In the Matter of Working Families Party, Appellant,v.Fern A. Fisher,, et al., Respondents.BriefN.Y.April 29, 2014To Be Argued By: Lee Alan Adlerstein Time Requested: 10 minutes APL 2013-00322 Appellate Division - Second Department Docket No. 2013-02052 qcourt of ~pta15 of the ~tatt of llttu ~ork In the Matter of WORKING FAMILIES PARTY, Petitioner-Appellant, - against- FERN A. FISHER, et al., Respondents-Respondents. BRIEF FOR RESPONDENT HON. FERN A. FISHER LEE ALAN ADLERSTEIN ANTONIO GAL V AO Of Counsel JOHN W. McCONNELL Counsel New York State Office of Court Administration 25 Beaver Street, 11 th Floor New York, New York 10004 Tel: (212) 428-2150 Fax: (212) 428-2155 Attorney for Respondent - Respondent Hon. Fern A. Fisher Dated Completed: February 3 ,2014 TABLE OF CONTENTS Table of Authorities ............................................... 111 Preliminary Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Questions Presented ................................................. 4 Statement of the Case ............................................... 4 (a) Request for Appointment of the Special Prosecutor ............... 4 (b) Proceedings in the Appellate Division .......................... 5 (c) The Appellate Division's Decision and Judgment ................ 6 POINT I .......................................................... 8 THE APPELLATE DIVISION WAS CORRECT IN RULING THAT ARTICLE 78 RELIEF IS NOT AVAILABLE TO DISTURB THE SUBPOENAS BECAUSE THEIR ISSUANCE WAS PART OF SDA ADLER'S EXECUTIVE INVESTIGATIVE DUTIES ........ 8 POINT II ........................................................ 12 BY ANY STANDARD, DA DONOVAN'S SELF- DISQUALIFICATION WAS APPROPRIATE, AND PROVIDES NO GROUNDS -- AND CERTAINL Y NO CLEAR LEGAL RIGHT -- FOR VACATUR OF THE SDA APPOINTMENT ORDER ............... 12 POINT III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 THE JANUARY 2012 ORDER FULLY COMPLIED WITH COUNTY LAW §701. ........................ 14 (a) Judge Fisher Properly Issued the Order as a Superior Court Judge of Richmond County ............................ 14 (b) Judge Fisher's Order Stated a Sufficiently Particular Case for Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CONCLUSION ................................................... 21 ii TABLE OF AUTHORITIES Cases Board of Supervisors of Montgomety County, Matter of v. Aulisi, 62 A.D.2d 644 (1978), affd, 46 N.Y.2d 731 (1978) ................. 19 Brunswick Hosp. Ctr., Matter ofv. Hynes, 52 N.Y.2d 333 (1981) .......................................... 8 Kagen v. Kagen, 21 N.Y.2d 532 (1968) ......................................... 16 Lee, Matter ofv. County Ct. of Erie County, 27 N.Y.2d 432 (1971), cert denied 404 U.S. 823 (1971) .............. 11 McGinley, Matter ofv. Hynes, 51 N.Y.2d 116 (1980), cert denied 450 U.S. 918 (1981) .......... 7, 8, 19 McNamara, Matter ofv. Tormey, 42 A.D.3d 971 (2007) ........................................ 13 Misicki v. Caradonna, 12 N.Y.3d 511 (2009) ......................................... 18 Molea, Matter ofv. Marasco, 64 N.Y.2d 718 (1984) ......................................... 11 Morgenthau, Matter ofv. Cooke, 56 N.Y.2d 24 (1982) .......................................... 18 Nicholson, Matter ofv. State Commn. on Jud. Conduct, 50 N.Y.2d 597 (1980) ........................................ 11 People v. Adams, 20 N.Y.3d 608 (2013) ...................................... 2, 13 111 People v. Anonymous, 126 Misc. 2d 673 (Crim. Ct. N.Y.C. 1984) ........................ 12 People v. Correa, 15 N.Y.3d. 213 (2010) ........................................ 16 People v. Darling, 50 A.D.2d 1038 (1975) ....................................... 16 People v. Leahy, 72 N.Y.2d 510 (1988) ......................................... 19 People v Schrager, 74 Misc.2d 833, 834 (Sup. Ct. Qns. Co. 1973) ..................... 12 People v. Zimmer, 51 N.Y.2d 390 (1980) ......................................... 13 Pirro, Matter of v. Angiollilo, 89 N.Y.2d 351 (1996) ........................................ 10 Rice, Matter of, 31 Misc.3d 838 (Sup. Ct. Nassau Cnty. 2011) .............. 19 Rush, Matter ofv. Mordue, 68N.Y.2d348,354(1986) ..................................... 11 Rushmore, Matter of v. Lipson, 45 Misc.2d 487 (Sup. Ct. Nassau Cnty. 1964) ...................... 8 Schumer, Matter ofv. Holtzman, 60 NY2d 46 (1983) ........................................... 