Opinion
395.1 KA 18–01593
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Benjamin M. WASSELL, Defendant–Appellant.
JAMES OSTROWSKI, BUFFALO, FOR DEFENDANT–APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MATTHEW B. KELLER OF COUNSEL), FOR RESPONDENT.
JAMES OSTROWSKI, BUFFALO, FOR DEFENDANT–APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (MATTHEW B. KELLER OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the indictment is dismissed and the matter is remitted to Chautauqua County Court for proceedings pursuant to CPL 470.45.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the third degree ( Penal Law § 265.02[7] ) and two counts of criminal sale of a firearm in the third degree (§ 265.11[1], [2] ). The charges arose from defendant's sale of a Del–Ton AR–15 semiautomatic rifle to an undercover investigator. Pursuant to Penal Law § 265.00(22), the rifle is classified as an "assault weapon" inasmuch as it is able to accept a detachable magazine and has a telescoping stock, a conspicuous pistol grip, a bayonet mount, and a muzzle break. The Attorney General of the State of New York obtained an indictment against defendant and prosecuted the matter through trial and sentencing.
Defendant contends that the Attorney General lacked the authority to prosecute him for the crimes charged. As an initial matter, defendant's challenge to the Attorney General's authority presents a question of jurisdiction, which defendant was not required to preserve for our review (see generally People v. Glanda, 5 A.D.3d 945, 947, 774 N.Y.S.2d 576 [3d Dept. 2004], lv denied 3 N.Y.3d 640, 782 N.Y.S.2d 412, 816 N.E.2d 202 [2004], reconsideration denied 3 N.Y.3d 674, 784 N.Y.S.2d 13, 817 N.E.2d 831 [2004], cert denied 543 U.S. 1093, 125 S.Ct. 973, 160 L.Ed.2d 906 [2005] ; People v. Codina, 297 A.D.2d 539, 540–541, 747 N.Y.S.2d 209 [1st Dept. 2002], lv dismissed 98 N.Y.2d 767, 752 N.Y.S.2d 7, 781 N.E.2d 919 [2002], reconsideration denied 99 N.Y.2d 556, 754 N.Y.S.2d 208, 784 N.E.2d 81 [2002] ; People v. Fox, 253 A.D.2d 192, 193–194, 692 N.Y.S.2d 174 [3d Dept. 1999], lv denied 93 N.Y.2d 1018, 697 N.Y.S.2d 577, 719 N.E.2d 938 [1999] ).
It is well settled that the Attorney General lacks general prosecutorial authority and has the power to prosecute only where specifically permitted by statute (see Della Pietra v. State of New York, 71 N.Y.2d 792, 796–797, 530 N.Y.S.2d 510, 526 N.E.2d 1 [1988] ). As relevant here, Executive Law § 63(3) grants the Attorney General prosecutorial authority "[u]pon request of ... the head of any ... department, authority, division, or agency of the state" (emphasis added). Although the People assert that the Attorney General had authority to prosecute this matter under section 63(3) based on a request made by the State Police, such a request would confer that authority only if made by the head of the division, i.e., the Superintendent of State Police (see People v. Gilmour, 98 N.Y.2d 126, 133, 746 N.Y.S.2d 114, 773 N.E.2d 479 [2002] ; see generally People v. Rogers, 157 A.D.3d 1001, 1002, 69 N.Y.S.3d 384 [3d Dept. 2018], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ; People v. Marketing & Adv. Servs. Ctr. Corp., 272 A.D.2d 982, 982, 708 N.Y.S.2d 227 [4th Dept. 2000], lv denied 95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953 [2000] ). Moreover, "the State bears the burden of showing that the [division or] agency head has asked for the prosecutorial participation of the Attorney General's office" ( Gilmour, 98 N.Y.2d at 135, 746 N.Y.S.2d 114, 773 N.E.2d 479 ).
Here, the stipulated record on appeal does not establish that the Superintendent of State Police requested that the Attorney General prosecute this case. Indeed, there is no letter from the Superintendent in the record (see id. at 134, 746 N.Y.S.2d 114, 773 N.E.2d 479 ; cf. Rogers, 157 A.D.3d at 1002, 69 N.Y.S.3d 384 ; Marketing & Adv. Servs. Ctr. Corp., 272 A.D.2d at 982, 708 N.Y.S.2d 227 ), nor is there any other showing in the record that a request came from the Superintendent himself. Because the People failed to establish that the Attorney General had authority to secure the indictment and prosecute the case, we conclude that the judgment must be reversed and the indictment dismissed (see Gilmour, 98 N.Y.2d at 135, 746 N.Y.S.2d 114, 773 N.E.2d 479 ).
We note that the People, for the first time through post-argument submissions, have provided this Court with a letter from the Superintendent to the Attorney General requesting assistance in this case. Nevertheless, the existence of that letter was not raised in the People's brief, and thus the argument that the letter establishes the Attorney General's authority to prosecute is not properly before us (see generally Kingsley v. Price, 163 A.D.3d 157, 164–165, 80 N.Y.S.3d 806 [4th Dept. 2018] ).
In light of our determination, we do not address defendant's remaining contentions.