People v. Romero

• Decision Date: 01 July 1998
• Citation: 698 N.E.2d 424,675 N.Y.S.2d 588,91 N.Y.2d 750
• Parties: , 698 N.E.2d 424, 1998 N.Y. Slip Op. 6562 The PEOPLE of the State of New York, Respondent, v. Israel ROMERO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 588

675 N.Y.S.2d 588

91 N.Y.2d 750, 698 N.E.2d 424, 1998

N.Y. Slip Op. 6562

The PEOPLE of the State of New York, Respondent, v. Israel ROMERO, Appellant.

Court of Appeals of New York.

July 1, 1998.

Michael D. Jurena, Albany, for appellant.

Dennis C. Vacco, Attorney-General, New York City (Edward D. Saslow, Barbara G. Billet, Christopher G. Quinn, Christine Duisin, Jill Gross Marks, Nancy D. Snyder, Joseph J. Hester and Rick Goodell, of counsel), for respondent.

Jonathan E. Gradess, Albany, and Alfred O'Connor for New York State Defenders Association, amicus curiae.

Richard A. Brown, District Attorney of Queens County, Kew Gardens, and Anthony J. Girese, Bronx, for New York State District Attorneys Association, amicus curiae.

OPINION OF THE COURT

TITONE, Judge.

A jury convicted defendant of the crimes of the unlawful practice of law and petit larceny. The question in this case is whether the Attorney-General had the authority under Judiciary Law § 476-a(1) to prosecute defendant for these crimes. Although section 476-a(1) directly authorizes the Attorney-General to bring an "action" against those whom he believes are engaged in the unlawful practice of law, we conclude, based on the language and legislative history of sections 476-a and 476-b, that the word "action" in the statute refers only to a civil action. Accordingly, we reverse.

I.

Defendant Israel Romero, an attorney in Honduras, applied for and was admitted by the Third Department to practice pro hac vice from December 2, 1991 to June 2, 1993 connected with a project at the State Street Presbyterian Church in Schenectady. Some two months after June 1993, defendant was approached at the church by a woman who requested his services as attorney in her divorce. Thereafter, defendant took $750 from the woman, gave her a receipt, and prepared various divorce documents that listed her, under the signature line, as a "pro se plaintiff." Defendant apparently told her when questioned that this designation was a legal term for signature, rather than an indication that she was unrepresented by an attorney. The woman came to realize what "pro se" meant after a conversation with the Saratoga County Judge's chambers and that defendant was not representing her in the divorce action even though he had taken money to be her attorney.

The Attorney-General presented the matter to the Grand Jury on November 30, 1995, which that same day indicted defendant on one count of each of three charges: offering a false instrument for filing in the first degree (a charge that was dismissed before trial); unauthorized practice of law (Judiciary Law § 478); and petit larceny (Penal Law § 155.25). Defendant moved to dismiss the indictment, contending, among other things, that the Attorney-General lacked authority under Judiciary Law § 476-a to prosecute the case. The trial court denied the motion and agreed with the Attorney-General that section 476-a provided the authority to prosecute these crimes. After a jury trial, defendant was convicted of the crimes of the unlawful practice of law and petit larceny, and sentenced.

On appeal to the Appellate Division, defendant again argued that the Attorney-General had no authority to prosecute under Judiciary Law § 476-a. The Attorney-General again countered this argument, and for the first time in the case, raised the alternative of Executive Law § 63(3) as providing the Attorney-General with prosecutorial authority. The Appellate Division adopted these alternative grounds for affirmance. It held "[a]ssuming, arguendo, that defendant is correct in maintaining that Judiciary Law § 476-a only authorizes the Attorney-General to maintain a civil action against an individual accused of the unlawful practice of law and not a criminal action * * * the Attorney-General was authorized to prosecute the subject charges under Executive Law § 63(3)" (244 A.D.2d 670, ----, 664 N.Y.S.2d 179). A Judge of this Court granted defendant leave to appeal.

II.

At the outset, we note that the Attorney-General's alternative grounds for affirmance based on Executive Law § 63(3) were not reviewable by the Appellate Division and are not reviewable here. Under CPL 470.15(1) the Appellate Division can only review errors or defects that "may have adversely affected the appellant" in the criminal court (CPL 470.15[1]; see, People v. Goodfriend, 64 N.Y.2d 695, 697-698, 485 N.Y.S.2d 519, 474 N.E.2d 1187). The applicability ofExecutive Law § 63(3), as the Attorney-General now concedes, was not ruled upon in the criminal court action from which appeal was made, and, as a result, appellant could not have been "adversely affected" by a criminal court ruling on the issue. The Appellate Division could not have reviewed the point. This Court, in turn, can review those questions of law raised or considered in the Appellate Division or those involving any error or defect in the criminal court proceedings that resulted in the criminal court judgment (see, CPL 470.35). Since the question of Executive Law § 63(3) could not have been raised in the Appellate Division, the only issue before us on this appeal is whether Judiciary Law § 476-a conferred prosecutorial authority on the Attorney-General as this issue was raised and ruled upon in the criminal court proceeding (see, People v. Goodfriend, supra, 64 N.Y.2d, at 698, 485 N.Y.S.2d 519, 474 N.E.2d 1187).

