(dissenting). I would affirm the dismissal of the indictments on the ground that the Assistant Attorney-General, by whom the evidence was put before the Grand Jury, was an unauthorized person, in violation of CPL 190.25 (subd. 3) and that the proceeding was therefore defective under CPL 210.35 (subd. 5).
In presenting the evidence which gave rise to the challenged indictments the Assistant Attorney-General acted as an arm of the Organized Crime Task Force created by section 70-a of the Executive Law. When, as now, the authority of that officer to appear before the Grand Jury is challenged, there must be some showing of a legal justification for his appearance, which is otherwise prohibited by the CPL (see Matter of State of New York v. Parker, 30 N Y 2d 964; Matter of A’Hearn v. Committee on Unlawful Practice of Law of N. Y. County Lawyers’ Assn., 23 NY 2d 916).
The majority of the court find that justification in subdivision 7 of section 70-a of the Executive Law, and conclude that all that is required is the approval by the Governor, the approval or request by the appropriate District Attorney and some showing of an offense with related conduct occurring in two or more counties of the State.
In my view, there is an additional requirement—i.e., a showing of a relationship between the evidence presented to the Grand Jury and organized crime activities, or of a reasonable basis for suspicion of such a relationship.. A reading of the legislative findings and of the executive documents circulated at the time of passage of section 70-a of the Executive Law leaves no doubt that the statute is a legislative effort to reach and combat organized crime activities (L. 1970, ch. 1003, § 1; Memorandum of State Executive Department, 1970 McKinney’s Session Laws, pp. 3023-3024; Governor’s Message, 1970 McKinney’s Session Laws, pp. 3050-3051). These resources are replete with references to ‘ ‘ organized crime ’ ’ and ‘ ‘ multi-county organized crime activities ’ ’. Subdivision 1 of the statute, which creates the organized crime task force within the department of law, states its “ duty and power” as follows: “ (a) To conduct investigations and prosecutions of organized crime activities carried on either between two or more counties of this state or between this state and another jurisdiction; (b) To cooperate with and assist district attorneys and other local law enforcement officials in their efforts against organized crime. ’ ’ (Empha*530sis added.) Each of these powers and duties is focused on organized crime; the remaining subdivisions of section 70-a provide means and details of implementing those powers and duties. Organized crime is the target of the legislation; the Organised Grime Task Force is the vehicle for its effectiveness, and the incidental provisions for that body’s operations are instinct with a necessary relevance to its powers and duties. “ The dimensions and diversity of the activities ” which must be present to authorize intervention by the Task Force are ‘ ‘ multi-county organized crime activities involving such offenses as gambling, trafficking in dangerous drugs, hijacking, labor racketeering, loansharking, extortion and bribery ”. (L. 1970, ch. 1003, § 1, subd. 4.) (See Matter of Sussman v. New York State Organised Crime Task Force, Sup. Ct., Sullivan County, July 12,1974, Hughes, J.)
Indeed, on this appeal the Deputy Attorney-General does not seem to question the need for a relationship to organized crime activities, but interprets the approval by the Governor and by the District Attorney of Monroe County as a determination of that relationship, relying on United States v. Singleton (460 F. 2d 1148, cert. den. 410 U. S. 984) and United States v. Carter (493 F. 2d 704). There are two answers to that contention: first, nojvhere in the letters of approval—which are substantially identical—is there any such determination by the approving officials, and nothing in the record provides any basis for concluding that a showing had been made to them before the letters were issued upon which they might have made such a determination; second, nothing in the statute indicates that approval by the named officials satisfies the requirement of the existence of organized crime for activity by the organized crime task force. The requirement of approval by the two designated public officers is an additional, and subordinate, requirement for intrusion by the Deputy Attorney-General or one of his assistants in the local prosecutorial process; it is not a substitute for a showing of organised crime.
In this respect, the statute with which we are dealing is significantly different from that involved in the Singleton and Garter cases, and that difference serves to make those cases of little value in resolving the present appeal. The legislation with which those cases were concerned (U S. Code, tit. 18, § 3503, subd. [a]) expressly authorized certain action upon “ certification by the Attorney General * * * that the .legal proceeding is against a person who is believed to have participated in an organized criminal activity ”, Thus, the statute clearly made *531the certification of involvement in organized criminal activity the predicate for subsequent action directed at the further uncovering of organized crime. By specific provision, the qualification under the statute was met by such certification which, when issued, the Federal Court of Appeals held could not be looked behind by judicial review, absent bad faith of the certifying officer. In our case, however, there is no such provision for certification as to organized crime involvement and, absent a legislative mandate that a relationship with organized crime is to be deemed to have been established by the approval of the Governor and the District Attorney for the Deputy Attorney-General’s appearance, we would be accomplishing judicial legislation to read such a provision into the statute and 1 ‘ we are not privileged, by judicial construction, to legislate.” (Matter of Metropolitan Life Ins. Co. v. Boland, 281 N. Y. 357, 361.)
