In Matter of Dondi v Jones (40 N.Y.2d 8, 13, supra), we recognized that prohibition would be an appropriate remedy if it were found that a Special Prosecutor was exceeding the authority conferred upon him through Executive Order by prosecuting a particular criminal defendant under an existing indictment.Summary of this case from Matter of McGinley v. Hynes
Argued April 29, 1976
Decided June 3, 1976
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department.
Maurice H. Nadjari, Deputy Attorney-General, Special State Prosecutor (Allen G. Swan, Bennett L. Gershman and John G. Siracusa, Jr., of counsel), for appellants. Patrick M. Wall for respondent.
Robert M. Morgenthau, District Attorney (Peter L. Zimroth and Robert M. Pitler of counsel), amicus curiae.
The underlying criminal action against petitioner Dondi rightly belongs within the jurisdiction of the District Attorney of Queens County.
In this article 78 proceeding in the nature of prohibition, petitioner Dondi seeks to prohibit respondent Jones, a Justice of the Extraordinary Special and Trial Term of the Supreme Court, and respondent Nadjari, a Deputy Attorney-General and a Special Prosecutor, from trying petitioner on an indictment accusing him of certain crimes now pending in the Supreme Court of Queens County. The Appellate Division, unanimously with four Justices participating, granted the petition and dismissed the indictment. Respondents Jones and Nadjari appeal.
It is claimed that Dondi, an attorney, was retained to represent one Evans in a proposed civil case, Evans having been involved in an automobile accident which had been investigated by Police Officer Gaughn; that Dondi sought out Gaughn and offered money in exchange for a change of testimony by the officer which would be favorable to the client; and that, after at first refusing the money, Gaughn, in co-operation with the Special Prosecutor, met with Dondi at the attorney's office in Queens and received funds for the altered testimonial version to be advanced in a planned civil action. On November 14, 1974, a Grand Jury of the Extraordinary Special and Trial Term of the Supreme Court in Queens County filed a two-count indictment accusing Dondi of bribery in the second degree and bribing a witness, in violation of sections 200.00 and 215.00 of the Penal Law.
Dondi, on December 13, 1974, moved for dismissal of the indictment on the ground that the Special Prosecutor was without jurisdiction under Executive Order 57 (9 N.Y.CRR 1.57) and on February 6, 1975, the said Extraordinary Term (MURTAGH, J.) denied the motion stating that the terms of said order "are prima facie sufficiently broad to sustain the Special Prosecutor's jurisdiction." Dondi moved for reargument on February 13, 1975 and Justice MURTAGH, in an opinion dated December 19, 1975, stood by his original decision but stated, "[a]fter * * * long consideration", inter alia:
"The calendars of the Extraordinary Special and Trial Terms of the Supreme Court in four of the five counties of the City of New York contain substantial numbers of cases that have a similar question as to the jurisdiction of the Special Prosecutor. The common denominator in all these cases is the question whether any of them involve `corrupt acts or omissions by a public servant' within the meaning of an appropriate Governor's Executive order in that the public servant was merely feigning his willingness to be corrupted.
* * *
"This Court has decided similar motions in other such cases adversely to the defendants involved but confesses a growing lack of conviction of the correctness of the rulings. The ambiguity of the language of the executive order is such as to permit a ruling to either effect.
"The defendant's position in this case is even more arguable in the light of the phrase in executive orders `arising out of, relating to or in any way connected with the enforcement of law or administration of criminal justice.'
* * *
"It is believed that all such cases, and particularly this one, would better be referred to the district attorney of the appropriate county for prosecution. * * * any issue of jurisdiction or lack of jurisdiction can thereby be avoided. * * *
* * *
"In the event that the Special Prosecutor elects to proceed with such trials, counsel will be free to move for a reargument on this subject, and the justice in the trial term is to be free to rule on the matter de novo and is not to consider himself bound to follow this Court's ruling."
Again, Dondi moved for dismissal, this time before respondent Jones, to whom the case had been assigned for trial, and the motion was once more denied on February 20, 1976.
This prohibition proceeding ensued. The petition prayed that an order issue prohibiting respondents from trying petitioner on the indictment but did not ask for dismissal of the indictment. It is contended that the Special Prosecutor had neither the authority to present evidence against petitioner before the Grand Jury nor authority to prosecute him on the indictment which that body returned and that, for these reasons, respondent Jones is without power to preside at the trial. Premised on the terms of the Executive Order, it is argued that this lack of authority arises from the lack of a corrupt act by a public servant, as well as the absence of relationship between any corrupt act and the enforcement of law or administration of criminal justice in the City of New York.
The threshold question involves the availability of prohibition as a remedy. Originally used by the English king to curb the powers of ecclesiastical courts, prohibition has evolved into a basic protection for the individual in his relations with the State (La Rocca v Lane, 37 N.Y.2d 575, 578; 23 Carmody-Wait 2d, N Y Prac, § 145:205). Rooted in the common law, it has been a statutory remedy in New York for many years and CPLR 7803 now provides that one of the questions that may be raised in an article 78 proceeding is "whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction" (subd 2).
