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At a Special Term Part A1 of the Supreme Court, State
of New York, held in and for the County of the Bronx,
located at the County Courthouse at 851 Grand
Concourse, Bronx, New York, on the 4 day of April,
1996.


PRESENT: Honorable  BURTON B. ROBERTS, Justice

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX: Trial Term Part


In the Matter of the Application of
ROBERT T. JOHNSON, as District Attorney of Bronx
County

Petitioner.

For an order pursuant to Article 78 of the Civil
Practice Law and Rules, and related relief, including
declaratory and injunctive relief

- against -

GEORGE E. PATAKI, as Governor of the State of
New York, and DENNIS C. VACCO, as Attorney
General of the State of New York,

Respondents.

Index No.1714-96

ORDER TO SHOW CAUSE


Upon the annexed petition of ROBERT T. JOHNSON,
District Attorney, Bronx County, verified by Robert T.
Johnson, and upon the annexed exhibits and
memorandum of law, and sufficient cause appearing
there from,

Let the respondents, George E. Pataki and Dennis C.
Vacco, show cause at Part A1 Room 625 of the Supreme
Court of the State of New York, County of Bronx,
located at 851 Grand Concourse, Bronx. New York, on
the 30th day of April 1996, at 2:00 o'clock in the
afternoon, or as soon as counsel can be heard,

Why an order should not be entered herein in the form
of mandamus, pursuant to CPLR Article 78, to compel
respondent Pataki to refrain from enforcing Executive
Order 27; in the form of prohibition, pursuant to CPLR
Article 78, to prohibit respondent Vacco from acting
under the order; pursuant to CPLR Section 3001
declaring the order unconstitutional; enjoining
respondents from enforcing or acting upon the order;
and, why the petitioner, Robert T. Johnson, should not
have such other and further relief as may be just, proper,
and equitable.

Sufficient reason appearing therefor, let service of a
copy of this order, together with the papers upon which
it was granted, upon the respondents' on or before the 23
day of April, 1996.

Enter,

J.S.C.

BURTON B. ROBERTS

TO:

Clerk
Supreme Court, State of New York
County of Bronx
851 Grand Concourse
Bronx, New York 10451

Hon. George E. Pataki
Governor
State of New York
2 World Trade Center
57th Floor
New York, New York 10047

Hon. Dennis C. Vacco
Attorney General
State of New York
120 Broadway, 24th Floor
New York, New York 10271



SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX

In the Matter of the Application of
ROBERT T. JOHNSON, as District Attorney of Bronx
County

Petitioner,

For an order pursuant to Article 78 of the Civil
Practice Law and Rules, and related relief, including
declaratory and injunctive relief

- against -

GEORGE E. PATAKI, as Governor of the State of
New York, and DENNIS C. VACCO, as Attorney
General of the State of New York,

Respondents.


VERIFIED PETITION


The Petition of ROBERT T. JOHNSON shows as
follows:


1. Petitioner is the District Attorney of Bronx County,
responsible for representing the People of the State of
New York in criminal prosecutions in Bronx County.

2. Respondent George E. Pataki is the Governor of the
State of New York. Respondent Pataki issued Executive
Order 27 (Exhibit 1) which instructs respondent Vacco
to supersede petitioner in the criminal prosecution
concerning the murder of New York City Police Officer
Kevin Gillespie.

3. Respondent Dennis C. Vacco is the Attorney General
of the State of New York. Respondent Vacco is
instructed by Executive Order 27 to supersede petitioner
in the criminal prosecution concerning the murder of
New York City Police Officer Kevin Gillespie.

THE MURDER IN THE FIRST DEGREE STATUTE

4. On March 7, 1995, the New York State Legislature
enacted a comprehensive set of statutes concerning
"Death Penalty -- Imposition and Procedures --
Assignment of Counsel." See 1995 N.Y. Laws, c. 1. This
statutory framework has been codified under various
provisions of New York Law. See, e.g. Penal Law
Sections 60.06, 125.27(1); CPL Sections 250.40, 400.27,
470.30; Judiciary Law Section 35-b; Executive Law
Section 63-d.

5. The statute requires the court to impose, upon a
defendant's conviction of Murder in the First Degree,
one of three possible sentences: imprisonment,
imprisonment for life without parole, or death. See Penal
Law Section 60.06. New York State law had not
previously permitted courts to sentence those convicted
of murder in the first degree to imprisonment for life
without parole or to death.

6. Under the statute, a court cannot impose a sentence
of death unless "the people file with the court and serve
upon the defendant a notice of intent to seek the death
penalty," see CPL Section 250.40(1), and further
provides that any such notice is to be filed within "one
hundred twenty days of the defendant's arraignment
upon an indictment charging the defendant with murder
in the first degree." See CPL Section 250;40(4).

7. The notice may be withdrawn at any time (thereby
eliminating the penalty of death as a sentencing option);
however, once withdrawn, the notice may never be
reinstated. See CPL Section 250.40(2).

8. Notwithstanding the notice provision, the People
may, at any time during the criminal action, determine
that the death penalty shall not be sought, in which case
the penalty may not be imposed. See CPL Section
400.27(1).

9. The statute specifies the circumstances under which
the Attorney General can enter a prosecution where "the
defendant may be subject to the penalty of death." See
Executive Law Section 63-d.

10. The statute makes no provisions about how a district
attorney is to determine whether to seek the death
penalty.

11. The Executive Memorandum, Sponsor
Memorandum, and legislative history that accompany the
statute are silent about how a District Attorney is to
exercise his or her discretion to seek the death penalty.

12. Respondent Pataki signed the statute into law on
March 7, 1995.

FACTUAL ALLEGATIONS

13. On March 7, 1995, petitioner, Robert T. Johnson,
issued a press release (Exhibit 2) in which he expressed a
number of concerns he had about the death penalty and
stated that "it is my present intention not to utilize the
death penalty provisions of the statute." Petitioner made
no statement about how he intended to deal with any
particular case in the future.

14. On November 2, 1995, petitioner was re-elected as
the District Attorney of Bronx County, New York,
receiving 89% of the vote. He originally had been elected
to the office in 1988 and was re-elected in 1991.

15. On December 19, 1995, Michael Vernon was
accused of killing five individuals in a shoe store in The
Bronx.

16. On December 20, 1995, respondent Pataki wrote to
petitioner stating that he had been informed that
petitioner did not intend to seek the death penalty in the
case, and asking "whether that determination was based
on a review of the specific facts in the exercise of your
professional discretion or reflects a policy decision not to
seek the death penalty in any case in Bronx County"
(Exhibit 3).

17. On December 20, 1995, petitioner declined to seek
the death penalty in the prosecution of Mr. Vernon,
responding to respondent Pataki, "I intend to meet my
constitutional and professional responsibility ... by
exercising my statutory discretion to seek a term of
incarceration of life imprisonment without the possibility
of parole" (Exhibit 4).

18. On December 20, 1995, respondent Pataki accepted
petitioner's decision with "grave reservations," noting, "I
am concerned that the laws of the state of New York may
not be so executed" (Exhibit 5).

19. On March 14, 1996, New York City Police Officer
Kevin Gillespie was  murdered in a shootout on the
Grand Concourse in The Bronx. Dressed in plain clothes,
Officer Gillespie and his partner came upon an apparent
carjacking, and attempted to arrest the perpetrators.
Officer Gillespie was gunned down while trying to effect
the arrest, and died a short time later.

20. On March 15, 1996, police officers arrested three
men in connection with the  brutal murder of Officer
Gillespie. One of the men was Angel Diaz, who has been
identified as the killer of Officer Gillespie.

21. On March 19, 1996, respondent Pataki wrote to
petitioner (Exhibit 6):

The facts developed to date have indicated that the case
is one in which the death penalty seems particularly
warranted: the crime was coldblooded, and the alleged
murderer has three prior felony convictions, two for
violent crimes, and was involved in yet another robbery
spree when he ruthlessly took Officer Gillespie's life.

The death penalty is the law in New York State and was
intended to apply in just the sort of circumstances
presented by the murder of Officer Gillespie....

I cannot permit any District Attorney's personal
opposition to a law to stand in the way of its
enforcement.... I must have your assurance that you do
not have a policy against seeking the death penalty....

I must ask the following question: are there
circumstances under which you will seek the death
penalty in Bronx County?

22. In this letter, respondent Pataki instructed petitioner
to answer his question by 1:00 p.m. the next day.

23. On March 20, 1996, petitioner responded (Exhibit
7):

The death penalty is no more the law of New York than
is the penalty of life without parole. The statute in no
way suggests that a sentence of death is the "better" or
"presumptive" choice....

I have not taken a "position in opposition to the death
penalty." Rather, I have enumerated concerns highlighted
by personal experiences about the use and application of
this option.

And, as you certainly know, my original statement --
made over a year ago, and repeated many time since and
still unchanged -- left the door ajar, however slight, to
exercise this option in The Bronx....

You know that by making the death penalty
discretionary the Legislature was giving District
Attorneys another tool, not an order to use it....

Because I wanted my constituents to know my concerns
about the death penalty option before they cast a vote to
re-elect me, you have seen fit to impose deadlines and
ultimatums on me ... and to ask me a question which you
have apparently not asked a single other District
Attorney....

Be assured, if you need to hear it, I will fully comply
with the oath and obligations of my Office.

24. On March 21, 1996, respondent Pataki issued
Executive Order 27, directing respondent Vacco to
supersede petitioner in the prosecution of the killers of
Officer Gillespie.

25. Respondent Pataki explained that he was acting
pursuant to Article IV, Section 3 of the New York
Constitution (which obliges the governor to take care to
ensure that the laws are faithfully executed) and
Executive Law Section 63(2) (which provides that the
attorney general shall, whenever required by the
governor, appear in the supreme court or grand jury for
the purpose of prosecuting a criminal action specified in
the requirement; and, that in such a case, the district
attorney exercises only those powers and duties required
of him by the attorney general). See N.Y. Cons. Art. IV
Section 3; Executive Law Section 63(2).

26. In Executive Order 27, respondent Pataki explained
that he was "compel[led]" to supersede petitioner because
the district attorney has adopted an "impermissible policy
not to seek the death penalty in any case," and because
petitioner had "refused expressly" to answer respondent
Pataki's questions concerning this alleged policy.
Respondent Pataki asserted that petitioner had violated
his "obligation to make informed, reasoned decisions on
a case-by-case basis," and had failed to establish "either
an internal review committee or guidelines for assessing
whether to seek the death penalty." Respondent Pataki
also reiterated that the instant case was one "in which the
death penalty is particularly warranted."

