52 A.D.2d 571 | N.Y. App. Div. | 1976
Proceeding pursuant to CPLR article 78 to prohibit respondents from taking any further proceedings against petitioner under Indictment SPO Q 24/1974. Petition granted and indictment dismissed, without costs or disbursements. Petitioner, an attorney, is charged, pursuant to an indictment obtained by the respondent Special Prosecutor, with bribery in the second degree and bribing a witness. It is alleged that petitioner was retained to represent a certain individual in a personal injury action which resulted from an automobile accident. The accident was investigated by Police Officer James Gaughan, among others. Gaughan subsequently filed an official police accident report. It is further alleged that petitioner offered Gaughan a sum of money to change his testimony in the civil action so that it would be favorable to petitioner’s client. Gaughan refused and apparently reported the bribe offer to the office of the Special Prosecutor. Thereafter, and acting in co-operation with the Special Prosecutor’s office, Gaughan met with petitioner again and accepted the proffered money. Petitioner urges that the Special Prosecutor has exceeded his jurisdiction in prosecuting him upon these allegations. The jurisdictional authority of the Special Prosecutor is contained in Executive Order No. 57 (9 NYCRR 1.57). The pertinent provision, paragraph (b) of section I, reads: "(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”. Petitioner contends that the Special Prosecutor is without jurisdiction to prosecute him pursuant to paragraph (b) because this case does not involve any "corrupt acts or omissions by a public servant” in that the public servant (the police officer) was merely feigning his willingness to be corrupted. It is asserted that paragraph (b) would permit the Special Prosecutor to prosecute persons who are not themselves public servants only when such person’s conduct arises out of, or relates to, corrupt acts committed by public servants. Petitioner previously moved to dismiss the indictment on the above-stated jurisdictional grounds. The late Mr. Justice Murtagh denied the motion on February 6, 1975. Petitioner thereafter moved to reargue. Mr. Justice Murtagh granted reargument, but adhered to his original determination, with leave to again move for reargument upon the trial. In his second decision, dated December 19, 1975, the Judge stated: "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.” Petitioner thereafter again moved to dismiss, that time before respondent Judge Jones, who is scheduled to try the case on April 5, 1976. After Judge Jones denied the motion on February 20, 1976, petitioner commenced the present proceeding. The Special Prosecutor initially argues that the claims raised by petitioner are not cognizable in a proceeding for a writ of prohibition. Specifically, it is asserted that it cannot be said that the Extraordinary Term of the Supreme Court is acting without or in excess of its jurisdiction in presiding at the