9 Schumer, Matter ofv. Holtzman, 94 A.D.2d 516 (1983), affd as modified, 60 N.Y.2d 46 (1983) .... 7, 9, 13 IV Soares, Matter of v. Herrick, 20N.Y.3d 139 (2012) ......................................... 7,13 Suffolk County Legislature, Matter of v. Mullen, 211 A.D.2d 736 (1995), Iv. denied 85 N.Y.2d 803 (1995) ........ 7, 8, 18 Town of Huntington v. New York State Div. Of Human Rights, 82 N.Y.2d 783 (1993) ........................................ 13 Constitution N.Y.S. Constitution Art. VI, § 7(a) ................................... 16 N.Y.S. Constitution Art. VI, § 20(a) .................................. 16 N.Y.S. Constitution Art. VI, § 28(b) .................................. 14 Statutes CountyLaw§701 ......................................... 1,4,14,17 C.P .L.R. § 5602( a) .................................................. 4 CPLR 21 7 ( 1 ) ...................................................... 6 Judiciary Law § 212( 1 )(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Judiciary Law § 212(1)(s) ........................................... 15 Judiciary Law § 212(2)(c) ........................................... 15 Regulations N.Y. Compo Codes R. & Regs. tit. 22, § 81.1(a) .......................... 15 v Page N.Y. Compo Codes R. & Regs. tit. 22, § S1.1(b)(5) ....................... 15 N. Y. Compo Codes R. & Regs. tit. 22, § S1.1 (b )( 6) ....................... 15 N.Y. Compo Codes R. & Regs. tit. 22, § S1.1(b)(S) ....................... 15 N.Y. Compo Codes R. & Regs. tit. 22, § 200.1(b)(I) ...................... 15 N.Y. Compo Codes R. & Regs. tit. 22, § 200.2(b) ........................ 15 N.Y. Compo Codes R. & R~gs. tit. 22, § 200.15 ........................... 4 VI Preliminaty Statement In this Article 78 proceeding, seeking vacatur of an order appointing a special district attorney under County Law § 701 and the quashing of investigatory subpoenas served by that appointee, petitioner-appellant Working Families Party ("Petitioner;" "WFP") appeals by leave of this Court (R. v-viY from a unanimous Decision and Judgment of the Appellate Division, Second Department, entered August 7, 2013 (R. 184-186), which inter alia: (1) held that the special district attorney was exercising executive, rather than quasi-judicial, authority in issuing subpoenas during the investigative stage of his duties, and that Article 78 relief in the nature of prohibition was not available to review that executive action; and (2) rejected petitioner's claims that the appointment was procedurally flawed. * * * This appeal raises two issues relating to the general process of appointment of a special district attorney ("SDA") pursuant to County Law § 701 upon a district attorney's claim of conflict: (1) the availability of a ~it of prohibition to challenge the early investigatory activities of an appointed SDA; and (2) the appropriate standard for review of the district attorney's ("DA") self- disqualification. In addition, petitioner has presented two issues relating to the I Numbers in parentheses preceded by "R." refer to pages in the Record on Appeal. "WFP Br." refers to pages in the main brief of petitioner-appellant WFP. specific order of appointment of an SDA by respondent Justice (and Deputy Chief Administrative Judge) Fisher following the confidential application by respondent Richmond County District Attorney Daniel Donovan in this case: (a) whether, as a matter of fact, Justice Fisher satisfactorily demonstrated that she had assigned herself to Richmond County Supreme Court prior to issuing the order; and (b) whether, as a matter of law, that order was sufficiently "particular" in its scope. The Appellate Division properly reviewed each of these issues, and its judgment should be affirmed in all respects. Inasmuch as the SDA' s investigation pursuant to his appointment is in its early stage -- and will be open to court review at such time, if ever, that criminal process commences -- the Appellate Division correctly rejected WFP's premature collateral attack upon that investigation. The distinction between executive and quasi-judicial stages of a criminal proceeding cited by that court is well-established in legal precedent, and is essential to prosecutorial investigation by an SDA. Without it, investigative targets would have broad opportunity to bring litigation designed to disrupt the orderly administration of the criminal justice process prior to indictment. Furthermore, judged by the standards recently set forth