It is realized full well that the extraordinary remedy of prohibition lies only where there is a clear legal right and only when the body or officer "acts or threatens to act 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 over which it has jurisdiction" (Matter of State of New York v King, 36 N.Y.2d 59, 62; Matter of Nigrone v Murtagh, 36 N.Y.2d 421, 423-424). It must be directed to some inferior judicial tribunal or officer and lies to prevent or control judicial or quasi-judicial action only, as distinguished from legislative, executive or ministerial action (Matter of Kaney v New York State Civ. Serv. Comm., 190 Misc. 944, 951 [HALPERN, J.], affd 273 App. Div. 1054, affd 298 N.Y. 707; 23 Carmody-Wait 2d, N Y Prac, § 145:215, p 788; see Comment: The Writ of Prohibition in New York — Attempt to Circumscribe an Elusive Concept, 50 St John's L Rev 76, 84). A public prosecutor is a quasi-judicial officer, who performs important duties within our judicial system, and is subject to prohibition under proper circumstances not alone confined to double jeopardy situations (Matter of Simonson v Cahn, 27 N.Y.2d 1; People v Fielding, 158 N.Y. 542, 547; Matter of Nolan v Court of Gen. Sessions of County of N Y, 15 A.D.2d 78, affd 11 N.Y.2d 114; People ex rel. Luetje v Ketcham, 45 Misc.2d 802, 804; Matter of McDonald v Goldstein, 191 Misc. 863, 865, affd 273 App. Div. 649).
Prohibition does not issue as of right, but only in the sound discretion of the court (Matter of Hogan v Court of Gen. Sessions of County of N.Y., 296 N.Y. 1, 8; People ex rel. Livingston v Wyatt, 186 N.Y. 383, 393; 23 Carmody-Wait 2d, NY Prac, § 145:214, pp 785-786). In exercising this discretion, various factors are to be considered, such as the gravity of the harm caused by the excess of power, the availability or unavailability of an adequate remedy on appeal or at law or in equity and the remedial effectiveness of prohibition if such an adequate remedy does not exist (La Rocca v Lane, 37 N.Y.2d 575, 579-580, supra; see Comment: The Writ of Prohibition in New York — Attempt to Circumscribe An Elusive Concept, 50 St John's L Rev 76, 98).
The Appellate Division held that prohibition is appropriate, stating that a clear-cut question of the Special Prosecutor's jurisdiction is presented and that it saw no reason why petitioner should have to await a possible conviction in order to vindicate his position, particularly since he is an attorney who would be automatically disbarred upon conviction. This position as to the harm to be visited upon petitioner in the event of disbarment was rejected in Matter of Nigrone v Murtagh ( 36 N.Y.2d 421, 425, supra) where appellant also was a member of the Bar. Here, the Special Prosecutor, in his brief, waives the claim that prohibition is not available and "strenuously" urges that this court decide the proceeding on its merits. It is stated that "a resolution of the merits is essential for the proper disposition of this and similar cases", over 30 in number as listed in Exhibit 1 of his brief, and that, without indication from this court, trial courts will be left in a quandary as to how to proceed in these cases. Justice Murtagh's decision on reargument recognizes the existence of "substantial numbers" of cases that have a similar question as to the jurisdiction of the Special Prosecutor. It is not jurisprudential folly to clarify the point, and even the Special Prosecutor asks for clarification. In the exercise of discretion, a court may consider the desirability of the prompt settlement of an important jurisdictional question so that a multiplicity of void proceedings in other cases will be prevented (Rescue Army v Municipal Ct. of City of Los Angeles, 28 Cal.2d 460, 467; 63 Am Jur 2d, Prohibition, § 7, p 233), obviously a situation present here. Although not enough alone, the harm to petitioner, in requiring him to proceed to trial and then testing the jurisdictional issue on appeal should there be a conviction, could be considered as an additional reason warranting prohibition.
Prohibition does not issue where the grievance can be redressed by ordinary proceedings at law or in equity, such as by appeal, motion or other ordinary applications, but, if the appeal, motion or other applications would be inadequate to prevent the harm and prohibition would furnish a more complete and efficacious remedy, it may be employed even though other methods of redress are technically available (La Rocca v Lane, 37 N.Y.2d 575, 579-580, supra; Matter of State of New York v King, 36 N.Y.2d 59, 62, supra; 23 Carmody-Wait 2d, N Y Prac, §§ 145:216, 145:217, 145:218). Although, on appeal, the Special Prosecutor contends that he has jurisdiction to prosecute the case and requests a ruling on the merits, it is pointed out in his brief that the availability of appeal from the denials of the applications to dismiss the indictment and the existence of a remedy by way of a motion to dismiss preclude collateral review by this article 78 proceeding. Any intimation that there was available to petitioner, at the time this article 78 proceeding was commenced, a motion for dismissal addressed to the Appellate Division pursuant to subdivision 2 of section 149 of the Judiciary Law overlooks the fact that petitioner, having obtained denials upon his previous motions, was precluded from seeking to overturn the prior determinations by a de novo motion in the Appellate Division (see People v Grennan, 283 App. Div. 987, affd 307 N.Y. 691; see, also, People v Glen, 30 N.Y.2d 252, 262-263). It is fundamental that, in the absence of a statutory exception (e.g., CPL 710.40, subd 4) and in order to prevent vexatious and repeated applications on the same point, a motion once fully heard and decided cannot be revived again or renewed unless with leave of the court or Judge who denied it or if made upon presentation of new facts which have occurred since the denial of the previous motion (see Belmont v Erie Ry. Co., 52 Barb 637, 642; New York Cent. R.R. Co. v Beacon Milling Co., 184 Misc. 187, 191; 2 Carmody-Wait 2d, N Y Prac, § 8:73, pp 94-95; Tripp, Guide to Motion Practice, pp 29-30). Furthermore, a court should not ordinarily reconsider, disturb or overrule an order in the same action of another court of co-ordinate jurisdiction (cf. Mount Sinai Hosp. v Davis, 8 A.D.2d 361, 362-363). Thus, petitioner's failure to institute a motion under subdivision 2 of section 149 of the Judiciary Law does not operate as a bar to prohibition.
