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November 4, 2016

Review of a district attorney’s handling of a criminal proceeding brought before a grand jury


Review of a district attorney’s handling of a criminal proceeding brought before a grand jury
Staten Is. Branch of the N.A. for the Advancement of Colored People v State of N.Y. Grievance Comm. for the Second, Eleventh and Thirteenth Jud. Dists., 2016 NY Slip Op 07124, Appellate Division, First Department

The Staten Island Branch of the N.A.A.C.P. [Staten Island] sought a court review and a disciplinary remedy, alleging that that former Richmond County District Attorney Daniel Donovan had a conflict of interest per se in his handling of a grand jury proceeding in an effort to obtain an indictment against a local police officer.

Supreme Court denied Staten Island’s Article 78 petition seeking an order annulling the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts’ [Committee] determination not to reopen an investigation into Staten Island’s disciplinary complaint and dismissing the proceeding.  Staten Island’s appeal of the Supreme Court’s ruling was unanimously denied by the Appellate Division.

The Appellate Division said the Supreme Court’s determination that it lacked jurisdiction over this Article 78 proceeding to challenge an Attorney Grievance Committee decision not to investigate the handling of the grand jury proceeding involving former Richmond County District Attorney Daniel Donovan “is supported by well-settled authority.” The court explained that “the only avenue for review has already been exhausted through the reconsideration process and an application to the Presiding Justice of the Appellate Division, Second Department.”*

The Appellate Division also observed two additional elements that barred Staten Islands Article 78 action: [1] a court review and a disciplinary remedy against a duly elected prosecutor who acted within the discretion of his office “fails under the doctrine of separation of powers” and [2] Staten Island’s contention that “a publicly-elected district attorney is possessed of a conflict of interest per se whenever seeking an indictment against a local police officer was not sufficiently particularized.”

* The Appellate Division noted that an Executive Order of the Governor, Cuomo EO 147, authorizes transferring prosecutorial authority to the Attorney General in future cases involving fatal actions by police officers, which order provides an additional remedy to hold prosecutors accountable for their discretionary conduct as does the electoral process.

The decision is posted on the Internet at:


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