by this Court in People v. Adams, 20 N.Y.3d 608 (2013), DA Donovan's application provided ample justification for his self-disqualification in this matter, and fully warranted Judge Fisher's appointment of an SDA. We submit herein that a DA's finding of -2- conflict and application for substitution by an SDA may be entitled to substantial deference by a reviewing court under a standard more generous than that described in Adams (which addressed a defendant's application to remove a prosecutor). However, under any recognized standard, the appointment of an SDA was appropriate in this case, and petitioner therefore cannot show a clear legal right to the relief it requests - a critical requirement in an Article 78 proceeding in the nature of prohibition. Finally, the order of SDA appointment was correct in all other respects. Judge Fisher's self-assignment to Richmond County Supreme Court was well within the scope of her constitutional and statutory powers as deputy chief administrative judge and is clearly set forth in the record. The SDA appointment order sets forth the place, timing, and general nature of the alleged misconduct, together with the statutory provisions allegedly violated; consequently, either standing alone or read in conjunction with DA Donovan's application, it was sufficiently particular in scope and is otherwise unimpeachable. For these reasons, we respectfully submit that the Decision and Judgment of the Appellate Division should be affirmed in all respects. -3- Questions Presented 1. Did the Appellate Division correctly determine that Article 78 relief in the nature of prohibition is not available where, as here, an SDA was exercising executive rather than quasi-judicial governmental authority in issuing the subpoenas during the investigative stage of his duties? 2. Did the Appellate Division correctly reject WFP's claim that DA Donovan had failed to demonstrate sufficient grounds for self-disqualification pursuant to County Law § 701? 3. Did the Appellate Division correctly reject WFP's arguments that the SDA appointment was defective because (a) Justice Fisher had not appointed herself to preside in Richmond County; or (b) the appointment order failed to delineate a particular case for the SDA to pursue? Jurisdiction Having granted leave to appeal by Order dated November 19, 2013 (R. v.), this Court has jurisdiction pursuant to C.P.L.R. § 5602(a). Statement of the Case (a) Request for Appointment of the Special Prosecutor In February 2010, the Richmond County District Attorney's Office submitted a confidential ex parte application to Deputy Chief Administrative Judge Fern A. Fisher pursuant to County Law § 701 and 22 NYCRR § 200.15, -4- seeking appointment of an SDA in Richmond County Supreme Court for the purpose of investigating possible election law violations by WFP (R. 86). Assigning herself temporarily to the Richmond County Supreme Court, Judge Fisher reviewed the application, determined that the claim of conflict was meritorious, and commenced the search for an appropriate appointee. Following a lengthy search, on January 12, 2012, she granted the application and appointed as SDA Roger Bennet Adler, a former prosecutor and highly experienced practitioner (R.96). As requested in the application, the January 2012 Order directed that the application papers remain confidential until further order of the court (R. 85-88). (b) Proceedings in the Appellate Division On or about January 31,2013, SDA Adler issued subpoenas upon various persons, including WFP's treasurer, secretary, and a vendor (Citizen Action of New York) (R. 36-44). WFP thereafter commenced this proceeding for a writ of prohibition before the Appellate Division, Second Department, claiming that: (1) DA Donovan had failed to demonstrate actual prejudice necessitating appointment of an SDA; (2) the January 2012 Order suffered from several substantive and procedural flaws; and (3) the SDA's subpoenas were overbroad (R. 5-26). It sought vacatur of the January 2012 Order, quashing of subpoenas and the unsealing ofDA Donovan's confidential application (R. 3). -5- In response, appellees argued that the extraordinary remedy of prohibition was not available to oppose the early investigative activities of SDA Adler, which were executive in nature, and that more appropriate means of challenging the subpoenas were available to WFP. Appellees further argued that an "actual