27. The executive order also provides, in accordance
with Executive Law Section 63(2), that all expenses
incurred by respondent Vacco in relation to the
prosecution are chargeable to the County of Bronx.

28. As of the date of respondent Pataki's issuance of
Executive Order 27, no indictment had been handed
down concerning the murder of Officer Gillespie.

29. As of the date of respondent Pataki's issuance of
Executive Order 27, no findings had been made
concerning the form or nature of the legal representation
and expert services to be provided to any of the
defendants, and no request for assistance had been made
by the District Attorney. See Executive Law Section 63-
d.

30. At a televised press conference on March 21, 1996,
respondent Pataki repeated his position that Mr. Diaz
should be sentenced to death for the murder of Officer
Gillespie.

31. On March 21, 1996, petitioner issued a statement
that although he disagreed with respondent Pataki's
decision to supersede him, and intended to challenge that
action in court, he was "putting those differences aside
while I work together with [respondent Vacco] in the
interests of justice" (Exhibit 8).

32. According to published reports, respondent Vacco
has expressed strong opinions in support of the
application of the death penalty in certain cases.

33. By an indictment filed on April 16, 1996, the Grand
Jury of Bronx County accused Angel Diaz of two counts
of Murder in the First Degree and related offenses;
accused Jesus Mendez of Murder in the Second Degree
and related offenses; and accused Ricardo Morales of
Murder in the Second Degree and related offenses
(Indictment Number 2483/96).

34. Defendants' arraignment is scheduled for April 30,
1996, in Part A-1 of the Supreme Court of the State of
New York, Bronx County.

35. For reasons fully set forth in the accompanying
memorandum of law, petitioner asserts that Executive
Order 27 is an unprecedented exercise of the governor's
superseder power; impermissibly substitutes respondent
Pataki's policy regarding the death penalty in place of the
policy duly chosen by the legislature; impermissibly
disenfranchises the independent executive power of
petitioner, an elected, constitutional officer;
unconstitutionally punishes petitioner for exercising his
First Amendment rights; denies petitioner the equal
protection of the laws; and, makes an impermissible end
run around the specific commands and policy concerns
enunciated in Executive Law Section 63-d.

36. No previous application for the relief herein prayed
for has been made.

37. An order to show cause is sought rather than
proceeding by notice of petition because such petition on
notice cannot, as per CPLR Section 7804(c), be made
returnable prior to the next scheduled adjourned dab in
this proceeding, and moreover, the petition contains
issues of grave import which require resolution as
expeditiously as possible.

WHEREFORE, petitioner respectfully requests that this
Court issue an order directing respondent Pataki and
respondent Vacco to show cause why an order should not
be entered herein in the form of mandamus, pursuant to
CPLR Article 78, to compel respondent Pataki to refrain
from enforcing Executive Order 27; in the form of
prohibition, pursuant to CPLR Article 78, to prohibit
respondent Vacco from acting under the order, pursuant
to CPLR Section 3001 declaring the order
unconstitutional; enjoining respondents from enforcing
or acting upon the order; and, for whatever additional
relief the Court deems appropriate under the
circumstances.

Respectfully submitted,

ROBERT T. JOHNSON
District Attorney
Bronx County
Petitioner


VERIFICATION

STATE OF NEW YORK

COUNTY OF BRONX

ROBERT T. JOHNSON, being duly sworn, hereby
states that he is the District Attorney of Bronx County,
aDd that he has read the foregoing petition, and it is true
to the knowledge of the deponent except as to matters
therein which are alleged on information and belief, and,
as to those matters, be believes them to be true.

ROBERT T. JOHNSON
District Attorney

Sworn to before me this 18, day of April, 1996


SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX

ROBERT T. JOHNSON, as District Attorney of Bronx
County,

Petitioner.

- against -

GEORGE E. PATAKI, as Governor of the State of
New York, and DENNIS C. VACCO, as Attorney
General of the State of New York,

Respondents.

MEMORANDUM OF LAW

Pursuant to Article IV, Section 3 of the Constitution
and Executive Law Section 63(2), the Governor has
ordered the Attorney General to appear in the Supreme
Court of Bronx County and its Grand Jury for the
purpose of prosecuting crimes arising from and related
to the killing of Police Officer Kevin Gillespie.

Article IV, Section 3 provides that the Governor "shall
take care that the laws are faithfully executed." N.Y.
Cons. Art. IV, Section 3. Executive Law Section 63 sets
forth the general duties of the Attorney General, and
Executive Law Section 63(2) provides that the Attorney-
General shall, whenever required by the Governor,
appear in the supreme court or grand jury for the
purpose of prosecuting a criminal action specified in the
requirement; in such a case, the District Attorney
exercises only those powers and duties required of him
by the Attorney General. Executive Law Section 63(2).

Executive Order 27 must be invalidated. It is an
unprecedented exercise of the governor's superseder
power; impermissibly substitutes respondent Pataki's
policy regarding the death penalty in place of the policy
duly chosen by the legislature; impermissibly
disenfranchises the independent executive power of
petitioner, an elected, constitutional officer;
unconstitutionally punishes petitioner for exercising his
First Amendment rights; denies petitioner the equal
protection of the laws; and, makes an impermissible end
run around the specific commands and policy concerns
enunciated in Executive Law Section 63-d.

A. This Court has the Power to Grant the Requested
Relief

This is an action brought to obtain a declaration that
Executive Order 27 is unconstitutional, see CPLR
Section 3001, to obtain relief in the nature of mandamus
to compel the Governor to refrain from acting on the
order, see CPLR Section 7803(1), and to prohibit the
Attorney General from acting under the order, see
CPLR Sections 6301; 7803(2). In short, Executive Order
27 must be declared an unconstitutional arrogation of
power by the Governor; the Governor must be
compelled to abandon enforcement of this order and all
attempts to enforce it must be prohibited; and the
Attorney General, as designee directed to enforce this
order, must be enjoined from further compliance with it.

CPLR authorizes the declaratory judgment action in
New York, allowing the court to declare "the rights and
other legal relations of the parties to a justiciable
controversy." CPLR Section 3001. This action is
properly invoked to attack unconstitutional and otherwise
illegal acts of the Governor. see, e.g., Klostermann v.
Cuomo, 61 N.Y.2d 525 (1984) (remedies of declaratory
judgment and mandamus available in actions by mental
patients in state institutions whose constitutional and
statutory rights have been violated by failure of state to
provide appropriate residential placement); Matter of
Fullilove v. Carey, 62 A.D.2d 798 (3d Dept. 1978),
aff'd, 48 N.Y.2d 826 (1979) (declaring executive order
providing that all state contractors undertake affirmative
action programs, to be an unwarranted and unauthorized
exercise of legislative power by the Governor and
therefore "unconstitutional and unenforceable"); Rapp v.
Carey, 58 A.D.2d 918, 919 (3d Dept. 1977), aff'd. 44
N.Y.2d 157 (1978) (declaring executive order to be
void, unconstitutional, and unenforceable, and further
declaring that "no persons covered by the Executive
Order need comply with such Order"); Morgenthau v.
Erlbaum, 59 N.Y.2d 143 (1983) (declaratory judgment
available to challenge the propriety of an interlocutory
order in a criminal proceeding even though a writ of
prohibition pursuant to CPLR Section 7803 was not).

Coercive remedies, such as a writ of mandamus to
compel, lie against the Governor and may be employed
in conjunction with the declaratory judgment. See
County of Broome v. Cuomo, 102 A.D.2d 266 (3d Dept.
1984) (affirming lower court's judgment directing
Governor to comply with State Law Section 10), aff'd,
64 N.Y.2d 1051 (1985); see also County of Fulton v.
State of New York, 76 N.Y.2d 675 (1990) (mandamus
lies to direct state to pay local real estate taxes);
Klostermann, 61 N.Y.2d at 539 (writ of mandamus lies
in conjunction with declaratory judgment).

Nor can there be any doubt that the remedies of
prohibition and injunction lie against respondent Vacco
on these facts. See Matter of Schumer v. Holtzman, 60
N.Y.2d 46 (1983); Matter of Johnson v. Collins, 210
A.D.2d 68 (1st Dept. 1994); Ithaca Journal News v. City
Court of Ithaca, 58 Misc. 2d 73 (Sup. Ct., Tompkins
County 1986).

Finally, as the elected representative of the people of
Bronx County, the District Attorney has standing to
assert their rights in this matter as well. See Matter of
Brodsky v. Zagata, 165 Misc. 2d 510, 511 (Sup. Ct.,
Albany County 1995).

In sum, in the context of an application for a judgment
declaring executive action invalid, together with
ancillary injunctive relief, the courts' jurisdiction to
resolve disputes relating to the proper scope of the
executive power is unquestioned. See Bourquin v.
Cuomo, 85 N.Y.2d 781, 784-85 (1995); Clark v. Cuomo,
66 N.Y.2d 185, 186-87, 189-90 (1985); see also CPLR
Section 3017(b).

B. The Governor's Present Use of the Superseder
Power Embodied in Executive Law Section 63(2) is
Unprecedented.

No New York governor has superseded a district
attorney in a criminal prosecution based on a
disagreement over whether to seek a particular sentence.
No New York governor has superseded a district
attorney where there was no fundamental question as to
the district attorney's capacity and willingness to
prosecute a defendant for the appropriate crime and to
obtain a valid judgment of conviction. These historical
facts place in stark relief the radical nature of the
Governor's action.

Prior governors used the power of superseder in
extraordinary circumstances, where there was proof that
the district attorney harbored a fundamental inability or
unwillingness to perform the duties of the office. See,
e.g., Dondi v. Jones, 40 N.Y.2d 8, 15-16 (1976)
(superseder used, to investigate corruption in
enforcement of law and administration of criminal
justice by County officers); In Re B. Turecamo
Contracting Co. v. Bennett, 260 A.D. 253, 254 (2d Dept.
1940) (superseder used to investigate misconduct in
enforcement of law in Kings County), lv. denied, 259
A.D. 1094 (1940); Berger v. Carey, 86 Misc. 2d 727,
728 (Sup. Ct., Suffolk County 1976) (district attorney
superseded "for a particular purpose and at his own
request").