Viewed in the light of the Executive Order, petitioner's claim of "arrogation of power" by the Special Prosecutor, based on the arguments that there is no corruption by a public servant nor involvement with the enforcement of law or administration of criminal justice in the City of New York, is "substantial" (see La Rocca v Lane, 37 N.Y.2d 575, 580, 581, supra). The issue goes to the very authority or power and, thus, jurisdiction of the officer, not to a mere mistake or "an error in procedure or substantive law during a litigation". In the court's discretion, it should be reviewed by way of prohibition.
On September 19, 1972, Governor Rockefeller, by five separate Executive Orders, almost identical and numbered 55 to 59, inclusive (9 N.Y.CRR 1.55-1.59), ordered the Attorney-General to supersede the five District Attorneys in New York City and to prosecute certain defined types of corruption in the five counties within said city. In turn, the Attorney-General appointed Maurice H. Nadjari as Deputy Attorney-General and Special Prosecutor. Executive Order 57, applicable to Queens County, in pertinent part, required the Attorney-General to investigate and prosecute: "(b) any and all acts and omissions and alleged acts and omissions by any person occurring heretofore or hereafter in the County of Queens in violation of any provision of State or local law and arising out of, relating to or in any way connected with corrupt acts or omissions by a public servant or former public servant arising out of, relating to or in any way connected with the enforcement of law or administration of criminal justice in the City of New York". As distinguished from paragraph (a) of the order, which relates to "corrupt acts and omissions by a public servant or former public servant", paragraph (b) is addressed to "acts and omissions * * * by any person" who has corrupted or attempted to corrupt public servants or former public servants, or who will do so, in the geographical and legal areas specified.
It is syllogized that petitioner is alleged to have offered to bribe a police officer but the police officer was honest and did not succumb to being bribed and, therefore, that the charged acts were in no way related to "corrupt acts and omissions by a public servant". The defect in this reasoning is apparent, since it cannot be concluded on these or any other premises that an attempt to corrupt a public servant by offering and giving him a sum of money as a bribe is not "relat[ed] to or in any way connected with corrupt acts or omissions by a public servant", broad yet explicit language indeed. In short, the officer need not be corrupt himself.
As a second basis for lack of jurisdiction, it is urged that the alleged bribe was given in an effort to influence the testimony of a police officer in a projected purely civil personal injury action and that the Special Prosecutor has no jurisdiction except for cases where the committed corrupt act relates to "the enforcement of law or administration of criminal justice in the City of New York". At best, the phrase "enforcement of law" is ambiguous and, noticeably, the order employs the restrictive language of "administration of criminal justice", rather than the "administration of justice."
Any ambiguity that may exist in paragraph (b) of the Executive Order arises from the question as to whether the investigation and prosecution are by its terms directed against an individual (or individuals) or an act (or acts). The consequence of the resolution of this ambiguity is that, if the effort is aimed at an individual, then any public servant connected with the criminal justice system would yield jurisdiction to the Special Prosecutor. On the other hand, if the drive of the investigation and prosecution is bottomed on an act, then an act would have to be within the criminal justice system itself or connected with it in order that there would be jurisdiction. Semantically, the more reasonable determination favors the act as the fulcrum about which the issue turns. First, the last words of the opening paragraph are "concerning or relating to" while the first expression of paragraph (b) is "any and all acts and omissions and alleged acts and omissions". In the second place, the paragraph speaks to "corrupt acts or omissions by a public servant", rather than to a public servant who has committed corrupt acts. Thirdly, if the crucial factor was the individual rather than the act, then the paragraph would have included language to the effect that the individual (the public servant) had duties to perform in the enforcement of law or the administration of criminal justice.
This interpretation is supported by the unanimous decision of the Appellate Division, First Department, in People v Sam ( 49 A.D.2d 732) where members of the New York City Transit Authority Police Department were also officers of a religious organization of transit officers and were indicted by the Extraordinary Special Grand Jury for New York County. They were charged with conspiracy and grand larceny in respect to the theft of society money by overpaying bills submitted by the society's travel agent in connection with tours. In examining Executive Order 58 (obviously paragraph [a] thereof), it was held: "Three elements are necessary for jurisdiction. In this situation, each of the defendants is a `public servant' and the alleged acts are `corrupt'. However, they do not relate to `the enforcement of law or administration of criminal justice.'" So too, here, the acts charged related to an attempt to bribe a prospective witness, acting as any other witness in a purely civil matter, not related to the enforcement of law or administration of criminal justice.
