
    The People of the State of New York, Respondent, v Vincent J. Rallo, Vincent A. Verrone, Joseph J. Rallo and Franklin Rallo, Appellants. (And Eight Other Actions.)
    Argued January 8, 1976;
    decided April 1, 1976
    
      
      Thomas G. Presutti and Anthony F. Leonardo, Jr., for Vincent J. Rallo, Joseph J. Rallo and Franklin Rallo, appellants.
    I. Section 70-a of the Executive Law of the State of New York is unconstitutionally vague because it places unlimited authority and discretion in the hands of the Deputy Attorney-General in charge of the Organized Crime Task Force of the State of New York. (People v Berck, 32 NY2d 567; Papachristou v City of Jacksonville, 405 US 156; Baggett v Bullitt, 377 US 360.) II. The Deputy Attorney-General of the State of New York, acting under section 70-a, exceeded his authority to prosecute defendants herein, Vincent J. Rallo, Joseph J. Rallo and Franklin Rallo. (People v Florus, 67 Misc 2d 809; Matter of Dati v Gallagher, 68 Misc 2d 692; Matter of Pratt v Tofany, 37 AD2d 854; Nettleton Co. v Diamond, 27 NY2d 182, 28 NY2d 539, 401 US 969; People ex rel. Woodward v Draper, 67 Misc 460, 142 App Div 102, 202 NY 612; Schauf v City of New 
      
      York, 23 Misc 2d 585; People v Szymanski, 63 Misc 2d 40; Behan v People, 17 NY 516; People v Lewis, 29 NY2d 923; Buholtz v Rochester Tel. Corp., 65 Misc 2d 1071.) III. The rights of defendants to due process of law have been violated in the instant case. (Matter of Simonson v Cahn, 33 AD2d 790, 27 NY2d 1; Wynehamer v People, 13 NY 378.)
    
      Norman A. Palmiere and Herald Price Fahringer for Vincent A. Verrone, appellant.
    I. The court’s below judgment should be reversed because the Task Force has refused to offer any showing that it appeared before the Grand Jury to present evidence against organized crime activity that crossed State or county lines. (Carlisle v Bennett, 243 App Div 186, 268 NY 212; Matter of Davies, 168 NY 89; People v American Ice Co., 120 App Div 234; People v Foster, 204 App Div 295, 236 NY 610; Matter of Hirshfield v Hanley, 228 NY 346; Matter of Hirshfield v Craig, 239 NY 98; Boyd v United States, 116 US 616; Interstate Commerce Comm, v Brimson, 154 US 447; Hale v Henkel, 201 US 43; Harriman v Interstate Commerce Comm., 211 US 407.) II. Section 70-a is unconstitutional on its face and as applied because the term "organized crime activities” is fatally vague. (People v Ron-Ore Soil Systems, 81 Misc 2d 121; Rabe v Washington, 405 US 313; United States v Harriss, 347 US 612; Lanzetta v New Jersey, 306 US 451; Watkins v United States, 354 US 178; People v Firth, 3 NY2d 472; Fenster v Leary, 20 NY2d 309; People v Diaz, 4 NY2d 469; Shuttlesworth v Birmingham, 382 US 87; Gregory v Chicago, 394 US 111.)
    
      Charles F. Crimi for Lawrence D. Chesler, appellant.
    I. The appearance by the Deputy Attorney-General before the Grand Jury was unauthorized which resulted in a defective Grand Jury proceeding and the indictments should be dismissed. (United States v Carter, 493 F2d 704; United States v Singleton, 460 F2d 1148.) II. The failure either to record or to give instructions to the Grand Jury resulted in a defective Grand Jury proceeding and the indictments should be dismissed. (People v Percy, 74 Misc 2d 522, 45 AD2d 284.)
    