prejudice" standard did not apply to SDA appointments as WFP contended; that Judge Fisher had authority to issue the appointment order; and that the order sufficiently described what was to be investigated (R. 62-81, 108-157). Appellees also argued that WFP's petition was time-barred under the four month statute of limitations for Article 78 proceedings under CPLR 217(1) (R. 73-75, 113-114). (c) The Appellate Division's Decision and Judgment Following extensive briefing and argument, the Appellate Division denied the petition in its August 2013 Decision and Judgment (R. 184-186). The Court commenced its analysis with a review of the well-established principles governing Article 78 relief in the nature of prohibition: that it will not lie to correct procedural or substantive errors of law, "may be obtained only when a clear legal right of a petitioner is threatened by a body or officer acting in a judicial or quasi judicial capacity without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers in a proceeding of which it has jurisdiction," and that, even where prohibition is available, it "is not mandatory, but may issue in the sound discretion of the court." Id. -6- Reviewing the facts at bar, the Court concluded that prohibition did not lie to review the acts of the SDA at this stage of the investigation: Prohibition is an available remedy to void the improper appointment of a Special District Attorney pursuant to County Law § 701 when the Special District Attorney is performing the quasi-judicial act of representing the State in its efforts to bring individuals accused of crimes to justice (see Matter of Soares v. Herrick, 20 NY3d at 145; Matter of Schumer v. Holtzman, 60 NY2d at 54). However, it is not an available remedy when the Special District Attorney is performing the purely investigative function of investigating "suspicious circumstances" with a view toward determining whether a crime has been committed, since, in such circumstances, his or her acts are to be regarded as executive in nature (Matter of McGinley v. Hynes, 51 NY2d 116, 124 cert denied 450 US 918; see Matter of Suffolk County Legislature v. Mullen, 211 AD2d 736, 737). Here, the WFP failed to establish that Special District Attorney Adler was performing a quasi-judicial act. Accordingly, prohibition does not lie. (R. 184-186). The court also rejected as "without merit" petitioner's remaining arguments and the claims of the petition (R. 186).2 By Order dated November 19, 2013, this Court granted WFP's motion for leave to appeal (R. v.). 2 The Appellate Division rejected appellee's statute of limitations defense (R. 185); that portion of its holding is not at issue on this appeal. -7- POINT I THE APPELLATE DIVISION WAS CORRECT IN RULING THAT ARTICLE 78 RELIEF IS NOT AVAILABLE TO DISTURB THE SUBPOENAS BECAUSE THEIR ISSUANCE WAS PART OF SDA ADLER'S EXECUTIVE INVESTIGATIVE DUTIES. The Appellate Division correctly concluded that Article 78 relief in the nature of prohibition is not available to review SDA Adler's activities. This Court and others have held that a "prosecutor's acts are to be regarded as 'executive' in nature when ... a purely investigative function is involved, and consequently, such acts cannot legitimately be the object of a proceeding in the nature of a writ of prohibition." Matter of Suffolk County Legislature v. Mullen, 211 A.D.2d 736, 737 (2d Dept. 1995), citing Matter of McGinley v. Hynes, 51 N.Y.2d 116, 123-24 (1980) (rejecting challenge to jurisdiction of special prosecutor). A challenge to the issuance of grand jury subpoenas by a DA - Special or otherwise - must follow a different procedural course: "A motion to quash or vacate, of course, is the proper and exclusive vehicle to challenge the validity of a subpoena or the jurisdiction of the issuing authority." Matter of Brunswick Hosp. Ctr. v. Hynes, 52 N.Y.2d 333, 339 (1981); see also Matter of Rushmore v. Lipson, 45 Misc.2d 487 (Sup. Ct. Nassau Cnty. 1964) (Article 78 relief not appropriate to challenge subpoena on basis that investigation is exceeding scope; proper mechanism to challenge is motion to modify or quash subpoena). -8- WFP's contrary position is meritless. Its reliance upon Matter of Schumer v. Holtzman, 94 A.D.2d 516 (2d Dept. 1983), affd as modified, 60 N.Y.2d 46 (1983) is unavailing. Schumer addressed a "most unusual and unique" situation- in which an SDA was appointed not by the court, but rather by another conflicted prosecutor acting without legal authority - and was predicated on the proposition that remedies apart from prohibition were "inadequate." 