People v. Gilmour

• Decision Date: 02 May 2002
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THOMAS GILMOUR, Respondent.
• Court: New York Court of Appeals Court of Appeals

98 N.Y.2d 126

773 N.E.2d 479

746 N.Y.S.2d 114

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. THOMAS GILMOUR, Respondent.

Court of Appeals of the State of New York.

Argued March 19, 2002.

Decided May 2, 2002.

Eliot Spitzer, Attorney General, New York City (Robin A. Forshaw, Caitlin J. Halligan and Michael S. Belohlavek of counsel), for appellant.

Michelle Fox, Brooklyn, and Andrew C. Fine for respondent.

Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY and GRAFFEO concur.

OPINION OF THE COURT

ROSENBLATT, J.

On this appeal, we must determine when the Attorney General may undertake prosecution of a criminal case pursuant to Executive Law § 63 (3). Most criminal prosecutions are conducted by District Attorneys, who are authorized to prosecute "crimes and offenses cognizable by the courts of the count[ies]" in which they serve (County Law § 700 [1]). The District Attorney's prosecutorial power, however, is not exclusive. The Legislature has authorized the Attorney General to prosecute crimes upon the request of certain officials, including "the head of any * * * department, authority, division or agency of the state" (Executive Law § 63 [3] [emphasis added]). In the case before us, the request to prosecute was made not by the department head but by the department's counsel. The Appellate Division concluded that defendant's resulting conviction was a nullity because it was not clear that the head of the department (the Superintendent of State Police) authorized the request or even knew of it. We hold that the prosecutorial request did not conform to Executive Law § 63 (3), and therefore affirm the order of the Appellate Division reversing defendant's conviction and dismissing the indictment.

I.

Based on a tip from defendant's former girlfriend, the Attorney General's office and the State Police conducted an investigation that gave rise to a search warrant for defendant's home. Executing that warrant, investigators found 44 images of child pornography on defendant's computer.¹

Glenn Valle, Counsel to the State Police, sent a letter to then-Attorney General Dennis Vacco, asking him to prosecute the case. Valle wrote on State Police stationery, with his name alone printed in the upper-left corner. The letter reads in its entirety as follows:

"Dear Mr. Vacco:

"Members of the New York State Police, working with investigators assigned to your Organized Crime Task force and Criminal Prosecutions Bureau, have developed information that Thomas J. Gilmour may be using the Internet to promote the use of a child in a sexual performance in violation of Penal Law Article 263. This conduct occurred within the State of New York.

"Pursuant to Executive Law, Section 63(3), we request that you review the facts of the investigation and take whatever prosecutorial action you deem appropriate.

"Thank you for your cooperation.

"Very truly yours /s/ Glenn Valle Glenn Valle Counsel"

After receiving the letter, the Attorney General's office presented the matter to a Grand Jury, which indicted defendant for possessing a sexual performance by a child (see Penal Law § 263.16). Defendant moved to dismiss the indictment, claiming that the letter did not comply with Executive Law § 63 (3), in that the request to prosecute was not made by the head of the State Police. Supreme Court denied the motion. Defendant was convicted following a trial at which an Assistant Attorney General represented the People. The Appellate Division reversed the conviction and dismissed the indictment, concluding that the letter did not meet the requirements of Executive Law § 63 (3) (see People v Gilmour, 284 AD2d 341 [2001]

). A Judge of this Court granted the People leave to appeal, and we now affirm.

II.

From New York's earliest history, the scope of the Attorney General's powers has involved "splitting of the prosecution with local prosecuting officers."² Today's case arises out of that division of authority, and requires us to examine the history and statutory delineation of the Attorney General's prosecutorial powers.

Prior to the War for Independence, the Attorney General of New York served the English Crown as this Colony's chief law officer.³ Through colonial times and until 1796, the Attorney General was the representative of the People in the courts, and "the only person who could conduct prosecutions for crime in their name" (Swanson, supra note 2, at 162).