      Maxwell B. Spoont, Acting Deputy Attorney-General in Charge of the Organized Crime Task Force (John P. Mansour of counsel), for respondent.
    I. Section 70-a of the Executive Law is constitutional. (Matter of Di Brizzi [Proskauer], 303 NY 206; Matter of Cranford Material Corp., 174 Misc 154; Matter of Turecamo Contr. Co., 260 App Div 253, 259 App Div 1094; 
      Dunham v Ottinger, 243 NY 423; Matter of La Belle Creole Int, S. A. v Attorney-General of State of N. Y., 10 NY2d 192; People v Ron-Ore Soil Systems, 81 Misc 2d 121; Lanzetta v New Jersey, 306 US 451; United States v Carter, 493 F2d 704; United States ex rel. Womack v United States Attorney, 348 F Supp 1331.) II. The executive approval, per se, constituted presumptive evidence of the authority of the OCTF to appear before the Grand Jury. (People v Tru-Sport Pub. Co., 160 Misc 628; People v Abbott, 4 Misc 2d 565; United States v Archer, 355 F Supp 981; United States v Roselli, 432 F2d 879; United States v Carter, 493 F2d 704; People ex rel. McClelland v Roberts, 148 NY 360; People v Ianniello, 21 NY2d 418; People v Kohut, 49 Misc 2d 1035, 25 AD2d 10, 17 NY2d 705; People v Zara, 44 Misc 2d 698.) III. The OCTF had the authority to present evidence to the Monroe County Grand Jury of any offense which was related to the subject matter described in the letter of approval from the Governor and District Attorney. (People v Dorsey, 176 Misc 932; People v "John Doe” [Halleran], 176 Misc 943; People v Bradick, 16 Misc 2d 1080; People v Stern, 3 NY2d 658; People v Tomasello, 21 NY2d 143; People v Besser, 207 Misc 692; Matter of Prentice v Gulotta, 13 Misc 2d 280; Sullivan v United States, 348 US 170; Matter of Application to Quash Grand Jury Subpoena, 384 F Supp 1304.) IV. The Deputy Attorney-General had concurrent authority to appear before the Grand Jury under section 63 (subd 13) of the Executive Law to investigate perjury and conspiracy to commit perjury committed at investigative hearings conducted under section 70-a (subd 4) of the Executive Law. (Matter of Bennett v Merritt, 173 Misc 355, 261 App Div 824, 836, 286 NY 647; Rankin v Shanker, 23 NY2d 111; People v Bromwich, 200 NY 385; Lederer v Wise Shoe Co., 276 NY 459; People v McNair, 78 Misc 2d 341; People v Dorsey, 176 Misc 932; People v Welz, 70 Misc 183.) V. The court below correctly determined that the indictments against Lawrence Chesler were supported by sufficient evidence before the Grand Jury. (United States v Brawer, 482 F2d 117; United States v Jacobs, 475 F2d 270; United States v Benjamin, 328 F2d 854, 377 US 953; People v Yonkers Contr. Co., 17 NY2d 322.) VI. The omission to fully record the instructions given to the Grand Jury is not a defect which warrants dismissal of these indictments. (People v Percy, 45 AD2d 284; People v Dunleavy, 41 AD2d 717, 33 NY2d 573.)
   Jones, J.

We hold that, if the requirements set forth in subdivision 7 of section 70-a of the Executive Law are met, there need be no showing of "organized crime activity” to authorize the Deputy Attorney-General in charge of the Organized Crime Task Force to appear before a Grand Jury. We thus differentiate sharply from the showing prerequisite to the issuance of office subpoenas under subdivision 4 of section 70-a (Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227).

