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People v. Abelove

Supreme Court, Rensselaer County

June 11, 2018

The People of the State of New York, Plaintiff,
v.
Joel Abelove, Defendant.

          Hon. 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.

         By Indictment dated December 1, 2017, the Defendant is charged with two counts of Official Misconduct (see, Penal Law§ 195.00 [2]) and one count of Perjury in the First Degree. See, Penal Law§ 210.15.

         By 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).

         The Office of the Attorney General (OAG) has submitted papers in opposition to the Defendant's motion.

         The 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.

         On July 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.

         On 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.

         After 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;

         FURTHER, 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 ...


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