For over one-hundred years, governors have
understood the need to use superseder power judiciously
and appropriately. Governor Flower recognized the
"radical nature" of the superseder power which should
be "conservatively exercised"; he thus opined that the
district attorney should be superseded only where his
"integrity or ability" had been impugned. 1894 Public
Papers of Governor Flower 597-98, 613.[1]

Governor Smith stated in 1919 that the power of
superseder "should be exercised ... only when the
Governor is satisfied beyond question that the interest of
the public demand such exercise, and when the Governor
is satisfied beyond question that the district attorney is
either disqualified or is wil[l]fully neglecting to perform
his duty, or is guilty of corrupt or illegal conduct." 1919
Public Papers of Governor Smith 331. Governor
Franklin Roosevelt underscored that intervention was
appropriate only when allegations of wrongdoing were
specific and reliable: "action by state authorities must be
predicated on definite allegations relating to local
misgovernment and on definite allegations relating to the
failure of local investigations." 1930 Public Papers of
Governor Roosevelt 375.

Governor Dewey remarked that the "action displacing a
local official, particularly an elected one, by a state
representative is not to be resorted to unless there is
compelling evidence that the existing agencies are not
performing or are incapable of performing their proper
functions." 1945 Public Papers of Governor Dewey 369.

In this case, the Governor superseded the District
Attorney solely on the grounds that he believed that the
District Attorney's public statements and acts indicated
an unwillingness to seek a specific sentencing option.
This unprecedented action creates a fault line between
present and past uses of the superseder, and demands the
interest and scrutiny of all New Yorkers.

C. The Governor's Executive Order Impermissibly
Substitutes His Own Policy Regarding the Death Penalty
in Place of the Statutory Scheme Set Forth by the
Legislature.

The Governor's order should be invalidated because it
is an impermissible intrusion on the exclusive power of
the legislature to enact and establish legislation.

In Mulroy v. Carey 43 N.Y.2d 819 (1977), the Court of
Appeals upheld an Appellate Division opinion which
itself upheld an executive order made pursuant to
Executive Law Section 63(2), superseding the district
attorney with the attorney general for the purpose of
investigating improprieties in obtaining public offices
and contracts in Onondaga County. See Mulroy, 43
N.Y.2d at 821, affirming, 58 A.D.2d 207 (4th Dept.
1977).

The Court, however, expressly declined the concurring
justice's invitation to declare that no restrictions of any
kind limited the governor's power to supersede the
district attorney, and in fact expressed "no view" as to
whether "in any and all circumstances" the executive
power to supersede an "elected District Attorney" would
be beyond judicial correction. See Mulroy, 43 N.Y.2d at
821.

The instant order presents a situation where judicial
correction is warranted, because it marks the case as one
in which the Governor is creating law rather than
enforcing it. As the discussion below will prove, here,
the Governor has invented legal obligations for the
District Attorney which are contrary to the express
obligations set forth in the first-degree murder statute,
and then used noncompliance with these nonexistent
obligations to accuse the District Attorney of
wrongdoing and remove him from the case. Such an
exercise of unbridled power, with its accompanying
intent to direct the outcome of future first-degree
murder prosecutions throughout the state, comes at the
direct expense of the legislature, and must be checked by
the judiciary.

An examination of the Governor's order shows that the
Governor's "reason" for superseding the District
Attorney is so hollow as to be no reason at all. The
Governor explains that he is "compel[led]" (p. 4) to
supersede the District Attorney because the District
Attorney has adopted an "impermissible policy not to
seek the death penalty in any case," and because the
District Attorney has "refused expressly" to answer the
Governor's questions concerning this alleged policy (p.
3). More specifically, he notes that the District Attorney
has violated his "obligation to make informed, reasoned
decisions on a case-by-case basis" (p. 2). Particularly
notable is the Governor's observation that the District
Attorney has never "asserted that he has established
either an internal review committee or guidelines for
assessing whether to seek the death penalty" (p. 4). Also
disturbing is that the order labels the instant case as one
"in which the death penalty is particularly warranted" (p.
3), notwithstanding the fact that at the time the Governor
issued the order, no defendant had yet been indicted for
first-degree murder.

While the purpose of a memorandum of law should not
be to convince this Court that the Governor has
misconstrued the public statements and private sentiments
of the District Attorney, it must nevertheless be made
clear that the District Attorney of Bronx County has
never stated that he would never, under any
circumstances, file a notice of intent to seek the death
penalty.2 Instead, he has repeatedly stressed that he will
abide by his oath of office, which requires him
"faithfully to prosecute a person charged with the
violation in his county of any [offense]." See N.Y. Cons.
Article 13, Section 13; County Law Section 700.
Furthermore, it bears noting that not even the Governor
has suggested that the District Attorney did not intend to
prosecute the defendants for the appropriate crimes;
rather, the Governor's action appears to be self-justified
by his opinion that the District Attorney is unwilling to
consider a specific sentencing option.

One galling irony requires special attention. The
Governor's executive order insinuates that the District
Attorney has a blanket policy against seeking the death
penalty; that is, that the District Attorney will not
consider seeking the penalty on a case-by-case basis (p.
2). Obviously, as support for this conclusion, the
executive order lists that the District Attorney
"precipitously announced" that he would not seek the
death penalty in a December 1995 prosecution and six
other prosecutions (p. 2). The Governor's analysis is
self-defeating: if the District Attorney actually had a
blanket policy against seeking the death penalty, there
would be no need to "announce" (precipitously or
otherwise) his intent to seek it in any given case. The
exercise of particularized decisions cannot possibly be
evidence of the existence of a blanket policy, and the
governor's reliance to the contrary disproves his own
argument. Further, it is equally ironic that, while the
executive order decries the speed with which past
announcements not to seek the death penalty were made,
the Governor gives as a reason for superseder that the
District Attorney has refused to answer (in a manner
deemed acceptable by the Governor) a question designed
to elicit a decision in the instant murder case far in
advance of the one-hundred and twenty day deliberative
period provided by the legislature. See CPL Section
250.40(2).

The crux of the Governor's impermissible policy-
making is found in his recitation that the first-degree
murder statute "requires that District Attorneys
determine whether to seek the imposition of the death
penalty after making informed, reasoned decisions on a
case-by case basis" (p. 2). While undoubtedly most
district attorneys (including the District Attorney of
Bronx County) will follow such a practice, it is
inaccurate to say that the statute "requires" such a
process, when it plainly says nothing about how the
decision is to be made. In addition, the Governor's order
contains a host of subsidiary policy-related dictates which
are troubling: his zeal to label cases death penalty cases
even before an indictment has been obtained; his decision
to make a District Attorney's fitness for prosecution
contingent on the Governor's belief as to what sentencing
option the District Attorney will or will not seek; his
demand that a District Attorney publicly announce his
intentions with respect to the sentencing option, even
before an indictment has been obtained3; and, his
intimidating venture into the internal workings of the
office of the District Attorney, a venture which is
embedded in his implicit call for an "internal review
committee or guidelines."

Any one of these "reasons" for superseding the Bronx
District Attorney could be labeled an impermissible
foray into legislative policy making; taken together,
however, only one conclusion is possible: that the
Governor seeks to use the power of his office to impose
on prosecutors throughout the state his beliefs as to the
appropriateness of the death penalty, both in general, and
in any given case.4  By superseding the District Attorney
based on policy considerations wholly foreign to the
relevant legislation, the Governor has exceeded his
powers. See Broidrick v. Lindsay 39 N.Y.2d 641, 645-
46 (1976) (governor may not create policy under the
guise of enforcement); Boreali v. Axelrod, 71 N.Y.2d 1,
9, 12 (1987) (executive branch may not use its authority
as a license to correct whatever societal evils it perceives,
and may not execute legislation in such a way as to act
solely upon the executive's own ideas of sound public
policy).

Taken as a whole, the Governor's "reasons" amount to
one super-policy which the Governor clearly would like
to see added to the first-degree murder legislation: that
the penalty of death should presumptively be sought in
every first-degree murder case, or at least in every first-
degree murder case involving the killing of a police
officer; and that the presumptive nature of the
punishment should lead prosecutors to declare their
intention to seek the penalty at the earliest possible point
in time, perhaps even before the suspect has been
indicted for capital murder.

Contrary to the purpose and effect of the Governor's
instant executive order, nothing indicates that the first-
degree murder legislation intended to give the Governor
the power to direct the discretion of the district
attorneys, or to require the district attorneys to engage in
any particular process (or any process at all) with respect
to implementation of this sentencing option. To the
contrary, before the statutes were enacted, one of the
chief legislative sponsors of the first-degree murder bill,
Assemblyman Vitaliano addressed the concern that
"district attorneys in the City of New York have spoken
that they are against the death penalty," by answering
that "nothing ... obliges a district attorney to seek the
death penalty under this bill." See N.Y. Assm. Rec. A.
4843, at 413-14 (colloquy of Ms. Clark and Mr.
Vitaliano). The clear import of these words is that
nothing obliges a district attorney ever to seek the death
penalty.

In keeping with Assemblyman Vitaliano's opinion, no
statute passed by the legislature explicitly or implicitly
requires the prosecuting attorney to make an informed,
reasoned, case-by-case decision whether to seek the death
penalty. The Governor's discussion of the need for an
"internal review committee or guidelines" (p. 4) is even
farther from any arguable legislative decree. The
Governor is faulting the District Attorney for failing to
perform an act which the legislation neither requires him
to do nor expects him to do.

Indeed, to the extent that the legislation expresses any
preference for "seeking" the death penalty, the
preference is clearly a negative one. The authorized
punishments for first-degree murder are a sentence of
death, life imprisonment without parole, or a term of
imprisonment. See Penal Law Sections 60.06; 125.27; No
preference for the death sentence is expressed. To the
contrary, the preference implied is otherwise because,
unlike any other penalty, the district attorney must
timely file a written notice of an intent to seek the death
penalty before it can ever be imposed. Further, while
this notice can be withdrawn at any time, once
withdrawn, it can never be reinstated. See CPL Section
250.40; see also CPL Section 400.27(1) ("nothing. . shall
be deemed to preclude the people at any time from
determining that the death penalty shall not be sought in
a particular case"). None of these provisions are required
to be in a "death penalty statute," yet each-presents a
substantial obstacle to the "seeking" of the death penalty.

