Summary
In Leone v. Fanelli (194 Misc. 826), an article 78 proceeding was instituted to compel the District Attorney to prosecute indictments which had been handed down against third parties.
Summary of this case from Matter of Hassan v. Magistrates' CourtOpinion
April 9, 1949.
Edward H. Petruzzi for petitioner.
George M. Fanelli, District Attorney ( George Burchell of counsel), respondent in person.
The application for an order to compel the respondent as District Attorney of the County of Westchester to fully and faithfully perform his duties as District Attorney and forthwith and diligently to prosecute the indictments against one Frank Smith and John Smith alleging felonious and malicious mischief, and felonious assault, must be denied. The office of District Attorney is a constitutional office (N.Y. Const., art. IX, § 5) but apparently his powers and duties are set forth in no single statute or single place ( People v. Neff, 191 N.Y. 286, 288; Matter of Turecamo Contr. Co., 260 A.D. 253, 257), and although until the adoption of the County Law in 1892 (L. 1892, ch. 686) the Revised Statutes required him to attend the Courts of Oyser and Terminer and Jail Delivery, and General Sessions in his county and conduct all prosecutions for crimes and offenses in those courts, the statute was repealed by the County Law of 1892 and nothing substituted therefor. County Law (§ 200) however, indicates quite clearly that it is his duty to prosecute crimes within the county for which he is elected.
This duty, although not judicial and purely executive, is one calling for the exercise of discretion and the pursuit of some fixed enforcement policy which it is not the function of the courts to supervise. A specific act which the District Attorney might by law be required to perform involving no special exercise of discretion and necessary for the satisfaction of some personal right of a petitioner could, undoubtedly, be required. But the general duty to prosecute all crimes or the special duty to prosecute a particular crime may not be required or supervised.
Submit order.