In 1796, the Legislature provided for some local control over criminal prosecutions by vesting prosecutorial power in "assistant Attorneys General," who, despite their misleading title, were independent of the State Attorney General (see id. at 163-164; L 1796, ch 8). Under the enactment, an assistant Attorney General was to serve in each of the seven districts of the State (see L 1796, ch 8; 1 Chester, Legal and Judicial History of New York, at 426 [1911]), which then consisted of 22 counties.⁴ In 1801, the Legislature created the office of District Attorney, so named to reflect the district—comprising a number of counties—over which that official would exercise prosecutorial power (see L 1801, ch 146). This "district" system continued until 1818, when the Legislature provided for the appointment of a separate District Attorney for each county (see L 1818, ch 283).⁵ Some overlap existed, with the Attorney General continuing to retain a measure of prosecutorial power (see Matter of Turecamo Contr. Co., 260 App Div 253, 258 [1940] ["There was never an exclusive grant of power to the district attorneys. On the contrary, some degree of concurrent authority has been resident historically in another constitutional officer, the Attorney-General."]).

The New York State Constitution establishes the offices of Attorney General (see NY Const, art V, §§ 1, 4) and District Attorney (id. at art XIII, § 13), but does not specify or allocate the powers of the respective offices. To discern the scope of the Attorney General's prosecutorial powers, we must turn to the history of Executive Law § 63, the provision now before us.

III.

We note at the outset that since 1796 the Legislature has never accorded general prosecutorial power to the Attorney General (see People v Di Falco, 44 NY2d 482, 486 [1978] [per curiam]

).⁶ Indeed, this Court has pointed out that "the Attorney-General has no * * * general authority [to conduct prosecutions] and is `without any prosecutorial power except when specifically authorized by statute'" (People v Romero, 91 NY2d 750, 754 [1998], quoting Della Pietra v State of New York, 71 NY2d 792, 797 [1988] [emphasis in original]).⁷

In 1892, the Legislature first crafted a statute authorizing the Attorney General to prosecute at the behest of certain officials. It was a two-fold grant. First, Executive Law § 52 (2) authorized the Attorney General to prosecute specific cases when so required by the Governor or a Justice of the Supreme Court (L 1892, ch 683). In essence, this involved filling the shoes of the District Attorney in a particular case. Second, Executive Law § 52 (3) provided a broader grant by which certain officials could ask the Attorney General to prosecute "every person charged [by the requesting official] with the commission of an indictable offense in violation of the laws" that fall under the official's dominion (id. [emphasis added]). The statutory distinction between individual case prosecution (which required a request from the Governor pursuant to Executive Law § 63 [2]),⁸ and the broader prosecutorial authority (requiring a request from one of several officials pursuant to Executive Law § 63 [3]) continued until 1965. In that year, the Legislature amended Executive Law § 63 (3) so that the officials enumerated in subdivision (3) were no longer faced with the choice of asking the Attorney General to handle all of the department's criminal prosecutions or none of them. After the 1965 amendment, those officials were permitted to tap the Attorney General's prosecutorial power in specific cases (see L 1965, ch 790 [providing that the Attorney General shall "investigate the alleged commission of any indictable offense or offenses in violation of the law * * *"]).

In 1969, the Legislature again amended Executive Law § 63 (3) to allow "the head of any * * * department, authority, division or agency" to activate the Attorney General's prosecutorial powers (L 1969, ch 814 [emphasis added]), and thereby avoid continual additions to the list (see Dept of Law Mem in Support, 1969 McKinney's Session Laws of NY, at 2460 ["(B)y including all departments and agencies there will be no future need to amend the statute on a piece-meal basis to add other State agencies"]). That is how things stand today.

IV.

The evolution of Executive Law § 63 and its related provisions makes clear that the Legislature has sought to delineate meticulously the prosecutorial powers of the Attorney General. In keeping with that concern, this Court has held in an analogous context that if the Attorney General lacks power to prosecute a defendant, any resulting indictment must be dismissed (see People v Romero, 91 NY2d 750, 758 [1998]

; see also People v Fox, 253 AD2d 192, 195 [1999]).⁹

In the case before us, the People resist dismissal, arguing that Valle's status as counsel to the State Police should itself be sufficient for courts to presume that the agency head approved any request for the assistance of the Attorney General. We disagree. A request made by the counsel of a department does not satisfy the requirements of Executive Law § 63 (3) where there is no indication that the request was made at the express behest of the department head.

We note that no construction of the statute can permit a deviation from its plain meaning. Executive Law § 63 (3) authorizes only the agency "head" to request that the Attorney General prosecute a case, and we cannot interpret the statute in a way that undermines the Legislature's plainly expressed intent. If the Legislature intended...