In addition, once the death sentence is imposed, the
statute continues its negative preference: the Court of
Appeals is given plenary interest of justice jurisdiction to
reverse the sentence. See CPL Section 470.30(1)
(granting to Court of Appeals power, normally vested
only in intermediate appellate courts, to reverse sentence
in the interest of justice pursuant to CPL Section
470.15); see also Correction Law Section 655 (giving
governor power of reprieve).

In sum, the "death penalty statutes" are silent as to the
means by which this sentencing option is chosen, and
repeatedly insistent that it may be abandoned at any time,
and without any enunciated reason.5

The legislature could have included in the first-degree
murder statutes the obligation that district attorneys must
make informed, reasoned, case-by-case decisions about
whether to seek the death penalty on the basis of specific
factors (indeed, the legislature could have limited the
district attorney's discretion and required that the death
penalty must be "considered" in every possible case).6
The legislature has, in the past, exercised its power to
direct the form and content of discretionary acts related
to sentencing; however, such an exercise of legislative
power is clear and forthright. See, e.g., Penal Law
Section 70.02(2)(c)(i) (upon conviction for certain
offenses, court must impose indeterminate sentence or a
definite sentence of at least one year, unless court finds
"on the record" that sentence would be unduly harsh, and
that alternative sentence is "consistent with public safety
and does not deprecate the seriousness of the crime");
Penal Law Section 70.06(7), CPL Section 410.91(3)
(court may sentence certain defendants to parole
supervision instead of term of imprisonment, upon
making certain specified findings); CPL Section
210.40(1), (3) (directing that trial court, before
dismissing a count of an indictment, or the indictment
itself, must "examine and consider, individually and
collectively" a set of ten listed factors, and, further, that
it "must set forth its reasons therefor upon the record").

Similarly, the legislature could have mandated that
district attorney state reasons for seeking the death
penalty either in general, or in a particular case, or both.
The legislature could also have directed that district
attorneys establish an "internal review committee or
guidelines" to make such decisions. Instead, the
legislature simply presented the death penalty as a single
sentencing option, while at the same time surrounding it
with provisions which serve as practical barriers to its
selection, regardless of whether or not the option is
considered in an informed, reasoned, case-by-case basis;
regardless of whether the district attorney formulates or
expresses any office policy as to the death penalty; and,
regardless of whether the District Attorney creates an
internal review committee.

For his part, the Governor is strictly prohibited from
using Executive Law Section 63(2) to engraft a new
policy upon that of the legislature. See Broidrick v.
Lindsay, 39 N.Y.2d 641, 645-56 (1976) (while executive
is accorded flexibility in determining the proper methods
of enforcing legislative policy, a flexibility which varies
according to the nature of the problem to be remedied,
governor may not create a different policy under the
guise of enforcement); see also Rapp v. Carey, 44
N.Y.2d 157, 163 (1978) (where it would be practicable
for the legislature itself to set precise standards, the
executive's flexibility is and should be quite limited); see
generally Boreali v. Axelrod, 71 N.Y.2d 1, 9, 12 (1987)
(executive branch may not use its authority as a license to
correct whatever societal evils it perceives).

Indeed, the instant executive order is readily
distinguishable from the one recently upheld by the
Court of Appeals for the exact reason that the latter did
not "formulate a specific policy" or assume a
"substantive content." See Bourquin v. Cuomo, 85
N.Y.2d 781, 787 (1995); see also People ex rel. Saranac
Land & Timber Co. v. Extraordinary Special and Trial
Term of Supreme Court. 220 N.Y. 487, 491-92 (1917)
(noting that the executive proclamation creating special
trial terms is permissible because it did not attempt to
direct any specific outcomes, but simply created a forum
for review).

The Governor is employing Executive Law Section 63(2)
to create at least one, or more, specific policies which the
legislature did not include in its enactments. Moreover, it
seems clear that the Governor's ultimate goal is to
establish the death penalty as the presumptive punishment
for first-degree murder cases.7  The Governor's use of
Executive Law Section 63(2) to achieve these objectives
is impermissible and must be invalidated.

A final note is warranted concerning the Governor's
assertion in his executive order that superseder is
necessary because he seeks to avoid the possibility that
future sentences of death would be invalidated as
"disproportionate to the penalty imposed in similar
cases" (p. 2). This proportionality argument is given
separate treatment here because, on its face, it appears to
be a legitimate reason for superseder: certainly one
district attorney could not be permitted to dismantle an
entire statutory scheme, any more than one governor
could be permitted to create one. When scrutinized,
however, the governor's proportionality argument
proves without foundation.

First, no defendant has been convicted of first-degree
murder, and no death penalty has been imposed
anywhere in the state. There is no assurance that a court
or a jury will ever impose the sentence, or that an
imposed sentence would, notwithstanding any
proportionality claim, withstand direct of collateral
review by state or federal appellate courts.

Second, while the statute calling for proportionality has
never been interpreted, it would appear that its prime
objective is to ensure proportional treatment across
racial lines. See CPL Section 470.30(3)(b).[8] Racial
fairness being the only enumerated factor, it is
premature for the Governor to assume that even a
"blanket policy" against the death penalty existing in
some counties will become a factor in this analysis.
Indeed, the fact that a local district attorney may elect to
extend mercy to first-degree murderers would seem
fundamentally unrelated to the concept of proportionality
and to the legislature's call for proportional treatment in
"similar cases." See CPL Section 470.30(3)(b).[9] Ex
ante, there is reason to believe that the concept of
proportionality will, within the meaning of New York
law, not take cognizance of a district attorney who
refuses to seek the death penalty. For example,
proportionality could apply only to counties which have
not excluded themselves from seeking the death penalty.
This result seems likely given not only the legislature's
negative inference against the imposition of the death
penalty generally, but also the express statement by one
of the legislation's chief sponsors, that nothing in the
laws obligates a district attorney to seek the death
penalty. See N.Y. Assm. Rec. A. 4843, at 413-14.

Third, recent reports indicate that any proportionality
argument would face grave independent obstacles
because no organization is tracking the total number of
eligible murder offenses. See Edward A. Adams, No
Data Kept on All Eligible Capital Cases. N.Y. Law J.,
April 1, 1996, at 1, colt 3. While any analysis of the
proportionality issue is premature, it would seem certain
that a proportionality-based attack on the first-degree
murder statute would, almost by definition, involve a
statistical analysis of the sentences imposed in eligible
cases. In that it appears that no reliable data is being
gathered to permit this analysis, the Governor's concern
about proportionality passes from the premature into the
fanciful. If the Governor were primarily concerned with
proportionality, his first step would not be to supersede a
local district attorney, but, rather, it would be to
establish an apparatus to gather useful data. Thus, while
the Governor's proportionality argument may have some
superficial appeal, it proves, upon analysis, to be weak
and speculative.10

In conclusion, it cannot be doubted that the Governor
has invested a great deal of effort into bringing the death
penalty back to New York. See, e.g., 1995 Governor's
Annual Message to the Members of the Legislature, cited
in McKinney's Session Law News of New York, April
1995, No. 1, at A-27 ("As for criminals who commit the
ultimate crime, the crime of murder, they should expect
to be punished by the ultimate sanction, the death
penalty"); see also Executive Memoranda accompanying
L. 1995 c. 1, cited in McKinney's Session Law News of
New York, April 1995, No. 1, at A-35 ("For eighteen
years the legislature overwhelmingly supported capital
punishment.... That long journey is now over").
Unfortunately for the Governor, the "long journey" has
not ended at the place where the Governor believes it
has. Now, this Court must correct the Governor's view
of the first-degree murder statutes by protecting the
accuracy of the statutes actually enacted into law.

D. The Governor's Executive Order Impermissibly
Invades the Independent Executive Power of the District
Attorney, an Elected, Constitutional Office.

The judiciary is bound to enforce the balance of power
between the branches of government. See, e.g., Bourquin
v. Cuomo, 85 N.Y.2d 781 (1995). It should be similarly
bound to enforce the balance of power between
independent executive sub-branches, namely between the
governor (a constitutional, elected officer) and the
district attorney (a constitutional, elected officer).

Therefore, even if this Court determines that Executive
Order 27 does not wrongfully impinge on the legislative
prerogative, it should nevertheless invalidate the order
on the ground that it violates the independence of the
District Attorney. Cf. Mulroy v. Carey, 43 N.Y.2d 819,
821 (1977) (declining to hold that Executive Law Section
63[2] imposes no limits on the governor's power to
supersede a district attorney).

A brief history of the powers of the attorney general
and of the district attorney will show the district
attorney's evolution from an appendage of the attorney
general into a freestanding office of independent power;
simultaneously, it will show the rise of restrictions on the
power of the attorney general to engage in criminal
prosecutions and, necessarily, on the power of the
governor to direct the attorney general to supersede the
district attorney pursuant to Executive Law Section
63(2). The conclusion to be reached is inescapable: as an
elected, constitutional officer, the district attorney
possesses a zone of independence which the governor
must respect, and which the courts must protect.

1. The historic powers of the attorney general

In ancient England, the attorney general, as the
representative of the sovereign, possessed the exclusive
power to prosecute criminal offenses. In the English
colony of New York, the attorney general was modeled
on the English office, and was designated by the English
governor. People v. Kramer, 33 Misc. 209, 213 (Ct. of
Gen. Sessions, New York County 1900).

New York State's first constitution, enacted in 1777,
made no provision for an attorney general, although the
office was filled upon an appointment by the
constitutional convention. Thus, as of 1777, the attorney
general was the only officer who could represent the
People in prosecuting crime in the State of New York.
The attorney general remained the sole state officer
assuming the common law role of the People's
representative in criminal prosecutions until 1796. Id., at
213-14.