The legislative findings disclose that the objective behind the enactment of section 70-a was to reach and combat organized crime activities. The means adopted was to establish a State-wide Organized Crime Task Force (OCTF) headed by a Deputy Attorney-General. The statute delineates the powers and authority of that official. For present purposes it suffices to note that his authority to appear before Grand Juries is set forth in subdivision 7: "7. With the approval of the governor and with the approval or upon the request of the appropriate district attorney, the deputy attorney general in charge of the organized crime task force, or one of his assistants, may attend in person any term of the county court or supreme court having appropriate jurisdiction, including an extraordinary special or trial term of the supreme court when one is appointed pursuant to section one hundred forty-nine of the judiciary law, or appear before the grand jury thereof, for the purpose of managing and conducting in such court or before such jury a criminal action or proceeding concerned with an offense where any conduct constituting or requisite to the completion of or in any other manner related to such offense occurred either in two or more counties of this state, or both within and outside this state. In such case, such deputy attorney general or his assistant so attending shall exercise all the powers and perform all the duties in respect of such actions or proceedings, which the district attorney would otherwise be authorized or required to exercise or perform. In any of such actions or proceedings the district attorney shall only exercise such powers and perform such duties as are required of him by such deputy attorney general.”

As Mr. Presiding Justice Marsh noted at the Appellate Division, that subdivision prescribes three conditions which must be met if the Deputy Attorney-General in charge of the OCTF is to appear before the Grand Jury: (1) the Governor must give his approval; (2) the appropriate District Attorney must request or approve such appearance; and (3) the Grand Jury proceeding must be concerned with multicounty or interstate conduct. In the present cases it is conceded that the first two or these three conditions precedent were satisfied. We agree with the majority at the Appellate Division that the third condition was satisfied as well.

The statute requires only that "any conduct * * * in any * * * manner related to [the] offense occurred * * * in two or more counties of this state” (§ 70-a, subd 7). The misappropriations which constitute the gravemen of the indictments occurred in Monroe County, where the housing project was located, in which each of appellants resided, and in which the corporate participants had their offices. The role played by Sack-man-Gilliland of Brooklyn, County of Kings, however, in making the construction loan to finance the housing project, although it did not form the basis for the indictments, constituted a sufficient other-county relation. The conduct occurring in the second county need not be that of an eventually indicted defendant, nor need it constitute or be requisite to the offense with which the Grand Jury is concerned; it is enough that it is related thereto "in any manner”.

Appellants would additionally have us erect a fourth prerequisite, namely, some showing that, in addition to constituting a multicounty or interstate offense, the presentments laid before the Grand Jury involve "organized crime activities”. We find no such requirement in subdivision 7. Indeed examination of the other portions of section 70-a suggests that in drafting the statute conscious care was taken to avoid the use of the phrase, "organized crime activities”, in subdivision 7. Unless mandated by provision of statute there is no general principle of law which would require identification of subject matter as prerequisite to Grand Jury appearance (again, contrast the different principle of law generally applicable to investigations by the Attorney-General, Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, supra). Once past the investigative stage (for which there must be a showing of "organized crime activities”) prosecutorial authority is complete, provided, of course, in this instance that the three explicit conditions prescribed in the subdivision have been met.

That there need be no prerequisite showing of the focus of the Grand Jury presentments makes particularly good sense with respect to presentments by OCTF. Because of what must be conceded to be the practical difficulty of describing or defining precisely what is intended by the phrase, "organized crime activities”, it would appear naive at the least to make prosecutorial authority depend on the resolution of such a quicksilver issue, thereby in practice perhaps materially to handicap the prosecutorial efforts of the OCTF by spawning troublesome threshold issues whose resolution could be not only very difficult but also very time consuming and unpredictable. Experience was available from the Federal practice to alert our State’s Legislature to the practical complexities which any such requirement might entail. (McClellan, The Organized Crime Act [S 30] or Its Critics: Which Threatens Civil Liberties?, 46 Notre Dame Lawyer 55; Malone, The Problem of Categorizing and Controlling Organized Crime, 36 Albany L Rev 330.) Had it been the intention to mandate an element of organized crime activities as prerequisite to the exercise of the authority conferred in subdivision 7, one cannot think that our sophisticated draftsmen and legislators would not have had recourse to the effective procedural device of reliance on an official, nonreviewable, executive certification of the existence of such activities. (Cf. US Code, tit 18, § 3503, subd [a]; United States v Carter, 493 F2d 704; United States v Singleton, 460 F2d 1148.) Realism compels the observation that, however appropriate and useful it may be to require such an executive certification as a precondition to a transfer of responsibility within the executive branch from the normal prosecutor to a special prosecutor (compare the necessity under subdivision 7 for approval of the Governor and the local District Attorney), the executive certification mandated by the Federal statute is not an event of any practical significance or protection to a prospective defendant.