94 A.D.2d at 524. The matter at bar presents no such unusual circumstance: here, a court has acted pursuant to an application filed under statute and court rule; the appointed SDA has followed usual legal process in the issuance of investigatory subpoenas. Consequently, the case fits squarely within the principles set out by the Appellate Division. Further, this Court in Schumer noted that application by the DA there to a court for appointment of a special prosecutor continued to be available as the proper means to address her disqualification. 60 N.Y.2d at 56. WFP likewise errs in its claim that the Appellate Division took the "wrong road" in focusing on SDA Adler's actions rather than Justice Fisher's order (Brief pp. 13-15). In fact, the Appellate Division took that road at WFP's urging. The record reveals that WFP showcased an application for "quashing the subpoenas" (R. 3), a challenge on the basis of over-breadth (R. 22-23), and invoked in its reply brief to the Appellate Division the timing of the subpoenas as the critical marker -9- of "harm" by which to trigger running of the limitations period.3 Thus, WFP itself invited the Appellate Division to view the proceeding as focusing on SDA Adler's exercise of authority and not solely on Judge Fisher's order. Under these circumstances, it is unsurprising that the Court's opinion focused upon the SDA's subpoenas. However, the Court made abundantly clear that it had considered and rejected all ofWFP's arguments for relief through prohibition. WFP's Article 78 proceeding does not lie as a threshold matter on the further ground - consistent with the Appellate Division's findings - that it has not shown a "clear legal right" to the relief being sought. See Matter of Pirro v. Angiollilo, 89 N.Y.2d 351, 355-56 (1996) (petitioner's clear legal right to relief is critical to whether extraordinary writ of prohibition lies). As addressed in Point II and Appellee Donovan's Brief below, WFP's claim that the "actual prejudice" standard should have governed DA Donovan's application to appoint a special prosecutor is not supported in the law. 3 That brief noted, inter alia (R. 167): The bottom line is that it was not until January 31, 2013 that Special District Attorney Adler issued grand jury subpoenas to the Treasurer and Assistant Secretary of the Working Families Party. It was at that point that the Order had an impact upon the Working Families Party, turning it into an aggrieved party and triggering the four- month limitations period. The Petition was filed less than a month later ... and is therefore timely. -10- Even assuming arguendo that WFP could satisfy the above threshold requirements for a writ of prohibition, the writ does not issue as of right but rather is a discretionary remedy available upon consideration of additional factors, such as the gravity of the harm sought to be prohibited, and the availability and efficacy of other remedies. See Matter of Rush v. Mordue, 68 N.Y.2d 348, 354 (1986). Merely being the target of an investigation does not constitute the degree or gravity of harm that courts have been concerned to prohibit. Instead, as this Court has held when finding harms of gravity, the focus is on jurisdictional violations that implicate constitutional rights. See Nicholson v. State Commn. on Jud. Conduct, 50 N.Y.2d 597 (1980) (potential First Amendment violation in investigation of judge's campaign); Lee v. County Ct. of Erie County, 27 N.Y.2d 432 (1971) (striking of insanity plea when defendant refused to consent to mental examination on self-incrimination grounds). Further, the existence of an adequate alternative remedy, such as an appeal from conviction, is an important and generally decisive factor in denying a writ of prohibition. See Matter of Molea v. Marasco, 64 N.Y.2d 718, 720 (1984) (prohibition denied where DA could appeal from dismissal of indictment). Here, WFP has not only the right and opportunity to appeal from any eventual conviction but also the opportunity to move to quash the subpoenas to which it objects - making this a particularly inappropriate case to permit a writ of prohibition as a matter of discretion. -11- POINT II BY ANY STANDARD, DADONOVAN'S SELF- DISQUALIFICATION WAS APPROPRIATE, AND PROVIDES NO