The first forerunner of Executive Law Section 63(2) is
found in the Laws of 1796, which created the office of
assistant attorney general to relieve the attorney general
of the obligation of personally attending all criminal
prosecutions in the State of New York (L. 1796 c. 8).
Specifically, the Legislature provided for the
appointment of assistant attorneys general to take charge
of prosecutions in districts outside New York City, and
namely in prosecutions in the courts of oyer and
terminer and general sessions.11 Kramer, 33 Misc. at
214. The attorney's general personal attendance could
nevertheless be required by the governor, or by a judge
of the supreme court. Kramer. 33 Misc. at 214 (citing L.
1796 c. 8). It has been observed that the assistant
attorney generals were the "prototype" of the later-
created district attorneys. Their powers in no way
detracted from the plenary power of the attorney
general. Kramer, 33 Misc. at 214; see also People v.
Tru-Sport Pub. Co., Inc., 160 Misc. 628, 637, 639 (Sup.
Ct., Saratoga County 1936) (the rise of the office of
district attorney is traceable as the outgrowth of the early
offices of assistant attorney general; historically, district
attorney is an assistant to the attorney general; attorney
general has not been shorn of any ancient powers).

The office of the district attorney was created by statute
in 1801 (L. 1801 c. 146). Kramer. 33 Misc. at 214. As
before, the law provided that the "person administering
the government of this State, or any judge of the
supreme court" could compel the attorney general's
personal appearance notwithstanding the attendance of
the district attorney. Kramer' 33 Misc. at 214 (quoting
L. 1801 c. 146). In such a situation, the function of the
district attorney was to aid the attorney general in
prosecuting the case. Kramer, 33 Misc. at 215. See
generally Tru-Sport. 160 Misc. at 637-39 (the
establishment of the office of district attorney is
traceable to the growth of population and the
development of settlement and industry throughout the
far flung portions of the state; fundamentally, the district
attorney is a state officer, performing a state function
within the district or county, and taking the place of the
attorney general, upon whom at the outset these duties
have been laid) (citing Spielman Motor Sales Co., Inc., v.
Dodge. 295 U.S. 89, 92 [1935]).

The 1801 statute continued to evolve, but did not
fundamentally change.12   In 1951, Executive Law of
1951, Article V, Section 63(2) was enacted (L. 1951 c.
800). This section remains in force today, unchanged
since 1951.

2. The creation of the district attorney as a
constitutional officer

The office of the district attorney was first
constitutional) recognized in 1821. The constitution
mandated that district attorneys be appointed by the
county courts, rather than appointed by the governor.
See N.Y. Cons. 1821 Article 4 Section 8; Robert M.
Pitler, Superseding the District Attorneys in New York
City-- The Constitutionality and Legality of Executive
Order No. 55, 41 Fordham L. Rev. 517, 520 (1973);
Lawrence T. Kurlander and Valerie Friedlander,
Perilous Executive Power-- Perspective on Special
Prosecutors in New York. 16 Hofstra L. Rev. 35, 42
(1987). Certainly, providing for the district attorney's
appointment by the court, rather than by the governor,
marks the first separation of power between the district
attorney and the governor (along with the attorney
general), and represents the beginning of the district
attorney's independence from the governor and the
attorney general.

The constitution of 1846 provided for the election of a
district attorney, but made no mention of the office's
duties or powers. See N.Y. Cons. 1846 Article 10
Section 1; Kurlander, p. 42; Kramer. 33 Misc. at 214-15.
Relatedly, the Constitution of 1846 made the attorney
general an elected, state-wide official, and expressly
provided that the office should have the duties then in
effect. Kurlander and Friedlander, supra. at 42-43;
Kramer. 33 Misc. at 21315.

Initially, courts considered the constitutional status of
the district attorney to be meaningless; in other words,
notwithstanding his constitutional status, the district
attorney remained an appendage of the attorney general,
in whom the plenary power to prosecute all crimes still
resided. See, e.g., People ex. rel. Gardenier v. Board of
Supervisors of the County of Columbia. 134 N.Y. 1, 5
(1892) (the fact that the office of the district attorney has
become a constitutional one "adds nothing to the nature
and extent of [its] powers"); People v. Brennan, 69 Misc.
548, 548-49 (Kings County Ct. 1910) (attorney general
has retained all of that office's common law powers).

In a series of cases in the 1940s, however, the power of
the attorney general to prosecute crimes, as identified in
Executive Law Section 63(2), came to be interpreted in a
different manner. The attorney's general power was seen
to be dormant; it could not be self-activated, and waited
upon the governor's activation through Executive Law
Section 63(2). Moreover, once called upon, the attorney
general wielded not the common law plenary power, but
instead only the authority conferred by the governor's
order. See, e.g., People v. Goonan, 265 A.D. 973 (2d
Dept. 1942); People v. Hopkins, 182 Misc. 313, 314-17
(Ct. of Gen. Sessions, New York County 1944); People
v. Dorsey, 176 Misc. 932, 937-38 (Queens Count Ct.
1941); Matter of Cranford Material Corp., 174 Misc.
154, 158-60 (Sup. Ct., Kings County 1940).

The inevitable conclusion followed: the attorney
general's common law powers were abrogated, limiting
that office to its constitutional and statutory powers. In
the criminal realm, the attorney general could extend
those powers only as specifically directed by the
governor and the legislature; the plenary power of the
attorney general as an agent of the sovereign was now
extinguished. See People v. Goldswer, 78 Misc.2d 910,
913 (Schoharie County Ct. 1974) (power of attorney
general to prosecute any criminal offense in any court
has been specifically restricted by statute, and may be
exercised only when the conditions precedent as
described in the legislation are fulfilled); see also
Dorsey, 176 Misc. at 938 (powers of attorney general
are only those granted by state constitution and
enactments of legislature); Additional Jan. 1979 Grand
Jury of the Albany Supreme Court v. Doe. 50

N.Y.2d 14, 18 (1980) (grant of authority to attorney
general pursuant to Section 63[2] extends only to those
matters set forth in the governor's order); Dondi v.
Jones. 40 N.Y.2d 8, 19 (1976) (same).

Necessarily, the district attorney became the beneficiary
of the attorney general's loss of power. See, e.g., Matter
of Cranford, 174 Misc. at 159 (noting that there is no
longer any general legislative recognition of any assistant
relationship of the district attorney to the attorney
general). Notably, the Supreme Court of Pennsylvania
has abandoned the view that the attorney general's
historical common law powers over district attorneys has
survived the creation of the district attorney as an
independently elected, constitutional officer.
Pennsylvania v. Schab, 477 Pa. 55, 383 A.2d 819, 822
(1978) ("It would be incongruous to place the district
attorney in the position of being responsible to the
electorate for the performance of his duties while actual
control over his performance was, in effect, in the
Attorney General.")

Presently, the Constitution provides for the election,
term of office, grounds and procedure for removal, and
oath of office for the office of district attorney. See New
York Constitution Article 13 Sections 1, 13. The County
Law charges the district attorney with the duty to
prosecute crimes within the jurisdiction of the county for
which he or she has been elected. See County Law
Section 700, 927.

3. The district attorneys zone of independence

While courts have noted the elected, constitutional status
of the district attorney, see, e.g., Drake v. City of
Rochester, 96 Misc. 2d 86, 94 (Sup. Ct., Monroe County
1978), aff'd, 74 A.D.2d 996 (4th Dept. 1980), the
office's independent status has never been precisely
delineated. Still, a number of cases indicate that the
district attorney possesses a zone of independence which
must be respected by the governor and protected by the
courts.

First, Mulroy v. Carey, 43 N.Y.2d 819 (1977), affirms
that the district attorney may state a claim for relief in
challenging the governor's superseder order (even
though the claim was rejected in the case). See Mulroy,
43 N.Y.2d at 821. The district attorney's ability to state a
claim proves that the office is no longer simply an
appendage of the attorney general. If the district attorney
possessed no independent powers, he would not have had
the right to sue to protect them. Second, Mulroy is
significant because it expressly mentions the "elected
District Attorney." Mulroy, 43 N.Y.2d at 821 (emphasis
added). While saying no more on the matter, the Court's
recognition of the district attorney as an elected
representative of the county is a tacit, albeit undeveloped,
acknowledgment of independence.

A number of other cases also point to the district
attorney's autonomy as derived from his status as an
elected constitutional officer. In People v. Jackson. 48
N.Y.S.2d 401 (Kings County Ct. 1944), the court
invalidated as unconstitutional a statute which provided
that an assistant district attorney would assume the duties
of office since the district attorney had left the county
for military service. Jackson, 48 N.Y.S.2d at 404-06.
The court found that the statute impermissibly sought to
create a second office of district attorney, an act
prohibited by the constitution's provision for only one
district attorney per county. The court further noted that
the powers and duties inhered in the office itself, to be
performed by the one chosen for that purpose under the
constitutional authorization. See Jackson, 48 N.Y.S.2d at
405 06. Similarly, in People ex rel. Eldred v. Palmer,
154 N.Y. 133 (1897), the court declared unconstitutional
a law which retroactively altered the term of office of an
already elected district attorney, noting, "it would be
contrary to all precedent that the electors should not be
advised, before casting their votes, of the duration of the
term of the officers to be elected," and further noting
that the legislature was prohibited from shortening the
length of term of an elected, constitutional officer under
circumstances "wholly foreign" to the "true interests" of
the electorate. See Eldred, 154 N.Y. at 139. Both these
cases indicate that the district attorney's independence
springs from this constitutional status, and from the "true
interests" of his or her constituency. Both of these
decisions cast light on the significance of Mulroy's
attachment of the word "elected" to the office of the
district attorney.

The case of People ex rel. Wogan v. Rafferty, 208 N.Y.
451 (1913) is distinguishable from the instant one, in that
it involves a power struggle between the county clerk, an
elected constitutional officer, and the legislature;
however, its analysis is highly relevant to the instant
power struggle between the district attorney, also an
elected constitutional officer, and the governor. Rafferty
held that the legislature had impermissibly deprived the
county clerk of his office by providing for the
appointment of a "deputy" who in fact acted as chief
clerk. See Rafferty. 208 N.Y. at 455, 462. In dicta, the
Court noted that the legislature was without power to
"infringe[] upon the constitutional mode of appointment,"
because in such instance, "the constitutional provision for
a choice by the electors would be completely nullified."
The Court further asserted that this conclusion was not
altered by the fact that the powers of the office (as with
the district attorney) were not enumerated in the
constitution. See Rafferty 208 N.Y. at 456-57, 459, 461-
62 (quoting Warner v. People ex rel. Conner. 2 Denio
272, 281 [1845]). As with the cases cited in the preceding
paragraph, Rafferty makes clear that an office's
constitutional status confers upon it powers which must
be recognized and protected. Further, the case stands for
the principle that where the constitution establishes a
specified office, or recognizes its existence and
prescribes the manner in which it shall be filled, the
office is necessarily endowed with a special status -- a
zone of independence -- which cannot be blithely
disregarded. See Rafferty. 208 N.Y. at 456.

