trager as a special prosecutor by Kings County District Attorney Holtzman to investigate Schumer’s alleged misuse of state employees during his 1980 congressional campaign. Holtzman, believing she might be perceived as biased due to past political differences, appointed Trager with broad powers via a memorandum of understanding. The New York Court of Appeals held that the memorandum unlawfully delegated the District Attorney’s non-delegable prosecutorial discretion, thus the appointment was invalid under Article 78. The court emphasized that while a D.A. can delegate duties, they cannot transfer the fundamental responsibilities of the office without proper authorization.

    Facts

    Charles Schumer, a U.S. Congressman, was investigated for allegedly improper use of state employees during his 1980 congressional campaign. Elizabeth Holtzman, the District Attorney of Kings County, decided to pursue the charges locally after the U.S. Attorney declined federal prosecution. Holtzman, citing potential bias and the possibility of her former congressional staff being witnesses, requested the Governor to supersede her authority, which was denied. Holtzman then appointed Dean Trager as a “Special Assistant District Attorney,” granting him broad authority via a written memorandum of understanding to investigate and prosecute Schumer.

    Procedural History

    Schumer initiated an Article 78 proceeding challenging Trager’s appointment, seeking to rescind the appointment and prohibit Trager from performing his duties. Special Term held the appointment void and disqualified Holtzman from proceeding against Schumer. The Appellate Division agreed the appointment was void but reversed the disqualification of Holtzman. Both parties appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether an Article 78 proceeding in the nature of prohibition is an appropriate method to challenge the District Attorney’s delegation of power to a special prosecutor before an accusatory instrument is filed.
    2. Whether the memorandum of understanding between District Attorney Holtzman and Special Assistant District Attorney Trager constituted an unlawful delegation of the District Attorney’s prosecutorial authority.
    3. Whether the courts below erred in considering the disqualification issue of District Attorney Holtzman.

    Holding

    1. Yes, because the memorandum of understanding represents an unlawful delegation of the power to direct and control a criminal prosecution.
    2. Yes, because the memorandum of understanding attempted to divest the District Attorney of her discretionary judgment to initiate, pursue, and conclude investigations and prosecutions.
    3. Yes, because the application for disqualification was premature and not justiciable on the present record.

    Court’s Reasoning

    The Court of Appeals reasoned that prohibition is appropriate to prevent a body or officer acting in a judicial or quasi-judicial capacity from proceeding without or in excess of its jurisdiction. While typically applied to courts and judges, it can extend to public prosecutors performing a quasi-judicial function. The court distinguished this case from challenges to investigative activities, noting that the memorandum of understanding constituted a single agreement delegating both investigative and accusatorial activities to Trager. The court stated that, “[t]he memorandum manifestly attempts to divest respondent Holtzman of her discretionary judgment to initiate, pursue and conclude investigations and prosecutions and to set up an independent prosecutor to handle all aspects of the Schumer matter.”

    The court emphasized that a District Attorney’s powers are conferred by statute (County Law § 700) and, while duties can be delegated to assistants, the fundamental responsibilities of the office cannot be transferred without executive or court order. The court found the memorandum attempted to grant Trager a “free hand in all aspects of the Schumer matter,” exceeding the District Attorney’s authority under County Law § 930. The Court reasoned that allowing Trager to proceed under the memorandum would inevitably lead to future challenges, resulting in wasted resources and harassment.

    Regarding disqualification, the court held that judicial intervention to disqualify an attorney, particularly a District Attorney, is limited due to separation of powers considerations. The court stated that “The courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence… and the appearance of impropriety, standing alone, might not be grounds for disqualification.” The court deemed the application for disqualification premature, lacking a sufficient basis to determine whether Holtzman’s conduct met the criteria for judicial action.

