People v. Di Falco
| Decision Date | 31 May 1978 |
| Parties | , 377 N.E.2d 732 The PEOPLE of the State of New York, Appellant, v. S. Samuel DiFALCO, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
John F. Keenan, Deputy Atty. Gen. and Sp. Prosecutor (Thomas A. Duffy, Jr., Great Neck, of counsel), for appellant.
Joseph J. Marcheso and Philip M. Kazin, New York City, for respondent.
The Special State Prosecutor obtained a two-count indictment from the Grand Jury of the Extraordinary Special and Trial Term of New York County accusing defendant of the misdemeanors of (1) official misconduct and (2) conspiracy to commit official misconduct. The defendant moved in the Appellate Division pursuant to subdivision 2 of section 149 of the Judiciary Law, to dismiss the indictment on the ground that the Special Prosecutor lacked jurisdiction to investigate or prosecute this matter since it does not involve corrupt acts by public officials relating to the enforcement of law or the administration of criminal justice, or, in the alternative, on the ground that the Grand Jury proceedings were defective since the Special Prosecutor was a person unauthorized to be in its presence. Holding that the Special Prosecutor was not a proper person before this Grand Jury, the Appellate Division dismissed the indictment and transferred the matter to the District Attorney of New York County with leave to apply for permission to submit the charges to another Grand Jury. We affirm.
The basic issue on this appeal is whether the presence of an unauthorized prosecutor before a Grand Jury is sufficiently likely to result in prejudice to the defendant that dismissal of the indictment is appropriate. We find that the crucial nature of the prosecutor's role vis-a-vis the Grand Jury, particularly in view of his discretionary authority, mandates a finding that prejudice to the defendant is likely to result from the presence of an unauthorized prosecutor before the Grand Jury.
In any matter pending before an Extraordinary Special or Trial Term, subdivision 2 of Section 149 of the Judiciary Law authorizes a defendant to move the Appellate Division to dismiss the indictment * (see People v. Sam, 49 A.D.2d 732, 372 N.Y.S.2d 659; Matter of Moritt v. Nadjari, 46 A.D.2d 784, 361 N.Y.S.2d 20) upon proper grounds under the Criminal Procedure Law. An indictment may be dismissed where the Grand Jury proceedings are defective (CPL 210.20, subd. 1, par. (c)) in that they fail "to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result" (CPL 210.35, subd. 5). Pursuant to article 190 only authorized persons may be present during Grand Jury proceedings (CPL 190.25, subd. 3).
The Special Prosecutor concedes that he lacked jurisdiction to prosecute the matter covered by the indictment because his grant of authority (Executive Order 55 (9 NYCRR 1.55)) is limited to those cases dealing with corruption relating strictly to the criminal justice process and does not embracethe judicial system in general or the civil justice system in particular (Matter of Dondi v. Jones, 40 N.Y.2d 8, 18-19, 386 N.Y.S.2d 4, 11-12, 351 N.E.2d 650, 657-658). Because the instant matter involves only the civil justice system, appellant was completely without authority to act. The Special Prosecutor, as an arm of the Attorney-General, requires specific authority to appear before the Grand Jury (see People v. Rallo, 39 N.Y.2d 217, 221-223, 383 N.Y.S.2d 271, 272-273, 347 N.E.2d 633, 635; People v. Dorsey, 176 Misc. 932, 942, 29 N.Y.S.2d 637, 647; People v. Welz, 70 Misc. 183, 128 N.Y.S. 484). Simply stated, where a prosecutor lacks the requisite authority he is not a proper person before the Grand Jury and those proceedings conducted by him before the Grand Jury are defective.
The Special Prosecutor, lacking the necessary jurisdictional authority, was clearly an unauthorized person before the Grand Jury, but he nonetheless contends that dismissal is inappropriate. Before a dismissal may be granted, a defect in the Grand Jury proceedings must operate to impair the integrity of the proceedings and potentially prejudice the defendant (CPL 210.35, subd. 5) and the appellant argues that his presence neither offended the Grand Jury's integrity nor created a possibility of prejudice to the defendant. It is also urged that before granting a dismissal of the indictment the Appellate Division should have reviewed the Grand Jury minutes to determine whether anything occurred which might have created the possibility of prejudice, and that if nothing unusual is found the motion should be denied.
In determining whether the presence of an unauthorized prosecutor may create a possibility of prejudice, it is necessary to consider the role of a prosecutor before the Grand Jury. Generally, the District Attorney is the prosecutorial officer with the responsibility to conduct all prosecutions for crimes and offenses cognizable by the courts of the county in which he serves (County Law, § 700, subd. 1). The District Attorney has broad discretion in determining when and in what manner to prosecute a suspected offender . When the alleged activity constitutes a misdemeanor, as in the case before us, he has complete discretion to determine whether available evidence should be submitted to a Grand Jury (CPL 190.55, subd. 2, par. (c)) or, perhaps, to bypass the Grand Jury and have an accusatory instrument filed. During the actual proceedings, the legal adviser of the Grand Jury is the District Attorney and legal advice from any other source is improper (CPL 190.25, subd. 6; see Matter of Hynes v. Moskowitz, 44 N.Y.2d 383, --- - ---, --- N.Y.S.2d ---, --- - ---, --- N.E.2d ----, ---- - ----). The District Attorney determines the competency of witnesses to testify (CPL 190.30, subd. 5), and must instruct the jury on the legal significance of the evidence (CPL 190.30, subd. 6). He, in effect, determines what witnesses to present to that body and who should be excluded. These duties and powers, bestowed upon the ...
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