4. The concomitant interest of the people of The Bronx

Of course, the district attorney's status as an elected,
constitutional office does not exist in itself and for itself.
Indeed, any incursion onto the powers of the district
attorney is a similar incursion into the interests of the
electorate, interests which similarly must receive
deference and protection. This conclusion is brought
forth by Eldred, 154 N.Y. at 136, 139 (legislative branch
may not abridge term of elected constitutional office in a
manner "wholly foreign" to the "true interests of the
electorate"), and by Rafferty. 208 N.Y. at 459
(legislature is without power to nullify constitutional
provision for choice by electorate), and is further
developed here.

The right to vote is the right to vote effectively. See
Williams v. Rhodes. 393 U.S. 23, 30 (1968). If the
district attorney has no independence, if he or she may
prosecute a case only at the whim of the governor, then a
vote for the district attorney is, ultimately, an empty
exercise. This cannot be the case. See Kramer v. Union
Free School District. 395 U.S. 621, 629 (1969) (once
state determines that certain public officers will be
chosen by electors, their right to vote must be protected
against unlawful incursions); Powell v. McCormack, 395
U.S. 486, 547-48, 550 (1969) (holding that house of
representatives was without power to exclude duly
elected representative and noting that it is a fundamental
right of the people to choose who should govern them);
N.Y. Cons Article I Section 1 ("no member of this state
shall be disenfranchised").

Obviously, the governor is an elected official, and the
state-wide voters for the office of governor must be
afforded deference. However, the preference of those
voters cannot override the authority of the district
attorney without at least some degree of deference to the
voters for this local office. See Pennsylvania v. Schab,
383 A.2d at 822 ("to countenance such a separation of
accountability and control undermines self-government")
(citing Pennsylvania v. Fudeman, 396 Pa. 236, 152 A.2d
428 [1959]).

5. The courts' duty to protect the district attorney's
zone of independence

Given that a constitutional, elected officer-holder
possesses independent powers, and given that the office
may sue in court to protect those powers, it becomes
clear that any litigation between the governor and the
district attorney must be treated, to some degree, as a
contest between similarly situated powers. Given that the
district attorney is protected by a zone of independence,
it follows that the governor's power to intrude must
necessarily be limited and subject to review by the
courts.

As mentioned above, if the judiciary will not enforce
the balance of power between independent executive sub-
branches, then the district attorney's zone of
independence would be meaningless.

ID this context, analysis of the Court of Appeals
decision in Mulroy not to adopt the concurring opinion
of Judge Cooke becomes critical. In his concurrence,
Judge Cooke opined that, "there is no warrant for our
restriction of the scope of legislation in a manner that
would thwart the constitutional and statutory policy or
engraft restrictions on the executive department where
none exist," and indicated that court-intervention would
only be appropriate where, because of exigent
circumstances, the political process was rendered unable
to "combat an abuse of the governor's power." Mulroy,
43 N.Y.2d at 822-23. Clearly, the Court declined to
adopt this reasoning as the law of the state. As such,
although some courts have used extremely broad
language, declaring that the district attorney may be
superseded "when the governor believes such action is
warranted," see Berger v. Carey, 86 Misc. 2d 727, 728
(Sup. Ct., Suffolk County 1976), such expressions are
clearly not precise statements of law. Cf. Matter of
Guden v. Dike. 171 N.Y. 529, 536 (1902) (whether
sheriff should be removed from office "rest[s] solely
upon the governor").

The only possible conclusion is that the governor's
power to supersede the district attorney pursuant to
Executive Law Section 63(2) is limited and subject to
judicial review. The question, then, is what limits, and
what standard of judicial review of those limits, must be
applied. Cf. In Re Di Brizzi, 303 N.Y. 206, 215-16
(1951) (governor's exercise of power upheld where
there exists "reasonable relation" between action directed
by governor and the proper discharge of the executive
function); In Re B. Turecamo Contracting Co. v.
Bennett. 260 A.D. 253, 258 (2d Dept. 1940) (superseder
appropriate where district attorney's conduct was
"reasonably called into question"), lv. denied. 259 A.D.
1094 (1940); Pennsylvania v. Schab, 383 A.2d at 823-24
("in view of the fact that the District Attorney is
statutorily and constitutionally responsible for law
enforcement at the local level ... the Attorney General
must establish good cause for the supersession").

Rather than attempting to identify a precise standard of
review, it might be best to suggest one with which no
reasonable person could disagree: that the governor must
have an objective reason for superseding the district
attorney which is grounded on the failure of the district
attorney to faithfully discharge the duties of office, and
that the lack of such a reason will serve as a basis for the
judicially to invalidate the superseder.

A stark example will prove the point: the governor
could not supersede a district attorney merely because
the district attorney was a member of a different political
party. Such an act would lack a motive which could be
explained or defended in intelligence or by common
human experience. Such an act would transgress even the
least exacting demand for order and the rule of law. A
governor acts lawlessly when he or she intrudes upon the
district attorney's zone of independence based on a
whim, caprice, or personal conviction which is
unsupported by objectivity. See generally, Rapp v.
Carey, 44 N.Y.2d 157, 162 (1978) (noting that there are
limits to the breadth of executive power, and that where
power is delegated to one person the power must always
be guided and limited by standards); accord In Re
Shelley, 332 Pa. 358, 364-65, 2 A.2d 809, 812-13 (1938)
(nominally absolute power of attorney general to
supersede the district attorney may be abused; attorney
general must exercise discretionary powers "upon the
foundation of reason, as opposed to prejudice, personal
motivations, caprice or arbitrary action").13  See also
Pennsylvania v. Schab, 383 A.2d at 822. More
importantly for our purposes, while superseder for the
above-stated "reason" might violate any number of laws,
it must also be true that the superseder order itself would
be invalid.

A potential rebuttal to this line of argument is that the
court lacks the power to evaluate the reasoning of the
governor; that is, the court could look to the effect of an
executive order, but not its cause. See, e.g., Berger, 86
Misc. 2d at 728 (governor may supersede district
attorney whenever "the governor believes such action is
warranted"). Such rebuttal is really nothing more than an
argument that no limits are imposed upon a governor's
actions in the first instance. Moreover, investigation into
the stated purpose of the governor's action would be the
necessary first step of any review, regardless of what
standard of review will be applied to determine if that
purpose and the resulting actions are a valid exercise of
power. Cf. Di Brizi, 303 N.Y. at 215-16 (where Court
looked to purpose of governor's order to evaluate its
validity).

Indeed, in a Court of Appeals case cited in Judge
Cooke's dissent, the Court was careful to note that the
purpose, and not just the effect, of a governor's
executive order will determine its validity. See People ex
rel. Saranac Land & Timber Co. v. Extraordinary
Special and Trial Term of Supreme Court, 220 N.Y. 487
(1917). In Saranac, the governor appointed a special trial
court to hear and decide motions for new trials (and to
preside at any subsequent trials) in realtor actions.
Rejecting the plaintiffs claim that this order supplanted
the judicial function and nullified various civil statutes,
the Court noted that the order "makes no attempt to
control the action of the court ... [i]t merely creates a
term at which there will be an opportunity for a
hearing.... The power of the judge who sits in judgment
is not affected by executive... decree." See Saranac, 220
N.Y. at 489, 491-92. Clearly, the Court scrutinized the
governor's actions carefully to ensure no hidden or
impermissible purpose was at work. Such scrutiny would
similarly be necessary in a review of executive action
under Executive Law Section 63(2).

In the instant case, as discussed earlier in the context of
the governor's infringing on the legislative prerogative,
an examination of the Governor's order shows that the
Governor's "reason" for superseding the District
Attorney is so hollow as to be no reason at all. Rather,
the Governor is proceeding based on his version of the
first-degree murder law, and is implementing a policy
which cannot be justified by the statute.

The Governor's superseder order is thus not based on
objective reason, but merely on his incorrect
interpretation of what the law requires. Thus, even if this
Court determines that the executive order does not
infringe on the Legislature's exclusive powers or on a
specific legislative enactment, it should still invalidate the
order as wrongfully infringing on the District Attorney's
zone of independence.

E. The Executive Order Unconstitutionally Punishes the
District Attorney for Exercising his First Amendment
Rights and Denies him Equal Protection of the Laws.

A district attorney may not be superseded for
exercising rights guaranteed by the United States
Constitution, such as the First Amendment right to
freedom of expression. See Connick v. Meyers, 461 U.S.
138 (1983); Rankin v. McPherson, 483 U.S.378 (1987).

In its explanation of why the Governor has chosen to
replace the District Attorney, the Executive Order is
replete with references to public statements made by the
District Attorney,14 as well as references to the failure
of the District Attorney to issue certain statements in
response to questions propounded by the Governor. The
Executive Order also refers to various murder cases in
which the District Attorney has not sought the death
penalty, and the speed with which those decisions were
made, as establishing "facts" and "actions" that compelled
the Governor to supersede the District Attorney.
However, an examination of those "facts" and "actions"
reveals that they are a mere camouflage -- a device that
seeks to keep hidden from open view a previously
undiscussed goal of the Executive Order: to "chill" any
expression of opinion by elected district attorneys that
contravenes the opinion of the Governor.

The statements made by the District Attorney are
undoubtedly on a matter of grave and substantial public
concern, namely, the death penalty. Speech on matters of
public concern is that speech which lies "at the heart of
the First Amendment's protection." First National Bank
v. Belloth, 435 U.S. 765,776(1978). Moreover, nothing
could be of greater public concern than matters as to
which "free an open debate is vital to informed decision
making by the electorate." Pickering v. Board of
Education. 391 U.S. 563, 571-72 (1968). Here, there
can be no question that the District Attorney's statements
occupy the "highest rung of the hierarchy of First
Amendment values." Carey v. Brown. 447 U.S. 455,
466-67 (1980).

As a constitutionally elected officer, the District
Attorney's statements on the use of the death penalty as a
vehicle of criminal justice seek to inform his electorate
on a great issue of our time. They fulfill the highest
obligation of a candidate for elective office and of an
officeholder in a democracy. It is indeed difficult, if not
impossible, to envision speech that "more substantially
involved matters of public concern." Connick, 461 U.S.
at 152.