Significantly, in the preamble of the Executive Order, Governor Rockefeller indicated that it was issued "in view of the recommendation of the Commission to Investigate Allegations of Police Corruption in the City of New York." That body, known as the Knapp Commission, had recommended to the Governor the appointment of a Special Prosecutor with authority "to investigate and prosecute all crimes involving corruption in the criminal justice process" (Summary and Principal Recommendations of Commission to Investigate Allegations of Police Corruption , p 15). The Special Prosecutor's goal would be to "supplement regular anti-corruption efforts in the criminal justice process" (p 16). On the same day that the order was signed, the Governor issued a statement in which it was declared: "I have today set in motion a thorough-going investigation and prosecution of corruption at all levels in the system of criminal justice of New York City. * * * Thus, today I have * * * [d]irected Attorney General Lefkowitz to appoint a Special Prosecutor to investigate and prosecute corruption throughout the criminal justice system of New York City. * * * The Special Prosecutor, under the Executive Order I have issued, will supersede the district attorneys as to investigation and prosecution of corruption at all levels in the system of criminal justice in the five counties of New York City * * *. * * * The Special Prosecutor will bring centralized direction and coordination, added manpower and resources, and an exclusive focus on efforts to fight corruption in the criminal justice system."
Any ambiguity attendant the words "enforcement of law" and "administration of criminal justice" was quickly eliminated. On September 30, 1972, the Special Prosecutor and the District Attorneys of Bronx, Kings, New York, Queens and Richmond Counties issued a joint statement in which they stated that they had arrived at a working agreement to carry out the September 19 order of the Governor. Decisively and constituting an admission by the Special Prosecutor, we find the declaration therein: "It was the intent of this order to supersede only in those cases dealing with corruption relating strictly to the criminal justice process * * *" (1972 Public Papers of Governor Rockefeller, p 1107, emphasis added; see Matter of Sunhill Water Corp. v Water Resources Comm., 32 A.D.2d 1006, 1008; Browne v City of New York, 213 App. Div. 206, 233, affd 241 N.Y. 96; Fisch, New York Evidence, § 1063, n 24). Three days later, as shown by an official press release from the Executive Chambers and of even greater significance than the agreement itself, the Governor was quoted as expressing approval of the agreement and as stating: "The scope of the Special Prosecutor's assignment is to investigate and prosecute corruption at all levels of the criminal justice system". If the superseding is to be confined strictly to the criminal justice process or system, then obviously the Special Prosecutor's jurisdiction does not embrace the judicial system in general or the civil justice process in particular. Had the intent been to cover the entire judicial system or process, wording to that effect would have been employed rather than the restrictive term of "criminal justice system". In examining the minority's use of an analogy and its reference to claimed "cowcatcher" language in the Executive Order, it must be kept in mind that the "engine of authority", to which the "cowcatcher" is attached, must itself be kept on the tracks of the "criminal justice system".
The dissent lists certain Executive Orders made since the original orders of September 19, 1972 and indicates that many of these orders transferred cases from the Special Prosecutor to the local District Attorneys for prosecution "for reasons of practicality". Of the orders listed, those numbered 57.01, 57.03, 57.06, 57.07, 55.01, 56.01, 58.01 and 59.01 do effectuate a transfer of specific cases but there is nothing in these orders from which it can be gleaned that the action was taken "for reasons of practicality". It is not unreasonable to infer, based on the statement in the dissent that a majority involved bribery of a police officer who feigned acceptance or immediately arrested the briber, that at least a majority of the transfers were accomplished in an effort to avoid questions of jurisdiction.
The District Attorney is a constitutional officer chosen by the electors of a county (NY Const, art XIII, § 13) whose statutory duties include one "to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected or appointed" (County Law, § 700, subd 1). This is not an exclusive grant of power to District Attorneys, however. Subdivision 2 of section 63 of the Executive Law provides for the superseding of a District Attorney, in which event the Attorney-General's authority and that of the Special Prosecutor appointed by him are limited to and by the scope of the order or requirement of the Governor (Matter of Turecamo Contr. Co., 260 App. Div. 253, 259; People ex rel. Osborne v Board of Supervisors of County of Westchester, 168 App. Div. 765, 767). With this restriction in mind and because Executive Order 57 relates strictly to the "criminal justice system", the Special Prosecutor was not authorized to investigate and prosecute acts relating to a proposed purely civil action. As to normal prosecutorial functions, the Special Prosecutor was not intended to replace the District Attorneys of the counties within the City of New York.
The Supreme Court, constitutionally, has general original jurisdiction in law and equity (NY Const, art VI, § 7) and, by statute, trial jurisdiction over all felonies (CPL 10.20, subd 1). Since once an extraordinary term is created by the Governor, it becomes a term of the Supreme Court with the same jurisdiction that belongs to any other term, the Extraordinary Special and Trial Term of the Supreme Court, Queens County, does not lack jurisdiction (Matter of Reynolds v Cropsey, 241 N.Y. 389, 395-396; People ex rel. Saranac Land Timber Co. v Extraordinary Special Trial Term of Supreme Ct., 220 N.Y. 487, 492). It has an existence independent of that of the Special Prosecutor and of the order or requirement limiting the latter's jurisdiction.