GROUNDS -- AND CERTAINLY NO CLEAR LEGAL RIGHT -- FOR VACATUR OF THE SDA APPOINTMENT ORDER. WFP argues incorrectly that the standard for appointing a special prosecutor where aDA recuses himself is the existence of actual prejudice based on a demonstrated conflict of interest. While that standard generally applies when a defendant seeks to remove a DA over his objection, Appellee Donovan has shown that a different, more flexible standard applies where it is the DA who seeks his own disqualification. See People v. Schrager 74 Misc.2d 833, 834 (Sup. Ct. Qns. Co. 1973) (good faith application containing reasonable grounds for DA's belief that he is disqualified). Indeed, the standard recognized by New York case law emphasizes that a DA's decision to disqualify himself is one involving the exercise of his or her sole discretion. See People v. Anonymous, 126 Misc. 2d 673, 677 (Crim. Ct. N.Y. Co. 1984). In any event, even in the context ofa defendant's motion to remove aDA, this Court has long set a flexible standard for courts to apply. The standard has been variously expressed as focusing upon a number of factors: "reasonable potential for prejudice;" "impression;" "appearance" made by "guardian [of] -12- public trust;" "appearance ... such as to discourage public confidence in our government and the system of law to which it is dedicated." People v. Zimmer, 51 N.Y.2d 390,395-96 (1980); see also People v. Adams, 20 N.Y.3d 608, 612 (2013) (appearance of impropriety). To the extent that WFP relies on more constrictive language and criteria as contained in Schumer v. Holtzman, supra, that construct contradicts the broader manner in which the test has been expressed by this Court. At a minimum, the standard for Judge Fisher's determination ofDA Donovan's application was sufficiently flexible as to preclude WFP from demonstrating a "clear legal right" violated by her ruling, as required for Article 78 relief. See Matter of Soares v. Herrick, 20 N.Y.3d 139, 145 (2012).4 Based on this law and background, Judge Fisher did not proceed in the absence of or excess of jurisdiction, or in violation of a clear right, mandating Article 78 relief. Matter of Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d 783, 785 (1993) (prohibition is an extraordinary remedy which should be granted in sound discretion of courts below in applying the prescribed standard); Matter of McNamara v. Tormey, 42 A.D.3d 971 (4th Dept. 2007) (absence or excess of jurisdiction and violation of clear right needed for Article 78 reliet). 4 Sharply at odds with its current claim that leadership of the investigation by DA Donovan best serves the public's interest is WFP's contention, elsewhere in this litigation, that the district attorney acted in a manner designed to "unfairly tarnish" its reputation (R.74 n.3). -13- POINT III THE JANUARY 2012 ORDER FULLY COMPLIED WITH COUNTY LAW § 701. WFP's claim that the January 2012 Order "conflicts with the additional requirements established by County Law § 701" is meritless, and was rightly rejected by the Appellate Division. On this appeal, that argument takes two forms: (I) that Justice Fisher did not sit as a Richmond County superior court judge when issuing the order (WFP Br. pp. 39-42); and (2) that the order itself was insufficiently particular in its effect (WFP Br. pp. 42-45). We will address each in tum. (a) Judge Fisher Properly Issued the Order as a Superior Court Judge of Richmond County Justice Fisher's broad authority, as Deputy Chief Administrative Judge, to assign herself to a special term of the Richmond County Supreme Court is well- established in constitution, statute and rule. The New York State Constitution has vested broad responsibility for supervision of the administration and operation of the Unified Court System with the Chief Administrator of the Courts, acting on behalf of the Chief Judge. N.Y. Const. Art. VI, § 28{b) {"chief administrator, on behalf of the chief judge, shall supervise the administration and operation of the unified court system," and "shall have such powers and duties as shall be -14- delegated to him by the chief judge and such additional powers and duties as may be provided by law"). The statutory powers of the Chief Administrative Judge include the authority to "[e]stablish an administrative office for the courts and appoint and remove such deputies, assistants, counsel and employees as he may deem necessary" (Jud