| Matter of Staten Is. Branch of the N.A. for the Advancement of Colored People v State of N.Y. Grievance Comm. for the Second, Eleventh & Thirteenth Jud. Dists. |
| 2016 NY Slip Op 07124 |
| Decided on November 1, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on November 1, 2016
Sweeny, J.P., Acosta, Andrias, Manzanet-Daniels, Webber, JJ.
2089 10913/15
v
The State of New York Grievance Committee for the Second, Eleventh & Thirteenth Judicial Districts, Respondent-Respondent.
James I. Meyerson, New York, for appellant.
John W. McConnell, New York (Lee A. Adlerstein of counsel), for respondent.
Judgment (denominated a decision and order), Supreme Court, Kings County (Bernard J. Graham, J.), entered on or about March 22, 2016, denying the petition to annul respondent's determination, dated April 27, 2015, which declined to open an investigation into petitioner's disciplinary complaint, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.
The court's determination that it lacked jurisdiction over this article 78 proceeding to challenge an Attorney Grievance Committee decision declining to investigate the handling of the grand jury proceeding in the Eric Garner case by former Richmond County District Attorney Daniel Donovan is supported by well-settled authority; 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 (Matter of Taylor v Adler, 73 AD3d 937 [2d Dept 2010], lv denied 15 NY3d 712 [2010]; Matter of Pettus v Dudis, 82 AD3d 896 [2d Dept 2011], lv denied 6 NY3d 816 [2006]).
Petitioner's attempt to seek court review and a disciplinary remedy against a duly elected prosecutor who acted within the discretion of his office also fails under the doctrine of separation of powers (Matter of Soares v Carter, 25 NY3d 1011 [2015]; Klosterman v Cuomo, 61 NY2d 525, 535-536 [1984]; Jones v Beame, 45 NY2d 402, 408 [1978]). In any event, petitioner's allegation, 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. Moreover, other remedies are available to hold prosecutors accountable for their discretionary conduct, including the electoral process and an executive order of the Governor transferring [*2]prosecutorial authority to the Attorney General, which, in fact, has occurred for future cases involving fatal actions by police officers (Executive Order [Cuomo] No. 147 [9 NYCRR 8.147] [July 8, 2015]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 1, 2016
CLERK