People on Complaint of Allen v. Citadel Management Co., Inc.

Citation355 N.Y.S.2d 976,78 Misc.2d 626
PartiesThe PEOPLE of the State of New York on the Complaint of Allan R. ALLEN, v. CITADEL MANAGEMENT CO., INC., Defendant.
Decision Date24 May 1974
CourtNew York City Court

Berger, Kramer & Levenson, New York City, by Carol Ule, New York City, of counsel, for complainant.

Marvin I. Edelstein, New York City, for defendant.

BENJAMIN E. LANDER, Judge:

The instant complaint is based on section 235 of the Real Property Law in that the corporate defendant is charged with having wilfully or intentionally failed to furnish hot water service to a tenant in breach of a lease or rental agreement, a violation. The case proceeded to trial, which began on March 1, 1974 in Summons Part II and was continued on four additional afternoon sessions. On the fifth court date, counsel for the defendant moved for a mistrial on the ground that the proceeding was invalid, alleging that the complaint should properly be prosecuted by the District Attorney's office or some other appropriate public official rather than attorney for the complainant, a private counsel.

Section 700(1) of the County Law provides that:

'It 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 . . . He shall perform such additional and related duties as may be prescribed by law and directed by the board of supervisers.'

According to section 927 of the County Law:

'It shall be the duty of the district attorney of the respective counties of New York, Bronx, Kings, Queens and Richmond to prosecute all crimes and offenses cognizable by the courts of the county for which he shall have been elected or appointed . . . He shall perform the duties prescribed in section seven hundred of this chapter and such other duties as are prescribed by law.'

Although section 700(1) of the County Law refers to a board of supervisors, which is clearly not the situation in the City of New York, section 927, specifically directed to the District Attorneys of the various counties comprising New York City, expressly states that he (the District Attorney) 'shall perform the duties prescribed in section seven hundred of this chapter . . ..' It is the contention of the defense that the foregoing provisions are not discretionary in nature, but that the use of the word 'shall' requires that the prosecution of all crimes and offenses be instituted by the District Attorney.

However, despite sections 700 and 927 of the County Law, it has long been common practice for the complainant to conduct the prosecution in certain cases, generally involving violations. Moreover, section 63(1) of the Executive Law states that the Attorney General shall prosecute and defend all actions and proceedings in which the state is interested, so that regardless of the term 'shall be the duty' in sections 700 and 927 of the County Law, the District Attorney does not, even by statute, possess exclusive prosecutorial authority. Section 63(1) of the Executive Law also uses the word 'shall,' although further on in the same subdivision, there is a declaration that no 'action or proceeding affecting the property or interests of the state shall be instituted, defended or conducted by any department, bureau, board, council, officer, agency or instrumentality of the state, without a notice to the attorney-general . . . so that he may participate or join therein if in his opinion the interests of the state so warrant.' Thus, notwithstanding the word 'shall' in reference to the Attorney General, it is clear that other state departments, bureaus, boards, etc. may also undertake legal actions or proceedings and that the Attorney General has discretion to decide which actions and proceedings he will prosecute or defend, as the case may be.

It is the view of this court that the term 'shall be the duty' is no more restrictive and exclusive where the District Attorney is involved than is use of the same word 'shall' in connection with the Attorney General. Further, an examination of the existing judicial authority on this issue supports the conclusion that prosecution of the instant criminal proceeding by the complainant's attorney was proper. As the court asserted in People v. Kramer, 33 Misc. 209, 220, 68 N.Y.S. 383, 391 (Ct. of General Sessions of the Peace, N.Y. County, 1900), 'So far as the defendant is concerned, it is not for him to select his prosecutor. If he has committed a crime against the people of the state, it is for the people of the state to say by whom they shall be represented on his trial.'

In People v. Black, 156 Misc. 516, 282 N.Y.S. 197 (County Ct., Otsego County, 1935), the defendant was accused of a violation of the game laws, a misdemeanor, for which he was tried before a justice and jury, convicted and sentenced. He challenged the validity of the judgment in that the People's case was prosecuted by an inspector of the Conservation Department, a person admittedly not even licensed to prosecute law. In affirming the judgment, however, the court explained that:

'We do not believe that the Legislature of this state sought to bring about so absurd a situation as is here presented. If it were intended that every time a rabbit be snared or a frog speared after dark that the heavy artillery of the offices of the Attorney General or the district attorney be wheeled into action, then the said Legislature was flying in the face of common sense and upsetting a century-old institution.' At p. 519, 282 N.Y.S. at p. 201.

The court, in People v. Scharer, 185 Misc. 616, 58 N.Y.S.2d 87 (City Magistrate's Ct., Brooklyn, 1945), upheld the right of inspectors of the Office of Price Administration, under the New York State War Emergency Act, who were the complaining witnesses, to prosecute the defendant where apparently the District Attorney, the Attorney General, and the corporation counsel all had elected not to act. According to the court, 'it is commonplace for the magistrates to avail themselves of the services of counsel representing the complaining witnesses . . ..' at p. 617, 58 N.Y.S.2d at p. 89.