  • People v. Rosenberg, 45 N.Y.2d 251 (1978): Jurisdiction of Special Prosecutor Extended to Schemes Involving the Appearance of Corruption

    People v. Rosenberg, 45 N.Y.2d 251 (1978)

    A Special Prosecutor’s jurisdiction extends to schemes that create the appearance of corruption within the criminal justice system, even if the charged crime doesn’t directly involve the corruption of a public official.

    Summary

    The People appealed an Appellate Division order prohibiting the Special Prosecutor from prosecuting Rosenberg for attempted grand larceny. Rosenberg, an attorney, was accused of falsely promising his client that money would be used to “fix” his case, involving a law secretary to a Supreme Court Justice as a conduit. The Appellate Division believed the Special Prosecutor lacked jurisdiction. The Court of Appeals reversed, holding that the Special Prosecutor did have jurisdiction. The scheme reeked of the type of corruption the Special Prosecutor was appointed to address, and the involvement of the law secretary sufficiently connected the act to the administration of criminal justice, even if the attorney was not explicitly charged with corruption. The court emphasized that delayed prosecutions should be expedited.

    Facts

    The Special Prosecutor received information about a woman claiming she could improperly influence the criminal justice system. Investigators obtained evidence and convinced her to become an informant. The informant implicated a Supreme Court Justice’s law secretary, who then cooperated with the investigation.
    Rosenberg, an attorney, was indicted for attempted bribery, conspiracy to commit bribery, and attempted grand larceny. The charges stemmed from allegations he attempted to bribe a judge to fix a client’s case or, alternatively, that he falsely claimed he would use the money to fix the case, but had no intention of doing so. The initial indictment was dismissed due to irregularities.
    The Special Prosecutor presented the matter to a second Grand Jury, which indicted Rosenberg for attempted grand larceny in the second degree based on the false promise of a “fix”.

    Procedural History

    Rosenberg obtained permission to move in the Appellate Division to prohibit the Special Prosecutor from prosecuting the indictment, arguing a lack of jurisdiction under Judiciary Law § 149(2).
    The Appellate Division granted the order prohibiting the Special Prosecutor, but did not dismiss the indictment, leaving further action to the local District Attorney.
    The People appealed to the Court of Appeals by permission.

    Issue(s)

    Whether the People may appeal to the Court of Appeals from an order of the Appellate Division dismissing an indictment pursuant to a motion made in accordance with subdivision 2 of section 149 of the Judiciary Law.
    Whether the Special Prosecutor had jurisdiction to prosecute Rosenberg for attempted grand larceny based on allegations of a scheme to falsely promise a “fix” involving a law secretary to a Supreme Court Justice.

    Holding

    Yes, because such an appeal would be permissible from an order of the Appellate Division affirming a dismissal of an indictment by the Supreme Court.
    Yes, because the scheme, involving a law secretary, was sufficiently connected to the administration of criminal justice, even if Rosenberg was not explicitly charged with corrupting a public official.

    Court’s Reasoning

    The Court addressed the appealability of the Appellate Division’s order, clarifying that the People’s right to appeal a dismissal of an indictment should not be thwarted by initially bringing the motion to dismiss in the Appellate Division, rather than the Supreme Court.
    The court emphasized that Judiciary Law § 149(2) was enacted to address the abuse of challenging indictments at any regular term of the Supreme Court, and that it required such motions to be made either at the Extraordinary Trial or Special Term from whence the indictment issued or directly in the Appellate Division.
    The court characterized the Appellate Division’s grant of prohibition as an improper remedy, as prohibition is a civil remedy not available through a Judiciary Law § 149(2) motion in a criminal proceeding.
    Regarding the Special Prosecutor’s jurisdiction, the court referenced Executive Order No. 58 (9 NYCRR 1.58), which grants jurisdiction over acts connected with corrupt acts by a public servant relating to the enforcement of law or administration of criminal justice in New York City.
    The court distinguished this case from Matter of Dondi v Jones, where the Special Prosecutor lacked jurisdiction because the act of bribery was connected to a civil trial, not the administration of criminal justice.
    Here, the court found that the scheme involving a law secretary to a Judge to collect money supposedly intended to corrupt the administration of criminal justice was “an act * * * connected with corrupt acts * * * by a public servant * * * arising out of, relating to or in any way connected with the enforcement of law or administration of criminal justice”. The court clarified that the crime charged did not need to constitute a corruption of the public official involved.
    The court concluded by stating that the prosecution of the indictment should be expedited, highlighting the delays caused by the defendant’s procedural maneuvers.

