Barbara Underwood, Attorney General State of New York
Jennifer M. Sommers, Deputy Chief, of counsel
Nicholas N. Viorst, Deputy Chief, of counsel
Attorney for the People William J. Dreyer, Esq. Dreyer
Boyajian, LLP. Attorney for the Defendant
JONATHAN D. NICHOLS, J.
Indictment dated December 1, 2017, the Defendant is charged
with two counts of Official Misconduct (see, Penal Law§
195.00 ) and one count of Perjury in the First Degree.
See, Penal Law§ 210.15.
motion dated March 30, 2018, the Defendant seeks an Order
granting various forms of relief, including that of an order
dismissing the charge of Perjury in the First Degree due to
the Attorney General's lack of jurisdiction to prosecute
that charge and, further, for an order dismissing the
Indictment pursuant to§§ 210.20 (l)(c) & 210.35
(5) of the Criminal Procedure Law (CPL).
Office of the Attorney General (OAG) has submitted papers in
opposition to the Defendant's motion.
instant motion practice is properly understood against the
backdrop of the established limits of the Attorney's
General's authority to institute and prosecute criminal
cases. Unlike that vested in the District Attorneys of the
various counties of the State, the Attorney General's
prosecutorial power is not absolute. Indeed, while the
District Attorneys possess general prosecutorial authority in
the counties where they are elected and serve, the Attorney
General has no such plenary authority and is "without
any prosecutorial power except when specifically authorized
by statute." Della Pietra v State of New York,
71N.Y.2d792, 797; see, People v. Gilmour, 98 N.Y.2d
126, 131; People v. Romero, 91 N.Y.2d 750, 754.
Moreover, in keeping with the limited nature of the Attorney
General's prosecutorial power in general, that
prosecutorial power granted to the Attorney General (and,
analogously, to special prosecutors) has been "...
delineate(d) meticulously" by the Legislature."
People v. Gilmour, supra at 132. Thus, cases in
which the Attorney General (or a special prosecutor) has
acted in excess of jurisdictional limits have invariably
resulted in those cases being dismissed due to that excess.
See, People v. Gilmour, supra at 135; People v.
Romero, 91 N.Y.2d 750; People v. Di Falco, 44
N.Y.2d 482; People v. Dondi, 40 N.Y.2d 8, 19;
People v. Sam, 49 A.D.2d 732.
8, 2015, Governor Andrew Cuomo issued Executive Order 147
which, inter alia, appointed the Attorney General as special
prosecutor in cases in which the death of an unarmed civilian
was caused by a law enforcement officer.
April 16, 2016, Edson Thevenin, an unarmed civilian, was shot
and killed by Sgt. Randall French of the Troy Police
Department after a traffic stop that was followed by a
vehicle pursuit. The Defendant presented the Thevenin
shooting to the Rensselaer County Grand Jury, which returned
"No True Bill" on April 22, 2016. On April 29,
2016, the Attorney General asserted jurisdiction over the
Thevenin shooting. Thereafter, Governor Cuomo issued
Executive Order 163.
stating that "... significant concerns have been raised
regarding the investigation into Edson Thevenin's death,
" and reciting the power vested in the Governor by
virtue of Executive Law§ 63 (2), Executive Order 163,
authorized the Attorney General (referred to as the
'special prosecutor' therein):
"... to investigate, and if warranted, prosecute any and
all unlawful acts or omissions or alleged unlawful acts or
omissions by any person arising out of, relating to, or in
any way connected with the Incident and its subsequent
investigation, including its grand jury presentation;
regarding any and all unlawful acts or omissions or alleged
unlawful acts or omissions identified above, the special
prosecutor shall have all of the powers and duties specified
in subdivisions 2 and 8 of section 63 of the Executive Law
for purposes of this Order, and shall possess and exercise
all the ...