There being no general principle which calls for pre-presentment subject matter identification, we cannot read into subdivision 7 any such practical obstacle to the effective discharge of the prosecutorial function of the OCTF as would inescapably accompany the necessity to establish the presence of organized crime activities. Particularly is this so when it is recognized that, without reference to section 70-a, the Governor is given authority to designate a Deputy Attorney-General as prosecutor superseding the local District Attorney under the provisions of subdivision 2 of section 63 of the Executive Law with full authority to appear before Grand Juries. (Cf., also, Executive Law, § 63, subd 10.) It is unrealistic to think that the Legislature, when under no necessity to do so, would have imposed a more cumbersome condition precedent with respect to the authority of the Deputy Attorney-General in charge of OCTF than would normally be the case.

Because we conclude that proof of "organized crime activities” is no prerequisite to the authority of the Deputy Attorney-General in charge of the OCTF to appear before the Grand Jury, we do not here reach the issue as to the constitutionality of section 70-a argued by appellant on the theory that the phrase "organized crime activities” is impermissibly vague. (But cf. Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227, supra.)

The orders of the Appellate Division should be affirmed.

Jasen, J. (concurring).

In this case, the Deputy Attorney-General, at the instance of the Governor and the local District Attorney, conducted a Grand Jury investigation in Monroe County into the affairs of a labor union. The Grand Jury returned eight indictments against various defendants, charging them, among other things, with having converted union funds for personal benefit. Special Term dismissed the indictments on the ground that the evidence before the Grand Jury did not establish that the criminal acts allegedly committed were either "organized” or intercounty and, therefore, there was no authority for the appearnace of the Deputy Attorney-General before the Grand Jury. The Appellate Division, Fourth Department, with two Justices dissenting, reversed and ordered the indictments reinstated. (46 AD2d 518.)

I agree with the majority that there should be an affirmance. I disagree, however, with the intimation in the majority’s opinion that Grand Jury proceedings conducted by the representatives of the Organized Crime Task Force will be voided if the Task Force fails to establish, at some point, that the events investigated by the Grand Jury involve intercounty or interstate activities. In my view, absent demonstrable bad faith on the part of the Governor and local District Attorney, any Grand Jury proceeding conducted by the Task Force pursuant to the stated approval of these officials is valid and is not subject to subsequent judicial scrutiny.

The State-wide Organized Crime Task Force, created by the Legislature in 1970, is empowered to conduct investigations and prosecutions of organized criminal activity carried on within two counties or within this State and another jurisdiction. It is also to co-operate with and assist local prosecutors and law enforcement officials in their efforts against organized crime. (Executive Law, § 70-a, subd 1.) In order to fulfill its statutory mandate to investigate and prosecute, it is evident that authorized representatives of the Task Force must be permitted to make Grand Jury appearances. On the other hand, it is also necessary to avoid undermining the proper investigatory and prosecutorial functions of the local District Attorneys. In order to ensure that the Task Force would not abuse authority to conduct Grand Jury proceedings, the Legislature, in conferring this authority on the Task Force, conditioned it on obtaining the prior approval of both the Governor and the local District Attorney. (Executive Law, § 70-a, subd 7.) The purpose of this check was not to protect those suspected of criminal activity, for they will be investigated in any case, but to protect each local prosecutor from the danger that the Task Force would become a roving commission, acting in excess of its limited jurisdiction and usurping the prerogatives of the District Attorney.