III.

Although the District Attorneys have plenary prosecutorial power in the counties where they are elected, the Attorney-General has no such general authority and is "without any prosecutorial power except when specifically authorized by statute" (Della Pietra v. State of New York, 71 N.Y.2d 792, 797, 530 N.Y.S.2d 510, 526 N.E.2d 1; see, County Law §§ 700, 927). The Attorney-General contends that the specific authorization in this case comes from Judiciary Law § 476-a, which provides that the "attorney-general may maintain an action upon his own information * * * against any person [or entity] * * * who commits any act or engages in any conduct prohibited by law as constituting the unlawful practice of law" (Judiciary Law § 476-a[1] ). Even though the statute does not explicitly authorize a criminal prosecution, the Attorney-General interprets the word "action" to encompass both a criminal and a civil action. No case, however, supports the Attorney-General's position. Those dealing with section 476-a either involved a civil action (New York Criminal & Civ. Cts. Bar Assn. v. Jacoby, 61 N.Y.2d 130, 472 N.Y.S.2d 890, 460 N.E.2d 1325) or limited section 476-a, without discussion, to a civil action (Lawrence v. Houston, 172 A.D.2d 923, 924, 567 N.Y.S.2d 962; People v. Enfeld, 136 Misc.2d 252, 253, 518 N.Y.S.2d 536). Although Judiciary Law § 485 makes the unlawful practice of law, as defined by Judiciary Law § 478, a misdemeanor, this Court has gone only so far as to note that the Attorney-General can enforce section 478 "in civil actions" under Judiciary Law § 476-a (El Gemayel v. Seaman, 72 N.Y.2d 701, 706, 536 N.Y.S.2d 406, 533 N.E.2d 245).

Having no case authority, the Attorney-General relies primarily on the use of the word "action" in the statute. Although in general legal usage, as the Attorney-General argues, the word "action" can imply a criminal as well as a civil action, the specific use of that word in Judiciary Law § 476-a(1) does not appear to connote more than a civil action based on the statutory provisions that accompany it. For instance, Judiciary Law § 476-a(2) provides: "Such an action may also be maintained by a bar association organized and existing under the laws of the state." To read the word "action" in section 476-a(1) to encompass a criminal action would mean that a Bar association could prosecute crimes, and, as a corollary matter, could also convene Grand Juries and issue subpoenas. Such a conclusion would be contrary to the fundamental principle that the power to prosecute crimes is traditionally a power of the State as sovereign (see, Della Pietra v. State of New York, supra, 71 N.Y.2d, at 796-797, 530 N.Y.S.2d 510, 526 N.E.2d 1). In view of this principle, we are unwilling to impute to the Legislature an intent to award such authority to a private entity such as a Bar association without more explicit reference.

Nor can the Attorney-General interpret "action" in section 476-a(1) to mean both civil and criminal actions, while at the same time, define the "action" in section 476-a(2), which applies to Bar associations, to mean only civil actions. Section 476-a(2) states that "[s]uch an action" may be brought by the appropriate Bar association. The use of "such" clearly refers to the same action that the Attorney-General can bring in section 476-a(1). Moreover, section 476-a(2) indicates that the Bar association can bring the action in the place of the Attorney-General if he fails or refuses to act, lending more credence to the conclusion that the "actions" in both subdivisions are the same (see, McKinney's Cons. Laws of N.Y., Book 1, Statutes § 236, at 401).

An interpretation limiting section 476-a to civil actions is further buttressed by the fact that Judiciary Law § 476-b mandates a traditional civil remedy for successful action under section 476-a. Section 476-b provides: "In an action brought as prescribed in section four hundred seventy-six-a, the final judgment in favor of the plaintiff shall perpetually restrain the defendant from the commission or continuance of the act complained of." Notably, the Attorney-General does not address this point, but a review of the law of injunctions leads to the conclusion that the injunction in section 476-b is not a penalty for a criminal conviction, but instead is the result of civil action additional to any criminal sanctions (see generally, People ex rel. Bennett v. Laman, 277 N.Y. 368, 14 N.E.2d 439).

Traditionally, because equity had no criminal jurisdiction, the equitable remedy of an injunction would not be used to enforce the...