By this determination we do not free Dondi. Rather, his prosecution for the crimes charged, either under the present indictment or any superseding indictments, should be undertaken by the District Attorney of Queens County.
The judgment of the Appellate Division is modified by striking therefrom the provision that the indictment be dismissed and by dismissing that part of the petition which requests that respondent Jones, as Justice of the Extraordinary Special and Trial Term of the Supreme Court of the State of New York, Queens County, be prohibited from trying petitioner on the indictment pending against petitioner in Queens County and, except as so modified, the judgment should be affirmed, without costs.
This is another in the endless attempts to obtain premature appellate review of intermediate court orders in criminal cases by way of an extraordinary collateral civil proceeding (Matter of Cunningham v Nadjari, 39 N.Y.2d 314; Matter of Alphonso C., 38 N.Y.2d 801; Matter of Santangello v People, 38 N.Y.2d 536; Matter of Nigrone v Murtagh, 36 N.Y.2d 421; Matter of State of New York v King, 36 N.Y.2d 59; Matter of Lopez v Justices of Supreme Ct., 36 N.Y.2d 949; Matter of Scranton v Supreme Ct. of State of N.Y., 36 N.Y.2d 704; Matter of Paciona v Marshall, 35 N.Y.2d 289; Matter of Wroblewski v Ricotta, 35 N.Y.2d 745). Time and time again, this court has made unequivocally clear that, as a matter of law, and even more certainly as a matter of discretion, an article 78 proceeding brought to prohibit a criminal prosecution should be entertained only in narrow and extraordinary instances (see, e.g., La Rocca v Lane, 37 N.Y.2d 575, 578-581, cert den 424 U.S. 968; Matter of Nigrone v Murtagh, 36 N.Y.2d 421, 423-424, supra; Matter of State of New York v King, 36 N.Y.2d 59, 62, supra).
As stated in Matter of State of New York v King ( 36 N.Y.2d 59, 63, supra): "the underlying policy is to limit appellate proliferation in criminal matters, sometimes to the seeming detriment of the defendant and sometimes to the detriment of the People. Litigation may be compounded unduly by protracted and multifarious appeals and collateral proceedings frustrating the speedy determination of disputes. Moreover, the frustration may be accomplished by skillful manipulation of appeals and collateral proceedings by those interested in delay."
The instant proceeding is further illustrative of the frustration of the speedy determination of a criminal action. Indicted in November, 1974, petitioner, eschewing an available statutory remedy to move the Appellate Division to dismiss the indictment under subdivision 2 of section 149 of the Judiciary Law, instead, in December, 1974, moved before the late Mr. Justice MURTAGH, then presiding at Extraordinary Term, to dismiss the indictment because the Special Prosecutor had no jurisdiction to prosecute the crime for which he had been indicted. After denial of this motion on February 6, 1975, petitioner moved for reargument, and after reconsideration, the motion to dismiss was again denied on December 19, 1975, with leave to renew before the trial court. The motion to dismiss was made before Judge JONES, to whom the case was assigned for trial, and it was denied on February 20, 1976. Switching strategy, on March 16, 1976, petitioner moved to dismiss the indictment on speedy trial grounds, but this was denied. On March 22, 1976, some 16 months after the indictment was filed, petitioner, again switching strategy, instituted the present collateral article 78 proceeding to litigate again the very issue thrice litigated before in the criminal action.
It would be jurisprudential folly to countenance these diversive tactics, let alone permit them to succeed, especially when a direct remedy once available under section 149 of the Judiciary Law was not pursued. The net effect would be to allow merit-avoiding strategies and collateral proceedings to frustrate the guilt-determining process. As stated in Matter of State of New York v King ( 36 N.Y.2d 59, 65, supra), the use of such tactics may be a "credit to man's ingenuity but a disabling discredit to the jurisprudence."
Nevertheless, despite these admonitions, petitioner contends that prohibition lies to challenge the power of the Special Prosecutor to prosecute him for the crime for which he was indicted and the power of trial court to try him.
The extraordinary remedy of prohibition is never available to correct errors of procedural or substantive law, however grievous. It is not a substitute for an appeal or the direct motion to the Appellate Division provided in the Judiciary Law. Instead, prohibition is available, only where there is a clear legal right, to restrain an unwarranted assumption of jurisdiction or to prevent a court (if a court is involved) from exceeding its authorized powers in a proceeding over which it has jurisdiction. (La Rocca v Lane, 37 N.Y.2d 575, 578-579, supra, and cases cited.) When a petitioner presents a "substantial" claim that a court or an officer is acting without jurisdiction or power, or in excess of power, prohibition will lie, in the first instance, to restrain the excess of power. While the court, upon reaching the merits, may decide the issue adversely to petitioner, that does not foreclose the remedy (pp 580-581).
Petitioner offers no "substantial" claim that the trial court or the Special Prosecutor have exceeded their powers and thus prohibition does not lie. The majority concedes that Judge JONES has the power to try petitioner, as it must. Judge JONES is assisting at an Extraordinary Term of Supreme Court established by order of the Governor (NY Const, art VI, § 27; Judiciary Law, § 149, subd 1). An Extraordinary Term is an additional term of Supreme Court and possesses the same jurisdiction as any other term of that court (Matter of Reynolds v Cropsey, 241 N.Y. 389, 395-396; People ex rel. Saranac Land Timber Co. v Extraordinary Special Trial Term of Supreme Ct., 220 N.Y. 487, 492). Consequently, it states the axiomatic that the Supreme Court, a court of general jurisdiction, has the power to try a bribery case.