An examination of the Grand Jury minutes reveals that the only contacts outside of Monroe County were with brokers and agents for banks, financial corporations and individuals in relation to efforts of various defendants to secure funds for the construction of the apartment house which was being built. There was no other contact with anyone outside the geographical limits of Monroe County. There is no proof whatsoever that these persons outside of Monroe County had any connection with defendants except as brokers, lenders and prospective lenders of money. Those who did advance funds actually were victims of the defendants in that they did not receive full payment for moneys advanced to defendants. It was never the intention of section 70-a of the Executive Law to prosecute individuals who victimize persons residing in another county with no showing of an unlawful conspiratorial connection. Certainly, if an individual residing in Monroe County were to defraud residents of Monroe County and of several other counties such an individual would not be considered a member of organized crime on this evidence alone.
All that this record reveals is that the Governor and the District Attorney consented to the prosecution of this matter by the task force. Completely absent in this record is any evidence “ of organized crime activities carried on either between two or more counties of this state or between this state and another jurisdiction ’ ’. The crimes for which the indictments were returned were conceived and carried on in Monroe County by residents of that county. It was the obligation and responsibility of the District Attorney of Monroe County to institute and *532carry on this prosecution. It should not be possible, nor does the law permit, a local District Attorney to avoid performing his duty by consenting to let others do it for him.
The record before us—including the evidence put before the Grand Jury—fails to disclose any organized crime activities under consideration by the organized crime task force. Although there is in the transcript of the proceedings before the Grand Jury evidence of activities occurring in two or more counties which related obliquely to offenses being presented, there is nothing to connect those activities with organized crime. As stated above, such activities as were had outside of Monroe County were with persons who were themselves defrauded by these defendants. In such circumstance, the Deputy Attorney-General was obligated, in the face of a challenge to his authority, to come forward in response to the Special Term’s invitation and make an in camera showing of a sufficient basis to validate his presence before the Grand Jury. His refusal to do so suggests that he had no such evidence.
At this point it is not necessary to determine what proof would be sufficient to establish that the organized crime task force was acting within the authority conferred on it by section 70-a of the Executive Law. In view of the Deputy Attorney-General’s refusal to make any showing of a predicate for his prosecutorial activities, that question is not here presented. Suffice it to say, however, that some demonstration of a basis for the exercise of his authority, within the bounds defined by the statute that created the agency for which he acts, is a reasonable requirement properly sought by defendants indicted by the Grand Jury before which he appeared.
Absent a showing of a relationship with organized crime activities in the matters being presented to the Grand Jury, I conclude that the Monroe County District Attorney, who is charged with the duty of prosecuting crimes cognizable by the courts of his county (County Law, § 700), rather than the Assistant Attorney-General, should have presented the matters contained in this transcript to the Grand Jury. Every element of the crimes for which the indictments were returned was committed within Monroe County by residents of that county. I might add that the acts occurring in Miami, Florida, which the majority characterizes as “ acts in furtherance of the offenses contained in the indictments ”, bore no relationship at all to the several crimes for which indictments were returned, and in fact were not even in aid of the Sackman-Gilliland financing, which itself did not form the basis of an indictment.
*533Accordingly, the orders dismissing the indictments should be affirmed with a direction that the Monroe County District Attorney submit the matter to a Grand Jury.
As to the appeals from the dismissals of the indictments against defendant Chesler on the ground of insufficiency of proof, I would agree with the majority that there was sufficient evidence to warrant the indictments against this defendant but, because of the infirmity in the proceedings before the Grand Jury, I conclude that the indictments should be dismissed. I would therefore modify these orders to permit and require submission by the District Attorney to another Grand Jury, and as modified, would affirm.
Moule and Mahoney, JJ., concur with Marsh, P. J.; Goldman and Del Yecchio, JJ., dissent and vote to affirm in an opinion by DelVecchio, J., in which Goldman, J., concurs.