In People v. Wyner, 207 Misc. 673, 142 N.Y.S.2d 393 (Westchester County Ct., 1955), there was a prosecution for driving while intoxicated by a village attorney rather than the District Attorney. Citing People v. Kramer, supra, the court stated that it is not for the defendant to select his prosecutor and that, historically, the District Attorney had seldom appeared in police courts or their successors, the courts of special sessions, since the 'right of the complainant to prosecute the case himself or to hire an attorney to assist him has never been doubted.' At p. 674, 142 N.Y.S.2d at p. 395.

Further, the court stated:

'Since the institution of the office of District Attorney in 1801, no reported case has been found holding that village or town attorneys or corporation counsels cannot prosecute cases in lower courts, nor has any case been found holding that private counsel cannot prosecute on behalf of a complaining witness. '. . . it is commonplace for the magistrates to avail themselves of the services of counsel representing the complaining witnesses' (People v. Scharer, 185 Misc. 616, 617, 58 N.Y.S.2d 87, 89).

'To say that this conviction is illegal because the prosecution was by one other than the District Attorney would require a reversal, not only of this conviction, but also a reversal of long-established and accepted procedure and practice of over a century . . .'

Similarly, the court in People v. Lanni, 10 Misc.2d 42, 168 N.Y.S.2d 35 (County Ct., Monroe County, 1957), decided, in a case in which the defendant was convicted of a violation of the Vehicle and Traffic Law, that he could not complain of unfairness in the trial where he had not been prosecuted by the District Attorney's office, since a defendant does not have the right to choose his prosecutor. In People v. Montgomery, 7 Misc.2d 294, 296, 166 N.Y.S.2d 455, 457 (Ct. of Special Sessions of City of New York, Richmond County, 1957), the defendant was charged with violating a section of the Sanitary Code of the City of New York. According to a unanimous court, the corporation counsel could properly prosecute rather than the District Attorney in that it 'is difficult to see what harm may be caused to defendant or how she may be prejudiced . . ..'

In Johnson v. Boldman, 24 Misc.2d 592, 203 N.Y.S.2d 760 (Sup.Ct., Tioga County, 1960) an Article 78 proceeding was instituted by the mayor to compel the District Attorney to prosecute those crimes, offenses and violations of the village cognizable by the Waverly Police Court. In the opinion of the court, the word 'duty' as used in section 700(1) of the County Law is surrounded by permissive and non-absolute implications and was intended by the Legislature not so much to require action as to preserve the right to act when sound discretion dictates, and the District Attorney, who was involved in the prosecution of serious crimes and other time-consuming matters of major concern, was justified in refusing to prosecute violations of village ordinances. The District Attorney, the court stated, is a quasi judicial officer with wide latitude in the exercise of his responsibility to prosecute crimes and offenses of a criminal nature provided there is an actual and reasonable exercise of his discretion.

The court, in People v. Apostle, 30 Misc.2d 55, 214 N.Y.S.2d 101 (County Ct., Rockland County, 1961), held that prosecution by an attorney for the park commission rather than the District Attorney or Attorney General was not unlawful and did not affect the validity of the conviction. In People v. De Leyden, 10 N.Y.2d 293, 220 N.Y.S.2d 961, 177 N.E.2d 924 (1961), there was no prosecutor...

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11 cases
  • People v. Jackson
    • United States
    • New York Supreme Court
    • 6 d3 Dezembro d3 1989
    ...to select which prosecutor should prosecute the case (People v. Kramer, 33 Misc. 209, 220, 68 N.Y.S. 383; People v. Citadel Management Co., 78 Misc.2d 626, 627, 355 N.Y.S.2d 976, reversed on other grounds 80 Misc.2d 668, 365 N.Y.S.2d 121; People v. Lanni, 10 Misc.2d 42, 44, 168 N.Y.S.2d d) ......
  • People v. Abajian
    • United States
    • New York Justice Court
    • 5 d4 Janeiro d4 1989
    ...Sickle, supra, have been complied with and, therefore, cases may be prosecuted by other persons. People v. Citadel Management Co., Inc., 78 Misc.2d 626, 355 N.Y.S.2d 976 (N.Y.Crim.Ct.1974); People v. Anonymous, 126 Misc.2d 673, 481 N.Y.S.2d 987 (N.Y.Crim.Ct.1984); People v. Vial, 132 Misc.2......
  • Conway v. Village of Mount Kisco, N.Y.
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    ...9, 242 N.Y.S.2d 34 (1963); People v. Vlasto, 78 Misc.2d 419, 355 N.Y.S.2d 983 (1974). But see People on Complaint of Allen v. Citadel Management Co., 78 Misc.2d 626, 355 N.Y.S.2d 976 (1974).15 To reduce expense, the briefs may be submitted in single-spaced typewritten letter form, not to ex......
  • People v. Rosenberg
    • United States
    • New York Court of Appeals Court of Appeals
    • 11 d2 Julho d2 1978
    ...Sickle, 13 N.Y.2d 61, 242 N.Y.S.2d 34, 192 N.E.2d 9; People v. Kramer, 33 Misc. 209, 220, 68 N.Y.S. 383, 391; cf. People v. Citadel Mgt. Co., 78 Misc.2d 626, 355 N.Y.S.2d 976, revd. on other grounds 80 Misc.2d 668, 365 N.Y.S.2d 121; Contra, People v. Vlasto, 78 Misc.2d 419, 355 N.Y.S.2d 983......
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