A prosecutor is the epitome of an officer of the executive branch. He is powerless to make judicial or quasi-judicial determinations, albeit his discretion is broad indeed as is true of many administrative officers. To bring his office within the judicial umbrella in order to sustain prohibition because he is often characterized as a "quasi-judicial" officer is to render no service to the analysis, any more than to say that because a lawyer is an officer of the court he is vested with some kind of judicial office. The fact is that the characterization of "quasi-judicial" officer is to demark his responsibilities from those of any lawyer. It expresses the mandate that his responsibility is not only to investigate and prosecute but to do so subject to the imperatives of his responsibilities toward the public, the courts, and the persons he brings to heel on charges of crime, and that he do so with the same degree of objectivity and neutrality that one expects of a court (see People v Fielding, 158 N.Y. 542, 547; Matter of McDonald v Goldstein, 273 App. Div. 649, 651). It does not make him a judicial officer.
Moreover, the few cases in which the prosecutor is joined as a respondent in prohibition together with a court or Judge, the issue has rarely been considered serious enough to treat because the prohibition lay against the court and Judge as in the line of double jeopardy cases (see, e.g., Matter of Abraham v Justices of N.Y. Supreme Ct., 37 N.Y.2d 560; Matter of Cirillo v Justices of Supreme Ct., 34 N.Y.2d 990; Matter of Nolan v Court of Gen. Sessions, 15 A.D.2d 78, affd 11 N.Y.2d 114; cf. Matter of Simonson v Cahn, 27 N.Y.2d 1 [waiver of indictment]; but see People ex rel. Luetje v Ketcham, 45 Misc.2d 802, 804 ).
With respect to the Special Prosecutor's "power" or "jurisdiction" to prosecute this case, a more refined analysis is required. No one disputes the Special Prosecutor's power to prosecute "any and all acts and omissions and alleged acts and omissions by any person occurring * * * in the County of Queens in violation of any provision of State or local law and arising out of, relating to or in any way connected with corrupt acts or omissions by a public servant or former public servant arising out of, relating to or in any way connected with the enforcement of law or administration of criminal justice in the City of New York" (Executive Order No. 57, subd I, par [b]; 9 N.Y.CRR 1.57).
Even if one assumes that petitioner is correct in his contention that the Special Prosecutor may not lawfully prosecute this case, in light of the broad grant of prosecutorial power contained in the order, an overstepping of "jurisdiction" by the Special Prosecutor in this case could, at most, arguably be characterized an "error of law", and not as an "excess of power", either by him or the nisi prius courts which three times denied petitioner's motion. The court's recent admonition in Matter of State of New York v King ( 36 N.Y.2d 59, 62, supra) applies: "errors of law, which of course may be verbalized, but incorrectly, as excesses of jurisdiction or power, are not to be confused with a proper basis for using the extraordinary writ".
Moreover, even if characterized as an "excess of power", in light of the broad language of the Executive Order, it may not be said that the prosecution of petitioner would rise to the level of "a gross abuse of power on its face and in effect * * * so serious an excess of power incontrovertibly justifying and requiring summary correction" (La Rocca v Lane, 37 N.Y.2d 575, 580, supra). Hence, prohibition does not lie and the petition should have been dismissed by the Appellate Division. Petitioner's proper remedy would be to raise his claim on an appeal from a judgment of conviction, if that should eventuate.
As the majority holds that prohibition lies and has reached the merits, if I do reach the merits, I am constrained to disagree. In granting prohibition and dismissing the indictment, the Appellate Division abused its discretion as a matter of law.
The applicable principles were restated in La Rocca v Lane ( 37 N.Y.2d 575, 579-580, supra):
"Prohibition is not mandatory, but may issue in the sound discretion of the court (see, e.g., Matter of Hogan v Court of Gen. Sessions of County of N.Y., 296 N.Y. 1, 8; Matter of Culver Contr. Corp. v Humphrey, 268 N.Y. 26, 39). In exercising this discretion, a number of factors should be considered.
"The gravity of the harm which would be caused by an excess of power is an important factor to be weighed (see Matter of Culver Contr. Corp. v Humphrey, 268 N.Y. 26, 40, supra; see, also, 23 Carmody-Wait, 2d, New York Practice, op. cit., § 145:216, pp 793-794). Also important, but not controlling, is whether the excess of power can be adequately corrected on appeal or by other ordinary proceedings at law or in equity (see, e.g., Matter of State of New York v King, 36 N.Y.2d 59, 62, supra; Matter of Roberts v County Ct. of Wyoming County, 34 N.Y.2d 246, 249, supra).
"If an adequate remedy is available, the burdening of judicial process with collateral proceedings, interruptive of the orderly administration of justice, would be unjustified. If, however, appeal or other proceedings would be inadequate to prevent the harm, and prohibition would furnish a more complete and efficacious remedy, it may be used even though other methods of redress are technically available (see, e.g., Matter of Lee v County Ct. of Erie County, 28 N.Y.2d 432, 437, supra; Matter of Culver Contr. Corp. v Humphrey, 268 N.Y. 26, 40, supra)."