Moreover, the context in which the first statement to
draw the Governor's attention was made is significant.
See Connick 461 U.S. at 153. The District Attorney
made his initial pronouncement that he had no "present
intention" to utilize the death penalty only after the law
that authorized it was signed into law (March 7, 1995).
That year, 1995, was the year in which the District
Attorney was re-elected to his third term of office. The
death penalty option would be in effect during that term
of office. The use of that option was placed in the direct
control of the District Attorney (see CPL Section
250.40). Notwithstanding all those facts, the Governor
seeks to use unquestionably protected expression as a
basis for exercising the extraordinary power of
superseder. Even if a District Attorney could be
superseded for any reason or for no reason at all (but see
People v. Mulroy, 43 N.Y.2d 819, 821 [.1977] [declining
to hold that executive power to supersede an elected
district attorney is unbridled]), the superseder order
would be unlawful if it were issued, even in part because
the District Attorney exercised his constitutional right to
freedom of expression. See Rankin, 483 U.S. at 383-84.
This First Amendment protection could only be
overcome if the legitimate interest of the Governor in
insuring that the laws of the State are faithfully executed
(N.Y. Const. Art. 4, Section 3) struck a balance in favor
of the Governor. Pickering, 391 U.S. at 568.

The reasons recited in the Executive Order, aside from
the statements of the District Attorney, which
purportedly justify the superseder are insufficient to
strike the balance in favor of the Governor. The order
recites that the law in question "requires that District
Attorneys determine whether to seek the imposition of
the death penalty ... on a case-by case basis," but points
to no specific statutory provision which prohibits a
different approach. The order claims that the District
Attorney has "a blanket policy not to seek the death
penalty." Yet, as has already been shown, such a
conclusion is based on surmise and conjecture. None of
the "facts" listed in the order establish that the cited
decisions were not made on a case-by-case basis. The
order accuses any district attorney who has such a
blanket policy of violating "his [sic] sworn obligation to
uphold the laws of this State." However, as has already
been shown, neither the laws of this State nor the District
Attorney's oath of office require that the decision as to
whether to seek the death penalty be arrived in the
manner ordained by the Governor. The examples of
murder cases in which the District Attorney has not
sought the death penalty provide no justification for the
Governor's order. The Governor refers to a total of
seven such cases ("the Vernon case" plus six others). In
none does the Governor reveal in which, if any, it was
"improper" not to seek the death penalty. His repeated
references to the number of and speed with which the
decisions were made as support for his belief of a
"blanket policy" is illogical. As mentioned above, a
"blanket policy" not to seek the death penalty would
obviate the need to announce decisions on such a case-by-
case basis; the speed of those decisions does not detract
from the fact that the District Attorney has, in each case,
decided and announced that the death penalty will not be
sought. Nor does the numerical fact that the District
Attorney has not sought the death penalty in seven out of
seven cases reveal anything of substance. As of the date
the Executive Order was issued (March 21, 1996), no
District Attorney in New York City had yet announced
an intention to seek the death penalty in any death penalty
eligible murder case.15  Yet, this District Attorney was
the only one threatened with superseder if his statements
were not modified to conform with the wishes of the
Governor. The only possible conclusion is that the
District Attorney has been singled out based on the
content of his speech. Since the Governor has seen fit to
supersede petitioner in this case based on the specific
content of petitioner's speech, it can be presumed that the
governor will similarly scrutinize other statements by
other district attorneys. In effect, the Governor's threat
and superseder has created a "Don't ask, don't tell"
policy over the sixty-two elected district attorneys of this
state. It is a policy in which those who do express
themselves on this issue in any manner contrary to the
Governor's views risk inquiry and superseder, while
those who remain silent apparently do not. When such a
policy does not promote a "compelling interest" of
government, it violates the First Amendment. See Able
v. United States' 880 F.Supp. 968, 973 (E.D.N.Y 1995).

In order to meet this need for a "compelling interest,"
the Governor's order recites that a blanket policy
"threatens the validity of death sentences imposed in
cases prosecuted in other counties, because [the law
codified as CPL Section 470.30(3)(b)] requires the Court
of Appeals to determine whether a sentence of death is
excessive or disproportionate to the penalty imposed in
similar cases." However, neither the Executive Order
nor any other pronouncements by the Governor explain
how the District Attorney's statements regarding a
"present intention" not to use the death penalty and his
reasoned reservations over its use constitute a blanket
policy that threatens a future proportionality analysis.
Certainly, a speculative concern based on surmise cannot
constitute the kind of compelling governmental interest
that justifies an order superseding a district attorney that
"chills" First Amendment expression of the highest
magnitude, namely, speech by a candidate or elected
official that informs an electorate of his or her stand on
an issue of life and death that is directly within the
sphere of control of that official's office.

Moreover, it is clear that this Executive Order "chills"
only statements that express grave reservations about
seeking the death penalty, whereas it does not discourage
district attorneys from expressing contrary opinions, i.e.,
that they entertain no reservations about seeking the
death penalty. In this way, the order wrongfully
impinges on the District Attorney's right to equal
protection of the laws. See U.S. Cons. Amend. 14; N.Y.
Cons. Art. I Section 11. Thus, judicial review of the
Governor's order is governed by a strict scrutiny
standard because the executive action "impermissibly
interferes with the exercise of a fundamental right."
Massachusetts Board of Retirement v. Murgia, 427 U.S.
307, 312 (1976). Therefore, the Governor is required to
show that the order is "tailored to serve a substantial
governmental interest." Police Department of the City of
Chicago v. Mosley, 408 U.S. 92, 99 (1972). See
generally Seaman v. Fedourich, 16 N.Y.2d 94, 102
(1965) (New York courts are vested with jurisdiction of
actions brought to vindicate equal protection rights,
rights which, under state law, are as broad as the federal
equal protection rights). The Governor's belief that there
exists a blanket policy not to seek the death penalty or
that such a policy violates a law fails to make the
required showing. Similarly, a belief that a blanket
policy would undermine all death sentences under this
State's proportionality statute is so speculative that it also
does not justify a policy discriminating against persons
who express their opinions in ways that do not agree
with the Governor's preferences for stating those
opinions. This form of punishment by superseder is
especially unjustified when the person discriminated
against is an elected official who is duty bound to inform
his electorate of his opinion on a matter of the highest
public concern: "'The office of public prosecutor is one
which must be administered with courage and
independence."' Imbler v. Pachtman, 424 U.S. 409, 423-
24 (1976) (quoting Pearson v. Reed, 6 Cal.App.2d 277,
287, 44 P.2d 592, 597 [1935]). This Executive Order
infringes upon constitutional rights and diminishes that
independence without advancing any substantial
government interest. Superseder should, therefore, be
prohibited.

By Using Executive Law Section 63(2) to Require the
Attorney General to Prosecute the Instant Case. the
Governor has Made an Impermissible End Run Around
the Specific Commands and Policy Concerns Enunciated
in Executive Law Section 63-d.

The Governor's executive order inexplicably, and
impermissibly, ignores Executive Law Section 63-d, a
provision enacted in 1995 as an integral part of the
legislative scheme which revived the death penalty in
New York, which is entitled, "Attorney-general; death
penalty prosecutions." See Executive Law Section 63-d.
This amendment to the existing Executive Law Section
63 governs entry by the attorney general into
prosecutions where the defendant may be subject to the
death penalty. Since it was drafted as an integral part of
the entire legislative scheme that enacted the death
penalty legislation, it must be read to define the extent to
which the attorney general is authorized to participate in
the prosecution of cases charging Murder in the First
Degree. Long recognized rules of statutory construction
compel this construction of Executive Law Section 63 as
amended by Chapter 1 of the Laws of 1995.

First, since the former Executive Law Section 63,
which did not expressly limit the attorney's general
participation in criminal prosecutions at the governor's
direction pursuant to Section 63(2), was specifically
amended by adding executive Law Section 63-d, the
purpose of the legislative amendment will be construed
"usually to make an old statute express and conform to a
more recent legislative intention ...." McKinney's
Statutes Vol. 1 Section 368 p. 536. Second, since Chapter
1 of the Laws of 1995 was a single piece of legislation,
albeit one that amended several different areas of the
consolidated laws, "[t]he different parts of the same act,
though contained in different sections, are to be
construed together as it they were all in the same section,
and the meaning of a single section may not be
determined by splitting it up into several parts."
McKinney's Statutes Vol. 1 Section 97 p. 216. Third, "all
parts of an enactment shall be harmonized with each
other as well as with the general intent of the whole
enactment, and meaning and effect given to all provisions
of the statute." McKinney's Statutes Vol 1. Section 98 pp.
220-21. When the language of Executive Law Section
63-d is viewed in the context of the death penalty
legislation, the legislative intent becomes absolutely
clear. When the charge is Murder in the First Degree,
the attorney general's authority to participate in the
prosecution is limited to assisting the elected district
attorney.

In language strikingly similar to Section 63(2), Section
63-d states that the attorney general shall, at the direction
of the governor and "after a request of the governor by a
district attorney" direct that the resources of the
department of law (whose head is the attorney general,
see Executive Law Section 60) be used to assist the
district attorney in a prosecution or appeal of "any case
where the defendant may be subject to the penalty of
death." See Executive Law Section 63d (emphasis added).
However, this statute conditions the grant of assistance on
the existence of either one of two circumstances: that the
defendant has been provided adequate resources for his
defense pursuant to Judiciary Law Section 35-b; or,
conversely, that the defendant has mustered so many
resources that his resources have become "substantially
greater" than those "reasonably available" to the district
attorney. See Executive Law Section 63d(1)(i-ii).

Thus, on its face, Executive Law Section 63-d indicates
that the attorney general may enter a prosecution where
the defendant may be subject to the death penalty either
because the defendant has enough resources so that the
presence of the attorney general and his attendant
resources will not overwhelm the defense (Executive
Law Section 63-d[1][i]); or, because the attorney's
general presence is necessary to balance the resources
which have tilted unfairly in favor of the defendant
(Executive Law Section 63-d[1][ii]). In either
circumstance, however, the attorney general can proffer
the resources of his office only if the district attorney
makes a request of the governor. See Executive Law
Section 63-d(1).