L. § 212[1][b]); "[d]elegate to any deputy, assistant, court or administrative judge, administrative functions, powers and duties possessed by him" (Jud. L. § 212[1][s]); and "[t]emporarily assign judges and justices of the unified court system, in accordance with the provisions of section twenty of article six of the constitution" (Jud. L. § 212[2][c]). The Chief Judge has expressly delegated to the Chief Administrator the power to designate "deputy chief administrators for the courts within and outside the City of New York" (22 NYCRR §81.1[a]), and has vested those deputies with the power to "temporarily assign judges and justices within and between judicial districts, except certificated judges and justices" (22 NYCRR §81.1 [b ][5]), to "issue directives and orders necessary to implement [her] powers and duties" (22 NYCRR §81.1[b][6]); and to "do all other things appropriate to exercise their aforesaid functions, powers and duties" (22 NYCRR §81.1 [b] [8]). See also 22 NYCRR §200.2(b) (Chief Administrator may establish parts of criminal court from time to time); §200.1 (b)( 1) ("Chief Administrator" includes the designee of the Chief Administrator). -15- Pursuant to NYS Const. Art. VI, § 20(a), "[a] justice of the supreme court may perform the duties of office or hold court in any county and may be temporarily assigned to the supreme court in any judicial district or to the court of claims." Within the City of New York, the Supreme Court is a "superior criminal court" for purposes of County Law § 701. See, ~ People v. Correa, 15 N.Y.3d. 213,229 (2010) ("[t]he CPL divides New York courts into two categories: superior courts (which include Supreme Court and County Court) and local criminal courts (which include city courts, town courts, district courts and ... the New York City Criminal Court,,).5 Pursuant to these delegations of authority, and acting in her capacity as Deputy Chief Administrative Judge for the Courts within the City of New York, Judge Fisher has ample power to assign herself temporarily to a part in the Supreme Court of any county within the City, as the needs of the court system requIre. 5 The New York Constitution grants the Supreme Court "general original jurisdiction" over criminal and civil cases. (NY Const. Art. VI, §7(a)), and subject to certain limits has invested Supreme Court with full jurisdiction over all criminal matters. See Kagen v. Kagen, 21 N.Y.2d 532, 537 (1968) ("Supreme Court is a court of original, unlimited and unqualified jurisdiction"). As this Court noted in People v. Correa, 15 N.Y.3d 213,228 (2010), subject to certain limitations not relevant to the matter at bar, the Constitution vests Supreme Court "with the power to hear any case that any other court in the [Unified Court System] could hear, which is why we refer to Supreme Court as possessing both general and concurrent jurisdiction over all causes of action -- hence the designation 'Supreme' Court." See also, People v. Darling, 50 A.D.2d 1038 (3d Dept. 1975) (describing broad jurisdiction of Supreme Court). -16- In this case, Judge Fisher exercised that authority, assigned herself to a criminal term of Richmond County Supreme Court, and properly reviewed DA Donovan's confidential application in camera. Determining that an SDA was appropriate, she appointed SDA Adler by means of the January 2012 Order- which plainly cited its jurisdictional origin as the Supreme Court, County of Richmond. As she later described her assignment (R. 86): 7. Exercising my authority to assign and reassign judges within the City of New York, I thereafter acted as a designee to a criminal term of the Supreme Court, Richmond County in order to consider the application's merits. WFP's claim that this appointment was inconsistent with the requirements of County Law § 701 is simply incorrect. The claim that Judge Fisher's affidavit commits a "glaring omission" in failing to demonstrate that she designated herself a superior criminal court judge is twice mistaken: as an elected Supreme Court Justice, Judge Fisher was a superior criminal court judge per se; and her affidavit clearly states that she acted as a Justice of Richmond County Supreme Court pursuant to an exercise of her authority to assign and reassign judges within the City of New York (R. 86) - an assignment plainly reflected in the order itself. WFP's contention that the assignment lacks evidence "that the required