Petitioner had litigated the issue of the Special Prosecutor's power in the criminal action three times before instituting this article 78 proceeding. He therefore not once, but several times, preserved the issue for appeal after conviction.
Of course, the requirement of standing trial and the possibility of conviction is not sufficient "harm" warranting prohibition (see, e.g., Matter of Nigrone v Murtagh, 36 N.Y.2d 421, supra). Double jeopardy is the rare exception and the application of the remedy of prohibition in that instance is of relatively recent vintage (see Matter of Kraemer v County Ct. of Suffolk County, 6 N.Y.2d 363, 365). And, although upon conviction, by operation of statute, petitioner would be disbarred, this too is insufficient harm warranting prohibition (Matter of Nigrone v Murtagh, supra). Instead, the possible harm meriting summary correction by prohibition must be of the magnitude of a double jeopardy, a perversion of the entire criminal action or a collision of unquestioned constitutional rights (see, e.g., Matter of Abraham v Justices of N.Y. Supreme Ct., 37 N.Y.2d 560, 564, supra, and cases cited; Matter of Proskin v County Ct. of Albany County, 30 N.Y.2d 15, 18-19; La Rocca v Lane, 37 N.Y.2d 575, 581, supra). The risk of such harm was not present in the instant case.
Moreover, as noted earlier, there was an adequate alternative remedy at the Appellate Division available to petitioner, but one which he chose not to use. Subdivision 2 of section 149 of the Judiciary Law authorizes a defendant to move the Appellate Division to dismiss the indictment (see People v Sam, 49 A.D.2d 732; Matter of Moritt v Nadjari, 46 A.D.2d 784, n). Such a motion could have been entertained, as a direct, forthright, and unambiguous remedy, upon the ground that the Special Prosecutor was not a proper person before the Grand Jury and thus the Grand Jury proceedings were defective (CPL 190.25, subd 3; 210.20, subd 1, par [c]; 210.35, subd 5; cf. People ex rel. Hamway v Truesdell, 261 App. Div. 824). If such a motion were successful, the matter could have been resubmitted to another Grand Jury or, more likely in this case, transferred to the appropriate prosecutor (CPL 210.20, subd 4; cf. People v Ferdinando, 40 A.D.2d 714), or the Special Prosecutor would have obtained an amendment to the Executive Order as he did quite recently (Executive Order No. 56.20; 9 N.Y.CRR 1.56.20 [Bronx County]). Petitioner's failure to pursue his statutory remedy alone would bar the extraordinary civil proceeding of prohibition (cf. Matter of Paciona v Marshall, 35 N.Y.2d 289, 290, supra). People v Grennan ( 283 App. Div. 987, affd 307 N.Y. 691) and People v Glen ( 30 N.Y.2d 252, 262-263), cited by the majority, do not support the argument that, once petitioner's motions to dismiss had been denied by Extraordinary Term, he would be precluded from seeking relief from the Appellate Division under section 149 of the Judiciary Law. In the Grennan case (supra), the defendant applied to the Appellate Division for bail after a Special Assistant Attorney-General had secured an order from Extraordinary Term fixing bail. The Appellate Division stated that Extraordinary Term's order did not preclude defendant from seeking bail from the Appellate Division, but denied defendant's application on the merits. In the Glen case (supra), the court condemned the practice of making successive motions to the nisi prius court to suppress evidence without a showing of new additional evidence of unlawfulness. Thus, neither case held that the Appellate Division is precluded from entertaining a de novo motion under section 149 of the Judiciary Law because Extraordinary Term has denied a motion to dismiss.
But there is a more fundamental reason why prohibition should have been denied: the Special Prosecutor does, in fact, have the power to prosecute petitioner for the crime of offering a bribe to a police officer to influence his testimony in an impending civil proceeding. Indeed, this appears to have been the basis for the Appellate Division, First Department, denial of an application for an order of prohibition in a similar case involving the bribery of two policemen who only feigned acceptance of the bribe (Matter of Burman v Murtagh, 48 A.D.2d 767).
The Special Prosecutor's authority emanates from subdivision 2 of section 63 of the Executive Law, which empowers the Attorney-General to act in whatever matters the Governor requires. The only limitation is that "specified in such requirement" (see People v Welz, 70 Misc. 183, 184).
As noted earlier, the language of the requirement (Executive Order No. 57; 9 N.Y.CRR 1.57 [Queens County]) delineating the Special Prosecutor's authority is broad. The Special Prosecutor is authorized to prosecute "any and all acts and omissions and alleged acts and omissions * * * relating to or in any way connected with corrupt acts or omissions by a public servant * * * arising out of, or relating to or in any way connected with the enforcement of law or administration of criminal justice".
There is no dispute that petitioner is a "person" or that Officer Gaughan is a "public servant" within the meaning of the order. The crimes charged are undisputably "corrupt acts" (Executive Order No. 57, subd III, par [c], cl , subdcl [iii]). Petitioner contends, however, that since the police officer only feigned acceptance of the bribe, his was not a "corrupt act or omission by a public servant". In any event, petitioner argues, because the crimes involved the influencing of the officer's testimony in an impending civil case they were unrelated to the "enforcement of law or administration of criminal justice".
