Murphy on Behalf of Rensselaer County v. Dwyer
| Decision Date | 17 May 1984 |
| Citation | 476 N.Y.S.2d 217,101 A.D.2d 376 |
| Parties | In the Matter of William J. MURPHY, as Rensselaer County Executive on Behalf of the COUNTY OF RENSSELAER, Petitioner, v. M. Andrew DWYER, Jr., as Rensselaer County Judge, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Marvin I. Honig, Rensselaer County Atty., New York City (Gordon R. Mayo, Troy, of counsel), for petitioner.
Robert Abrams, Atty. Gen., Albany (Peter G. Crary, Asst. Atty. Gen., Albany, of counsel), for M. Andrew Dwyer, Jr., respondent.
Charles J. Wilcox, Rensselaer County Dist. Atty., respondent (Richard L. Nabozny, Troy, of counsel).
Before MAHONEY, P.J., and KANE, WEISS, MIKOLL and YESAWICH, JJ.
Does section 701 of the County Law, which provides for court appointment of a special prosecutor when the District Attorney is absent from court or upon his disqualification from acting in a particular case at a term of court, authorize such appointment when a District Attorney refuses, as a matter of policy adopted by him, to participate in an appeal from a conviction for violation of the Vehicle and Traffic Law? We think not and, for the reasons stated, grant the instant petition of the Rensselaer County Executive to the extent of vacating the order of Rensselaer County Court which appointed a special prosecutor to prepare a brief and argue an appeal by a defendant in the case entitled People v. Rediker, 97 A.D.2d 928, 470 N.Y.S.2d 734. We decline, however, to grant that portion of the petition which seeks an order directing respondent Rensselaer County District Attorney to prepare a brief and argue the appeal in that case.
The facts are undisputed. Following a trial before the Brunswick Town Justice, Harry Rediker was found guilty of a violation of section 1163 (subd. ) of the Vehicle and Traffic Law for making an unsafe turn. A deputy sheriff prosecuted the case in the town's Justice Court. Rediker appealed to County Court of Rensselaer County and, when no opposing brief was filed, moved by order to show cause for vacatur of his conviction. While that motion was pending, the Brunswick Town Attorney obtained an order to show cause seeking an order requiring either the District Attorney or the county attorney to file a brief and represent the People on the appeal. Holding that the District Attorney is not required to prosecute either traffic offenses or appeals, that the town attorney and county attorney do not handle criminal proceedings under the mandate of their offices, and that the deputy sheriff who tried the case initially is not an attorney or trained to prepare a brief, County Court appointed a special prosecutor by order dated February 15, 1983 for the purpose of preparing a brief and arguing the appeal in the Rediker case. Petitioner commenced the instant CPLR article 78 proceeding, which he characterizes to be in the nature of certiorari, and which the Attorney-General, representing the County Court Judge, considers to be in the nature of prohibition and mandamus.
While subdivision 1 of section 700 of the County Law clearly and without ambiguity states that "shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected or appointed", there is nonetheless substantial precedent and authority holding that a District Attorney enjoys wide latitude and discretion to allocate and utilize both the manpower and resources of his office in the manner believed to be most effective to the discharge of his duties (People v. Peterson, 91 Misc.2d 407, 411, 398 N.Y.S.2d 24; People v. Bowman, 88 Misc.2d 50, 387 N.Y.S.2d 982). Thus, it is well settled that the District Attorney's office need not prosecute every violation or offense (1978 Opns St Comp 69, 70; 1979 Opns Atty Gen 54, 55). Indeed, it is no longer open to question that petty crimes or offenses may be prosecuted in courts of special sessions by administrative officers and attorneys other than the District Attorney (People v. Czajka, 11 N.Y.2d 253, 254, 228...
To continue reading
Request your trial
-
In the Matter of P. David Soares v. Herrick
...at 19, 386 N.Y.S.2d 4, 351 N.E.2d 650; Matter of Cloke v. Pulver, 243 A.D.2d at 189, 675 N.Y.S.2d 650; Matter of Murphy v. Dwyer, 101 A.D.2d 376, 377–378, 476 N.Y.S.2d 217 [1984] ). For this reason, the exceptional superceder power of disqualification visited upon the courts, and the attend......
-
Holtzman v. Hellenbrand
...People v. Mackell, 47 A.D.2d 209, 217, 366 N.Y.S.2d 173, affd. 40 N.Y.2d 59, 386 N.Y.S.2d 37, 351 N.E.2d 684; Matter of Murphy v. Dwyer, 101 A.D.2d 376, 378, 476 N.Y.S.2d 217; People v. Vial, 132 Misc.2d 5, 9, 502 N.Y.S.2d 930; People v. Anonymous, 126 Misc.2d 673, 674, 481 N.Y.S.2d 987; Ma......
-
People v. McCarter
...260 [2012] ; Cloke v. Pulver , 243 A.D.2d 185, 188, 675 N.Y.S.2d 650 [3d Dept. 1998] ; Murphy on Behalf of Rensselaer County. v. Dwyer , 101 A.D.2d 376, 378—79, 476 N.Y.S.2d 217 [2d Dept. 1984] ). The District Attorney's repeated references to Matter of Soares v. Carter , 25 N.Y.3d 1011, 10......
-
Cloke v. Pulver
...v. Hellenbrand, 130 A.D.2d 749, 750, 515 N.Y.S.2d 843, lv. denied 70 N.Y.2d 607, 521 N.Y.S.2d 224, 515 N.E.2d 909; Matter of Murphy v. Dwyer, 101 A.D.2d 376, 476 N.Y.S.2d 217; Matter of Wilcox v. Dwyer, 73 A.D.2d 1016, 1017, 423 N.Y.S.2d 964; Matter of Board of Supervisors of Montgomery Cou......