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THE ATTORNEY GENERAL DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT IN THIS CRIMINAL CASE BECAUSE NO REQUEST WAS MADE BY THE SUPERINTENDENT OF THE STATE POLICE (FOURTH DEPT).

The Fourth Department reversed defendant’s weapons possession and sale convictions because the state Attorney General did not have the authority to prosecute the case. The Attorney General’s authority to prosecute a criminal case is triggered when a request is made by the head of an appropriate agency, here the Superintendent of the State Police. No such request was in the stipulated record on appeal:

It is well settled that the Attorney General lacks general prosecutorial authority and has the power to prosecute only where specifically permitted by statute … . 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 … . 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” … . People v Wassell, 2019 NY Slip Op 03187, Fourth Dept 4-26-19

 

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