Fourth Department – Special district attorney: People v. Callara

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Special district attorney — Jurisdiction

People v. Callara

KA 22-01541

Appealed from Orleans County Court

Background: The defendant appealed from his conviction of grand larceny and two counts of petit larceny. The charges were prosecuted by a special district attorney appointed by the county court following the disqualification of the elected district attorney for Orleans County. The defendant argues that the special district attorney lacked jurisdiction to present evidence to a grand jury, secure an indictment, and prosecute him on the indictment because the court exceeded its authority by appointing an attorney who did not live or maintain a law office in Orleans County or an adjacent county.

Ruling: The Appellate Division reversed and dismissed the indictment. The court held that Section 701(1) of the County Law explicitly limits the superseding authority of a court to appointing some attorney with an office in or residing in the county, or any adjoining county, to act as a special district attorney. As the court exceeded its authority, the indictment must be dismissed to preserve the integrity of a statute designed narrowly by its terms and by its purpose to fill emergency gaps in an elected prosecutorial official’s responsibility.

Kerry A. Conner, of the Legal Aid Bureau of Buffalo, for the defendant-appellant; Anthony M. Bruce, special prosecutor, for the respondent.

Oral argument video