consultation and agreement with the presiding Justice of the Appellate Division- Second Department took place prior to (or even after) the designation" (WFP. Br. -17- pp. 41-42) is unavailing: petitioner raised no such claim below, where it might have been addressed in factual responsive papers and reviewed by that court. Consequently, the claim has been waived. See Misicki v. Caradonna, 12 N.Y.3d 511, 518-20 (2009).6 (b) Judge Fisher's Order Stated a Sufficiently Particular Case for Investigation WFP's claim that the January 2012 order fails to limit its scope to a "particular case" (WFP Br. pp. 42-45) is likewise erroneous. The Order plainly states that it applies to "a case" involving violations of the Election Law and other specified legal edicts "in connection with a 2009 City Council election on Staten Island," and that it is based on an application that remains under seal. Further details of the case are set forth with clarity in that application: owing to the need for confidentiality in the investigation, those details were not placed in Justice Fisher's order. This description fully meets the County's Law's requirement of particularity: indeed, read either alone or in conjunction with the application, it is substantially more particular than other orders which have been sustained in the face of legal challenge. See, ~, Matter of Suffolk County Legislature v. Mullen, 211 A.D.2d 736 (2d Dept. 1995) (upholding special prosecutor appointment order that covered, very generally, purported improprieties in the negotiation and 6 Even if WFP' s designation argument had merit -- and it does not -- we note that the appointment order would be enforceable under the de facto officer doctrine. See, ~ Matter of Morgenthau v. Cooke, 56 N.Y.2d 24,37 (1982). -18- implementation of county car leases, as well as "relationships, agreements, understandings and/or conduct" relating to how leases ended). Under these facts, WFP's particularity claim fails, and its citations to authority are misplaced or unpersuasive. In People v. Leahy, 72 N. Y .2d 510 (1988) this Court held that an SDA appointed to prosecute five felony complaints could not broaden his mandate and prosecute a sixth person who had not been the subject of the original order. That holding was a highly specific application of the "particular case" requirement - and is simply irrelevant in the investigatory phase of the present matter, where there have not yet been, and may never be, complaints or indictments against individuals or entities.7 In Matter of Board of Supervisors of Montgomery County v. Aulisi, 62 A.D.2d 644 (3d Dept.), affd, 46 N.Y.2d 731 (1978), a proposed SDA appointment was exceedingly open-ended, involving a country-wide investigation of a broad range of criminal gambling activity. Likewise in Matter of Rice, 31 Misc.3d 838 (Sup. Ct. Nassau Cnty. 2011), the proposed appointment sought investigatory review of a county crime laboratory, in a blanket manner, potentially implicating hundreds of criminal cases. In contrast to those matters, the order here focuses on a particular and limited historical episode, does not authorize blanket prosecution 7 That SDA Adler's investigation is ongoing mandates caution against early judicial review. See Matter of McGinley v. Hynes, 51 N.Y.2d 116 (1980) (when prosecutor is engaging in executive function Article 78 relief does not lie). -19- of any entity, and was issued in a manner designed to protect the confidential.ity of facts set forth in the district attorney's application. On the basis of the foregoing authority, WFP's challenge to Judge Fisher's order on grounds of insufficient specificity should be rejected. * * * In sum, the WFP's petition for relief in the nature of prohibition is premature, rests upon substantial misapprehensions of law and fact, and was rightly rejected by the Second Department. We respectfully submit that the Appellate Division's Judgment should be affirmed, and the petition should be dismissed. -20- CONCLUSION The Decision and Judgment of the Appellate Division should be affirmed and the petition should be dismissed. Dated: New York, New York February 3, 2014 ANTONIO GAL V AO of Counsel Respectfully submitted, JOHN W. McCONNELL Counsel Office of Court Administration 25 Beaver Street - 11 th Floor New York, New York 10004 (212) 428-2150 Attorney for Respondent-Respondent Han. Fern A. Fisher By: (/~ VL ,.~ LEE ALAN ADLERSTEIN -21-