Emmi v. Burke
| Decision Date | 07 February 1997 |
| Citation | 236 A.D.2d 854,653 N.Y.S.2d 780 |
| Parties | Matter of Angelo EMMI, Petitioner, v. Honorable William J. BURKE, Onondaga County Court Judge, Honorable Dennis C. Vacco, New York State Attorney-General, and Anthony J. Pietrafesa, Assistant New York State Attorney-General, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Paul G. Carey, Syracuse, for Petitioner.
Dennis Vacco, Attorney General (Arthur G. Weinstein, of counsel), New York City, for Respondent.
Before PINE, J.P., and LAWTON, CALLAHAN, DOERR and BOEHM, JJ.
In this original CPLR article 78 proceeding, petitioner seeks to prohibit respondents from proceeding on Onondaga County indictment No. 96-0612-1 and further seeks dismissal of that indictment. Petitioner, who was employed as a pharmacist at the State University of New York Health Science Center, was charged in that indictment with the crimes of grand larceny in the first degree (Penal Law § 155.42) and criminal diversion of prescription medications and prescriptions in the second degree (Penal Law § 178.20) for wrongfully taking and converting to his own use more than $3,000,000 in prescription medications. The indictment was returned following an investigation by members of the Attorney-General's Medicaid Fraud Control Unit and the matter was assigned to Onondaga County Court Judge William J. Burke. The petition asserts that Judge Burke is acting in excess of his jurisdiction by presiding over this criminal prosecution and that the Attorney-General and his assistants lack constitutional and statutory authority to prosecute the crimes alleged in the indictment. We disagree.
Preliminarily, we note that this Court has subject matter jurisdiction to consider this prohibition proceeding challenging the authority of the Attorney-General. Judge Burke is a proper respondent and the proceeding is therefore within the original jurisdiction of this Court (see, Matter of Haggerty v. Himelein, 221 A.D.2d 138, 143-144, 644 N.Y.S.2d 934, lv granted 88 N.Y.2d 809, 648 N.Y.S.2d 878, 671 N.E.2d 1275).
On the merits, we conclude that the Attorney-General has legal authority to prosecute the crimes alleged in the indictment. Executive Law § 63(3) authorizes the Attorney-General, upon the request of the head of any State department, to investigate the alleged commission of any indictable offense in relation to any matter connected with such department and to prosecute the person or persons believed to have committed such offense, including appearing before and presenting the matter to a Grand Jury. That subdivision grants the Attorney-General broad investigatory and prosecutory powers and should be construed to accomplish the purpose intended (see, Matter of Mann Judd Landau v. Hynes, 49 N.Y.2d 128, 135-138, 424 N.Y.S.2d 380, 400 N.E.2d 321; Matter of Du Rose...
To continue reading
Request your trial
-
People v. Gilmour
... ... Matter of Emmi v. Burke, 236 A.D.2d 854, 653 N.Y.S.2d 780; see, Matter of Mann Judd Landau v. Hynes, 49 N.Y.2d 128, 135-138, 424 N.Y.S.2d 380, 400 N.E.2d 321; ... ...
- Emmi v. Burke
-
Fetcho v. Brandt
... ... Weinstein, of counsel), New York City, for Respondents ... Petition unanimously dismissed without costs (see, Matter of Emmi v. Burke, 236 A.D.2d 842, 653 N.Y.S.2d 780 [decided herewith] ). (Original Proceeding Pursuant to CPLR art. 78.) ... PINE, J.P., and ... ...