This point bears repeating: in a prosecution where the
defendant may face the death penalty, the attorney
general may enter only if the district attorney requests
his assistance. Since the district attorney in the instant
case has made no such request, the attorney general is
prohibited from entering. To this end, it bears noting
that the power of the attorney general to prosecute a
criminal case is strictly limited by statute. See People v.
Goldswer, 78 Misc. 2d 910, 913 (Schoharie County Ct.
1974) (power of attorney general to prosecute any
criminal offense in any court has been specifically
restricted by statute, and may be exercised only when the
conditions precedent as described in the legislation are
fulfilled); see also People v. Dorsey, 176 Misc. 932, 938
(Queens County Ct. 1941) (powers of attorney general
are only those granted by state constitution and
enactments of legislature); Additional Jan. 1979 Grand
Jury of the Albany Supreme Court v. Doe, 50 N.Y.2d
14, 18 (1980) (grant of authority to attorney general
pursuant to Section 63[2] extends only to those matters
set forth in the governor's order); Dondi v. Jones, 40
N.Y.2d 8, 19 (1976) (same). Further, the powers of the
governor are limited by the very laws he is bound to
enforce. See Rapp v. Carey, 44 N.Y.2d 157, 166-67
(1978) (noting that governor "has only those powers
delegated to him by the Constitution"). Thus, in the
instant case, the only possible conclusion is that the
Governor has exceeded his power, and that the Attorney
General is powerless to act upon the instant executive
order.

It is no answer that the Governor is employing his
superseder power pursuant to Executive Law Section
63(2), rather than his power pursuant to Executive Law
Section 63-d. Executive Law Section 63(2) is a provision
of general application, concerning the attorney general's
entry into criminal prosecutions, and falling under the
heading of the attorney's general "general duties." See
Executive Law Section 63(2). Whatever general duties
and powers the attorney general may have with regard to
prosecuting crimes (and whatever power the governor
has to activate those powers) is a question quite separate
from what powers the attorney general possesses with
respect to the more specific case provided for by
Executive Law Section 63-d, namely, "death penalty
prosecutions." See Executive Law Section 63-d (title). Of
course, it is settled law that statutes enacted for a "special
purpose" take precedence over earlier legislation which
is general in scope and application. See Martinis v.
Supreme Court. 15 N.Y.2d 240, 249 (1965); see also
People v. Walker. 81 N.Y.2d 661, 664 (1993) (specific
provisions of a statutory scheme override the general). It
is difficult to imagine a recent statutory scheme which
serves a more "special purpose" than that concerning the
death penalty.

Further, Executive Law Section 63-d seeks to
guarantee, within broad parameters, a balance of power
between the prosecution and the defense in cases which
may involve the death penalty. Pursuant to this
guarantee, the statute acknowledges that in any given case
this balance could tilt in favor of either party. Along
these lines, the statute recognizes that the coupling of the
resources of the district attorney and the attorney general
presents concerns unique to a prosecution which may
involve the death penalty. By contrast, Executive Law
Section 63(2) permits the coupling of these two offices16
without any concern for the balance of resources. Since
Executive Law Section 63-d clearly evinces the intent
that "death penalty prosecutions" be treated differently
than other prosecutions on this very issue of
guaranteeing the fair balancing of resources, and since
Executive Law Section 63(2) wholly fails to incorporate
this legislative concern, Executive Law Section 63(2)
cannot apply to cases where "the defendant may be
subject to the penalty of death." See Executive Law
Section 63-d.

Thus, it cannot be argued that Executive Law Section
63-d places no limits on the powers exercised under
Executive Law Section 63(2) because Executive Law
Section 63-d concerns the attorney general assisting the
district attorney, whereas Executive Law Section 63(2)
concerns the attorney general superseding the district
attorney, thereby rendering the provisions conceptually
and categorically distinct.17 This argument (that Section
63-d applies exclusively when the district attorney
requests assistance and that Section 63[2] applies
exclusively when the governor orders a superseder) fails,
because the overarching principle of Executive Law
Section 63-d demands that any concern for preserving
the balance of resources in all prosecutions which may
involve the death penalty be addressed only at the request
of a district attorney. The statute implicitly recognizes
that the district attorney is in the best position to assess
whether the resources of that office are being
overwhelmed by the defense resources.

Moreover, this is not to suggest that in capital cases
involving a district attorney's malfeasance or corruption,
the governor is helpless. Initially, the governor would
still retain the powers to remove such a district attorney
from office (N.Y. Const., Art. 13, Section 13). Further,
construing these two provisions as well as the remainder
of New York's capital punishment scheme together, it is
perfectly consistent to suggest that the governor's
authority under Executive Law Section 63(2) to
supersede a district attorney in the exercise of a capital
sentencing option is limited by Executive Law Section
63-d, but that a different result might ensue were
malfeasance or corruption involved. Of course, that issue
is not before this Court.

In conclusion, the request of the district mechanism
which calls the powers of the attorney general into being
in a special class of cases: prosecutions where "the
defendant may be subject to the penalty of death," and
where the need for balance of resources between the
district attorney and the defendant makes such action
appropriate. See Executive Law Section 63-d. Because
there was no such request in this case, the Governor's
executive order is invalid.

Dated: Bronx, New York
April 18, 1996

ANTHONY J. GIRESE
JOSEPH N. FERDENZI
PETER D. CODDINGTON
STEPHEN MULLER
Of Counsel

ROBERT T. JOHNSON
District Attorney
Bronx County


END NOTES


1. All reference materials will be furnished to the
Court upon request.

2. At the time the statute was signed into law and the
District Attorney was standing for re-election, the
District Attorney informed his constituency that he had
no "present" intention of utilizing the death sentence. He
has also expressed his reservations about the use of the
death penalty on other occasions.

3. To take this policy to its farthest extreme, a governor
might require district attorneys to announce their
position after a murder had been committed, but before a
suspect had even been identified or arrested.

4. In particular, the Governor's suggestion that the
District Attorney should establish an internal review
committee marks an odd policy choice. Notably, the
Governor's predecessor in office designated an internal
review committee within his office to consider each case
in which a special prosecutor was requested. See
Lawrence T. Kurlander and Valerie Friedlander,
Perilous Executive Power-- Perspective on Special
Prosecutors in New York 16 Hofstra L. Rev. 35, 62
(1987). However, Executive Law Section 63(2) no more
requires respondent Pataki to preserve this internal
committee to avoid unwarranted superseder orders than
it requires petitioner to establish one to fend off such
orders.

5. By way of comparison, if a district attorney elected
to seek the death penalty, but then, pursuant to CPL
Section 400.27(1) declared that he or she wished to
reverse that decision, could the governor require the
district attorney to state the reasons for such reversal or
face superseder?

6. See, e.g., North Carolina v. Case. 330 N.C. 161, 163
410 S.E.2d 57, 58 (1991) (under North Carolina scheme,
"the decision as to whether a case of murder in the first
degree should be tried as a capital case is not within the
district attorney's discretion").

7. Of course, the constitutionality of a presumptive
death penalty statute is not posed in the instant case and is
not indicated by the acts of the legislature; however, such
a statutory scheme would clearly face serious challenge
under the Eighth Amendment of the U.S. Constitution.
See McCleskey v. Kemp. 481 U.S. 279, 303 (1987)
(indicating that decision to impose death penalty which
does not focus on the particular nature of the crime and
particular characteristics of the individual defendant
risks violating the Eighth Amendment).

8. CPL Section 470.30(3)(b) provides that the Court of
Appeals "shall" determine "whether the sentence of death
is excessive or disproportionate to the penalty imposed in
similar cases" considering both the crime and the
defendant. "In conducting such review the court, upon
request of the defendant, in addition to any other
determination, shall review whether the sentence of death
is excessive or disproportionate to the penalty imposed in
similar cases by virtue of the race of the defendant or a
victim of the crime for which defendant was convicted."

9. Cf. Gregg v. Georgia 428 U.S. 153, 199 (1976) ("At
each of these stages an actor in the criminal justice
system makes a decision which may remove a defendant
from consideration as a candidate for the death
penalty.... Nothing in any of our cases suggests that the
decision to afford an individual defendant mercy violates
the Constitution.") (plurality opinion).

10. Indeed, as mentioned above (p. 14 n. 7), the
Governor's pronouncements and actions may have
created a problem of reverse proportionality. Certainly,
all local district attorneys will now be on guard against
superseder, perhaps to the point of seeking the death
penalty against their own better judgment. Furthermore,
the Governor's declarations may prevent the Attorney
General from exercising independent judgment in the
case, even though the Attorney General is an
independent, elected officer. Cf. In Re Shelley, 332 Pa.
358, 367, 2 A.2d 809, 814 (1938) (noting temptation of
appointed attorney general to succumb to will of
governor).

11. The term "oyer and terminer" means stated term or
periodical session, and is derived from the ancient
English requirement that the High Court of Justices in
various English counties be held at stated sessions. See
MacDaniel Brothers Const. Co. v. Jordy, 183 So.2d 501,
504-505 (Miss. 1966).

12. See L. 1813 c. 66; L 1818 c. 283; L. 1827 c. 8;
Revised Statutes 1989 c. 8, tit. 5 Section 5; L. 1892 c.
683 Section 52; L. 1894 c. 68; L. 1895 c. 821; L. 1909 c.
23 Section 62; L. 1911 c. 14.

13. Courts in other jurisdictions have held that the
exercise of superseder power is subject to judicial review
even when that power is nominally absolute. See Kemp
v. Stanley. 204 La. 110, 120-21, 15 So.2d 1, 4 (1943).

14. In a press release from the Governor's Office,
attention is called to additional statements made by the
District Attorney on the issue of the death penalty
(Exhibit 9).

15. A recent article in the New York Law Journal has
reported that, of the 371 murder cases from the period
of Sept. 1, 1995 (the date the first degree murder laws
went into effect) through March 26, only 18 have
resulted in first-degree murder indictments, and in only
three are prosecutors seeking the death penalty. See
Edward A. Adams, No Data Kept on All Eligible Capital
Cases. N.Y. Law J., April 1, 1996, at 1, colt 3.

16. Under Executive Law Section 63(2), the district
attorney performs duties and functions at the direction of
the attorney general; thus, the offices are legally coupled
when the governor employs Executive Law Section 63(2)
to activate the attorney's general latent power.

17. On a more elementary level the argument that these
two provisions are conceptually unrelated is belied by the
fact that they sit side-by-side in the Executive Law.