Where the Governor and District Attorney, in the proper exercise of their official powers, approve the entry of the Task Force, there is little danger that the Task Force is treading on forbidden ground. The general rule is that the Governor and the District Attorney, as public officials, will perform their duties honestly and in conformity with the law. (Matter of Driscoll v Troy Housing Auth., 6 NY2d 513, 518; Matter of Magnotta v Gerlach, 301 NY 143, 149.) There is a presumption that "an official does no act contrary to his official duty, or omits no act which his official duty requires.” (Matter of Whitman, 225 NY 1, 9; accord Matter of Marcellus, 165 NY 70, 77.) When the Legislature confers a power upon public officials, it does so with the knowledge that "public officials will perform their duties in good faith and with proper regard to the interests committed to them.” (Schieffelin v Goldsmith, 253 NY 243, 252-253; Matter of Emerson v Buck, 230 NY 380, 389.) Thus, when the Legislature granted to the Task Force the authority to appear before Grand Juries, provided the Governor and District Attorney approve, it presumed that the Governor and District Attorney would not grant approval unless they were satisfied that there was some basis for the investigation and prosecution to be conducted by the Task Force.

At the time the investigation is approved and the Grand Jury proceedings commenced, there may be situations where definitive proof is not available to satisfy a court either that organized crime is involved or that the activity investigated spans more than one county. However, the Legislature did not require that definitive proof of the jurisdictional elements be obtained before the Task Force could conduct investigations or prosecutions. All that is required to satisfy the legislative mandate is that the Governor and local District Attorney conclude that there is some basis for a belief that organized crime is involved and that the alleged criminal activity occurred in more than one county. When these officials give their approval, it is presumed that they found that there was a basis for a Task Force investigation. Moreover, aside from a finding that a basis for Task Force jurisdiction exists, an approval also represents a determination that the investigation may be more appropriately handled by a State-wide prosecutor, rather than by the locally elected District Attorney. Absent proof that the Governor and District Attorney gave their approval in bad faith, the courts should not review a discretionary determinaiton properly placed by the Legislature within the jurisdiction of responsible executive officials. Even if the investigation eventually does not discover anything but local, unorganized criminal activity, that does not negate the belief on the part of the responsible officials that there was a reasonable basis to initiate an investigation.

As Presiding Justice Marsh noted, Grand Jury proceedings should not be considered voidable, depending upon the facts subsequently adduced. In the absence of bad faith that would rebut the presumption of regularity (People v Richetti, 302 NY 290, 298), Grand Jury appearances by Task Force representatives which have been approved by the Governor and the local District Attorney should be sustained by the courts. The statute does not require any less.

The majority itself concedes that no proof of "organized crime activities” is required before the Deputy Attorney-General can appear before a local Grand Jury. Proof of multicounty activity might be just as difficult of proof at an early stage of investigation as is proof that the criminal activity is organized. I can see no valid basis for distinguishing between them. Neither did Presiding Justice Marsh writing for the Appellate Division.

Since I believe that the Task Force was not required to make a factual showing to establish its investigatory authority, and since the appellants failed to produce any evidence indicating that the Governor and District Attorney approved the investigation in bad faith, I conclude that the Grand Jury appearance of the Deputy Attorney-General was proper and that the ensuing indictments were lawful. For this reason I would affirm the orders of the Appellate Division.

Chief Judge Breitel and Judges Wachtler, Fuchsberg and Cooke concur with Judge Jones; Judge Jasen concurs in result in a separate opinion; Judge Gabrielli taking no part.

Orders affirmed. 
      
       It appears that in the course of the OCTF investigation which preceded the presentments to the Grand Jury in this case, the Deputy Attorney-General in charge of the OCTF made extensive use of office subpoenas, presumably under the authority of subdivision 4 of section 70-a. No objection was raised as to the authority for the issuance of such subpoenas by timely motion to quash or otherwise. Nor is any such issue tendered on this appeal. The only challenge now raised, and thus the only question we address in this case, is as to the authority of the Deputy Attorney-General in charge of the OCTF to appear before the Grand Jury in the circumstances disclosed in these records.
     