  • Windsor Park Nursing Home v. Hynes, 42 N.Y.2d 243 (1977): Limits on Special Prosecutor’s Subpoena Power

    Windsor Park Nursing Home v. Hynes, 42 N.Y.2d 243 (1977)

    A Special Prosecutor’s authority to issue subpoenas does not automatically grant the power to seize and retain possession of subpoenaed documents for private examination and audit; such power requires explicit legislative authorization.

    Summary

    Windsor Park Nursing Home challenged a subpoena duces tecum issued by the Special Prosecutor, arguing lack of relevancy and the prosecutor’s inability to seize and examine the records. The Special Prosecutor cited a prior audit revealing wrongfully claimed expenses. The Court of Appeals held that while the subpoena was relevant, the prosecutor lacked statutory authority to retain the records for audit and examination. The court emphasized that subpoena power does not equate to the power of seizure and audit, which requires specific legislative authorization, even in situations where other agencies have both audit and subpoena powers.

    Facts

    Windsor Park Nursing Home received a subpoena duces tecum from the Special Prosecutor as part of a nursing home inquiry.
    The Special Prosecutor’s action was partly based on a 1969 audit by the State Department of Health that indicated $21,077 in wrongfully claimed expenses by the nursing home.
    Windsor Park contended the disallowed expenses were due to cost ceilings on legitimate patient-related expenses, while the Special Prosecutor alleged some disallowed items were payments for personal items of directors and partners.

    Procedural History

    Windsor Park moved to quash the subpoena.
    Criminal Term denied the motion but allowed a representative of Windsor Park or its counsel to be present during the audit, inspection, photocopying, and examination of the records and limited the time the documents could be retained.
    The Appellate Division modified the order by striking the provision allowing petitioner or its representative to be present during the audit.
    The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the Special Prosecutor established a sufficient factual basis for the issuance of the subpoena duces tecum.
    Whether the subpoena entitled the Special Prosecutor to retain possession of the subpoenaed books and records for private examination and audit.

    Holding

    No, the Special Prosecutor’s subpoena power did not grant him the authority to retain the books and records for audit and examination because the relevant statute did not explicitly authorize such action.

    Court’s Reasoning

    The Court found the relevancy question easily resolved because nonjudicial office subpoenas only require a “reasonable relation to the subject-matter under investigation and to the public purpose to be achieved.”
    The Court stated that probable cause of wrongdoing is not essential for a subpoena, and the records sought were clearly related to the nursing home. Citing Matter of Alexander v New York State Comm, to Investigate Harness Racing, the court noted the prosecutor is “restricted to such material as is relevant to the subject of the inquiry, but [he] is not obliged to take petitioners’ word for what is or is not relevant.”
    The authorization to conduct an inquiry and issue subpoenas under Executive Law § 63(8) does not translate to authorization to take possession of books and records for examination and audit.
    The court emphasized that when the Legislature has authorized a government agency to examine or audit records, the enabling statute has expressly spelled out that power.
    The Court noted that many agencies with audit powers also have subpoena powers, implying the Legislature intended these powers to serve separate purposes.
    The Court used civil litigation discovery rules (CPLR 3120) as an analogous example, stating that if subpoena power included the power to inspect and copy, CPLR 3120 would be superfluous.
    The Court concluded the statute under which the Special Prosecutor issued the subpoena did not authorize him to retain custody of the documents. To grant such power would require legislative action, not judicial interpretation.