Haggerty v. Himelein
| Decision Date | 06 February 1997 |
| Citation | 89 N.Y.2d 431,654 N.Y.S.2d 705,677 N.E.2d 276 |
| Parties | , 677 N.E.2d 276 In the Matter of Kerrie L. HAGGERTY, on Behalf of Herself and Others, et al., Respondents, v. Larry M. HIMELEIN, as Cattaraugus County Court Judge, Respondent, and Michael P. Nevins, as Cattaraugus County District Attorney, et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Kevin King died October 23, 1994 during what eyewitnesses described as a mob attack outside a pizzeria in the City of Olean, Cattaraugus County. The matter was submitted to a Grand Jury by the Cattaraugus County District Attorney. Some four months after the occurrence, the Grand Jury returned a no true bill. The Grand Jury's failure to indict the persons allegedly involved in King's death evoked a bitter public protest by the victim's family that the case had been mishandled. The ensuing local community outcry prompted a resolution of the County Legislature, endorsed by the District Attorney, requesting the assistance of the State Attorney-General.
The Attorney-General accepted the invitation to assist in the King matter. On that basis, he and four Assistant Attorneys-General were appointed by the District Attorney as Assistant District Attorneys for Cattaraugus County. One of those assistants then prepared and submitted, in his capacity as an Assistant District Attorney, an application for permission to re-present the matter to another Grand Jury pursuant to CPL 190.75(3). After respondent Larry M. Himelein, Cattaraugus County Judge, granted the application, the King fatality was again presented to a Grand Jury by one of the newly appointed prosecutors from the Attorney-General's staff. The Grand Jury handed up a 42-count indictment charging petitioners with various offenses against King, including depraved mind murder, manslaughter, criminally negligent homicide and first and second degree assaults.
In addition to moving to dismiss the indictment in the criminal action in County Court, petitioners brought this CPLR article 78 proceeding before the Appellate Division seeking a writ of prohibition against respondents. The gravamen of their claim is that, in the absence of an Executive Order of superseder issued by the Governor pursuant to Executive Law § 63(2), the Attorney-General and his staff were and remain without jurisdictional authority to assume any prosecutorial role in this local criminal matter. The relief requested was an order enjoining the County Judge and District Attorney, as well as the Attorney-General and members of his staff, from proceeding further in prosecuting the case, and dismissing the indictment.
The Appellate Division agreed with petitioners that the sole basis for the Attorney-General's office to intervene in this criminal prosecution was by superseder ordered by the Governor pursuant to Executive Law § 63(2) (221 A.D.2d 138, 644 N.Y.S.2d 934). The Court concluded that the absence of an Executive Order was a fatal jurisdictional defect preventing all respondents from proceeding to trial on the indictment. Accordingly, the Appellate Division granted the petition in all respects, except for the request to dismiss the indictment--a matter found to be not properly before that Court (id.). We granted the motions of the Attorney-General and District Attorney for leave to appeal, and now reverse.
As this Court recently reiterated in Matter of Pirro v. Angiolillo, 89 N.Y.2d 351, 355, 356, 653 N.Y.S.2d 237, 675 N.E.2d 1189, the extraordinary remedy of prohibition is only available to prevent a judicial or quasi-judicial body or officer from proceeding or threatening to proceed without or in excess of its jurisdiction, and then only if a clear legal right to that relief has been established. Prohibition may lie against a prosecutor (as well as against a court) in performing the quasi-judicial role of "represent[ing] the public in bringing those accused of crime to justice" (Matter of Schumer v. Holtzman, 60 N.Y.2d 46, 51, 467 N.Y.S.2d 182, 454 N.E.2d 522; see also, Matter of Forte v. Supreme Ct. of State of N.Y., 48 N.Y.2d 179, 185, 422 N.Y.S.2d 26, 397 N.E.2d 717; Matter of Dondi v. Jones, 40 N.Y.2d 8, 13, 386 N.Y.S.2d 4, 351 N.E.2d 650). Prohibition may also be available against the Attorney-General when exercising or threatening to exercise an ultra vires prosecutorial function (see, Matter of B.T. Prods. v. Barr, 44 N.Y.2d 226, 405 N.Y.S.2d 9, 376 N.E.2d 171).
We have held that the Attorney-General's prosecutorial authority is strictly limited to the specific statutory grants of such authority (see, Della Pietra v. State of New York, 71 N.Y.2d 792, 796-797, 530 N.Y.S.2d 510, 526 N.E.2d 1). Nonetheless, petitioners have failed to establish here that the Attorney-General or his staff have acted or threatened to act without or in excess of duly prescribed jurisdiction. Indeed, the essential deficiency in petitioners' proof is the absence of any evidence that the Attorney-General was purporting to exercise the prosecutorial authority of that office in the instant case.
As is plainly provided in Executive Law § 63(2), in those instances when the Attorney-General exercises prescribed superseder authority to assume the prosecutorial function, that office then acquires "all the powers and perform[s] all the duties in respect...
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...only, as distinguished from legislative, executive or ministerial action" (Matter of Dondi v Jones, 40 N.Y.2d 8, 13; see Matter of Haggerty v Himelein, 89 N.Y.2d at 435; Matter of B.T. Prods. v Barr, 44 N.Y.2d 231-232). "The extraordinary remedy of prohibition is never available merely to c......
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