The majority has correctly rejected petitioner's first argument. This argument ignores the expansive purpose of the Executive Order. The Commission to Investigate Allegations of Police Corruption in the City of New York (Knapp Commission) recommended appointment of a Special Prosecutor to eliminate "patterns of corruption" (Knapp Commission Report, at pp 15-17). The commission emphasized that "temptations to engage in corrupt activity on the part of the police and the public must be reduced by subjecting both to significant risks of detection, apprehension, conviction, and penalties" (at p 17). A principal corrupt activity found to be widespread in the city was bribery of public officials, particularly police officers. To combat this corruption the commission recommended a "campaign against bribers" (at p 21). If petitioner is guilty, he was a would-be briber, and it is not unlikely that that may have been a pattern of his conduct, not discovered before because corrupt officers learned from him or taught him the "other way".
Thus, one of the primary purposes for the establishment of the Special Prosecutor's office was to eliminate the bribery of public officials. Since petitioner allegedly offered the bribe to the police officer to influence his testimony, he was no less a briber of a public official, and therefore a target of the "campaign against bribers", because the police officer feigned acceptance to catch a briber and was not actually "corrupt". It would be illogical and unrealistic, in view of the purpose and breadth of the Executive Order, to bifurcate the Special Prosecutor's jurisdiction according to the mental state of the bribe receiver.
Petitioner's argument that his alleged crime was unrelated to the "enforcement of law or the administration of criminal justice" because the bribe was offered in connection with an impending civil case is also unpersuasive. A police officer's principal duty is to enforce the law, including traffic ordinances, with the invocation of criminal sanctions when appropriate. Section 603 of the Vehicle and Traffic Law requires a policeman to investigate an automobile accident and fill out an accident report. This was precisely the police activity involved in the instant case, investigating, reporting an automobile accident, and issuing a summons or making an arrest if indicated. Perjurious testimony by the police officer regarding the accident would manifestly involve corruption related to the officer's law enforcement duties, whether given in a civil or criminal court.
But much of this discussion of language refinements would be bootless except for the nature of the arguments addressed to them by petitioner. Most important, and indeed conclusive, of the breadth of the language of the Executive Order is its traditional "cowcatcher" to the engine of authority, that is, "any and all acts and omissions and alleged acts and omissions * * * relating to or in any way connected with the enforcement of law or administration of criminal justice". It is just that kind of language which sweeps up, and is intended to sweep up, all acts however tenuously related to the enforcement of law. It is language used exactly for the purpose of avoiding the over-refined, attenuated reasoning, and off-the-merits attacks on investigations and prosecutions. It serves to the same effect as a general related purpose clause in a certificate or charter of incorporation. So that even if one would argue with the distinction earlier made, the catch-all clause swallows up whatever resistance is left — or at least it should. Indeed, had some of the specific language suggested by petitioner, such as that relating to "pretenses" been used, under the hoary maxim of ejusdem generis the catch-all clause would have been restricted. There are fewer, if any, more broadening clauses than "in any way" or words like "relating" or "connected", not only in this context but in any other. It is difficult to formulate language more embracing than this and yet take in any conduct relating to or in any way connected with the enforcement of law.
Equally supportive of the Special Prosecutor's authority to prosecute petitioner is the practical construction given the Executive Order by three Governors.
An Executive Order is ambulatory, and is alterable or revocable at the pleasure of the Governor. Indeed, on numerous occasions, three Governors have seen fit to reaffirm, amend, or limit the scope of the original Executive Order for various purposes (see, e.g., 9 N.Y.CRR 1.57.01; 1.57.02; 1.57.03; 1.57.04; 1.57.05; 1.57.06; 1.57.07; 1.63; 3.21; 3.26 [Queens County]; 1.55.01 [NY County]; 1.56.01 [Bronx County]; 1.58.01 [Kings County]; 1.59.01 [Richmond County]). Many of these orders transferred, for reasons of practicality, cases from the Special Prosecutor to the local District Attorneys to prosecute. The majority of these orders transferred cases involving bribery of a police officer who feigned acceptance or immediately arrested the briber (e.g., 9 N.Y.CRR 1.57.01). Thus, by transferring such cases the Governor implicitly recognized and confirmed the Special Prosecutor's authority to initiate and prosecute this type of case. This practical construction of the original order by three Governors is persuasive evidence that the Special Prosecutor has the power to prosecute petitioner.
Moreover, it is significant that in none of the orders affecting the original order has the language delineating the Special Prosecutor's prosecutorial authority ever been altered. Diplomatic ententes among affected local prosecutors and the Special Prosecutor of course do not have the force of law and are hardly interpretive of restrictions or limitations of the Executive Order. Indeed, despite the present Governor's publicized review of the Special Prosecutor's performance in office, the Governor did not see fit to limit the scope of his power, something he could and can do with a stroke of the pen.
Accordingly, I dissent and vote to reverse the order of the Appellate Division and dismiss the petition.
Judges GABRIELLI, WACHTLER and FUCHSBERG concur with Judge COOKE; Chief Judge BREITEL dissents and votes to reverse and dismiss the petition in a separate opinion in which Judges JASEN and JONES concur.
Judgment modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.