People v. Mazzeo

• Decision Date: 25 February 2021
• Docket Number: 111003
• Citation: 191 A.D.3d 1171,143 N.Y.S.3d 427
• Parties: The PEOPLE of the State of New York, Respondent, v. David A. MAZZEO, Appellant.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 1171
143 N.Y.S.3d 427

The PEOPLE of the State of New York, Respondent,
v.
David A. MAZZEO, Appellant.

111003

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 13, 2021
Decided and Entered: February 25, 2021

143 N.Y.S.3d 428

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered July 7, 2017, which revoked defendant's probation and imposed a sentence of imprisonment.

In April 2013, upon his plea of guilty to the crime of grand larceny in the third degree, defendant was sentenced to a five-year term of probation and ordered to pay restitution to the victim of his crime. In May 2017, after a nine-count indictment was handed up against him, defendant was charged with violating the terms of his probation by committing additional crimes, as well as failing to make restitution payments over a period of several months. Following a hearing, County Court found that defendant knowingly and willfully violated the terms of his probation and, consequently, revoked defendant's probation and sentenced him to a prison term of 2 to 7 years. Defendant appeals, and we affirm.

To begin, we find no merit to defendant's contention that the Assistant Attorney General who assumed a prosecutorial role in this proceeding was without authority to do so. Although "the Attorney–General's prosecutorial authority is strictly limited to the specific statutory grants of such authority" ( Matter of Haggerty v. Himelein, 89 N.Y.2d 431, 435, 654 N.Y.S.2d 705, 677 N.E.2d 276 [1997] ), a district attorney may enlist the help of an assistant attorney general in prosecuting a case by appointing him or her as an assistant district attorney, provided that such appointment is made in accordance with the dictates of County Law § 702 and that the district attorney retains "ultimate prosecutorial authority" over the matter ( id. at 436, 654 N.Y.S.2d 705, 677 N.E.2d 276 ; see People v. Glanda, 5 A.D.3d 945, 948, 774 N.Y.S.2d 576 [2004], lvs denied 3 N.Y.3d 640, 674, 782 N.Y.S.2d 412, 816 N.E.2d 202 [2004], cert denied 543 U.S. 1093, 125 S.Ct. 973, 160 L.Ed.2d 906 [2005] ; People v. Anderson, 237 A.D.2d 989, 989, 655 N.Y.S.2d 220 [1997] ). Pursuant to County Law § 702, the appointment must be filed and recorded in the county clerk's office and the appointed assistant district attorney must take the oath of office and "perform such duties pertaining to the office as may be...