
    The People of the State of New York, Appellant, v Theodore Rosenberg, Respondent.
    Argued June 5, 1978;
    decided July 11, 1978
    
      POINTS OF COUNSEL
    
      John F. Keenan, Deputy Attorney-General, Special State Prosecutor (Mark M. Baker and Thomas A. Duffy, Jr., of counsel), for appellant.
    I. The Special Prosecutor’s authority to proceed should be measured by the facts appearing during the course of an investigation and not necessarily by those alleged in any resulting indictment. (People v Rallo, 46 AD2d 518, 39 NY2d 217; Matter of Sussman v New York State Organized Crime Task Force, 39 NY2d 227; Matter of Sigety v Hynes, 38 NY2d 260; Mulroy v Carey, 58 AD2d 207, 43 NY2d 819; Matter of Dondi v Jones, 40 NY2d 8; Blair v United States, 250 US 273; Matter of Cunningham v Nadjari, 39 NY2d 314; People v Sam, 49 AD2d 732; People v Bradick, 16 Misc 2d 1080; People v Casalini, 48 AD2d 805.) II. The mere allegation in an indictment of an apparent corrupt act on the part of a public servant, which act relates to the criminal justice system, is sufficient to confer prosecutorial authority upon the Special Prosecutor. (Matter of Dondi v Jones, 40 NY2d 8.)
    
      Jeffrey D. Ullman for respondent.
    The Special State Prosecutor is jurisdictionally precluded from conducting further proceedings in connection with the indictment now pending against defendant; alternatively, the indictment must be dismissed for the lack of jurisdiction. (Matter of Dondi v Jones, 40 NY2d 8; People v Sam, 49 AD2d 732; People v Rallo, 46 AD2d 518, 39 NY2d 217; Matter of Moritt v Nadjari, 46 AD2d 784.)
   OPINION OF THE COURT

Gabrielli, J.

The People appeal by permission of an Associate Judge of this court from an order of the Appellate Division granting defendant’s motion, purportedly made pursuant to subdivision 2 of section 149 of the Judiciary Law, seeking to prohibit the Special Prosecutor from continuing the prosecution of defendant Rosenberg for attempted grand larceny in the second degree. For the reasons discussed below, there should be a reversal and a denial of the motion.

The investigation which culminated in this prosecution began when the Special Prosecutor received information indicating that a certain woman was claiming that she could assert improper influence within the criminal justice system, and was offering that influence for sale. Investigators obtained certain evidence incriminating the woman, and subsequently convinced her to serve as an informant. She in turn implicated the law secretary of a Supreme Court Justice, and, finally, that law secretary was also persuaded to co-operate with the investigation.

The investigation resulted in the indictment of defendant Rosenberg and one other for attempted bribery, conspiracy to commit bribery, and attempted grand larceny. The first two counts of the indictment related to the People’s claim that defendant, an attorney, had attempted to corrupt a sitting Judge for the purpose of "fixing” a pending criminal proceeding against a client. The third count was based on the alternate theory that there was in fact no actual bribery attempt, but that defendant had sought to obtain some $37,500 from his client under the false pretense that the money would be used to "fix” his case. That indictment was eventually dismissed, with permission to resubmit the matter to the Grand Jury, when it was determined that there had been certain irregularities in the initial Grand Jury proceedings. The Special Prosecutor then presented the matter to another Grand Jury, which returned the indictment now challenged by defendant. That indictment charges defendant with attempted grand larceny in the second degree, based on the allegation that defendant sought to obtain the money from his client by making false promise of a "fix”.

After the second indictment was handed up, defendant obtained permission from a Justice of the Appellate Division to move in that court to "prohibit” the Special Prosecutor from prosecuting the indictment, purportedly pursuant to subdivision 2 of section 149 of the Judiciary Law, on the ground that the Special Prosecutor lacked the requisite jurisdiction. Additionally, defendant requested such other relief as the court deemed appropriate. Both the Appellate Division and the People construed the application as a motion under subdivision 2 of section 149 of the Judiciary Law seeking either a writ of prohibition or dismissal of the indictment. Accepting defendant’s arguments addressed to the Special Prosecutor’s jurisdiction, the Appellate Division granted an order prohibiting the Special Prosecutor from proceeding on the indictment. Rather than dismissing the indictment, however, the court determined to leave the question of whether further action was appropriate to the local District Attorney.

Before discussing the merits of defendant’s arguments, it is necessary to dispose of a possible challenge to the jurisdiction of this court to entertain this appeal. It is now clear, if it were ever in question, that the People, upon a grant of permission, may appeal to this court from an order of the Appellate Division dismissing an indictment pursuant to a motion made in accordance with subdivision 2 of section 149 of the Judiciary Law, where such an appeal would be permissible from an order of the Appellate Division affirming a dismissal of an indictment by the Supreme Court (see People v Di Falco, 44 NY2d 482; People v Hattemer, 3 NY2d 939). It had been suggested that no appeal lies from an order granting a motion to dismiss brought in the Appellate Division rather than the Supreme Court pursuant to subdivision 2 of section 149, because of a claimed absence of statutory authority for such an appeal. That suggestion is untenable, for it would require this court to give subdivision 2 of section 149 a significance far greater than that intended by the Legislature.

Subdivision 2 of section 149 was enacted solely to remedy what was perceived as the possibility of abuse inherent in the prior law which permitted a defendant who had been indicted by a Grand Jury at an Extraordinary Trial or Special Term of Supreme Court to challenge that indictment at any regular term of the Supreme Court. The effect of the statute was to require any such motion to be made either at the Extraordinary Trial or Special Term from whence the indictment issued or, if permission could be obtained from a Justice of the appropriate Appellate Division, directly in the Appellate Division. It is beyond cavil that if a defendant successfully challenges an indictment at Supreme Court, the People may appeal that dismissal as of right to the Appellate Division (CPL 450.20). If the dismissal is affirmed, the People may then seek permission to appeal that determination to this court (CPL 450.90). The defendant may not deprive the People of their opportunity to appeal to this court from the dismissal of an indictment by the simple stratagem of initially making the motion to dismiss in the Appellate Division rather than at Supreme Court.

It should be noted, however, that a defendant may not seek to appeal to this court from the denial of a motion to dismiss made in the Appellate Division pursuant to subdivision 2 of section 149 of the Judiciary Law (People v Rinaldi, 34 NY2d 846; see Matter of Nigrone v Murtagh, 36 NY2d 421, 425-426; cf. People v Rinaldi, 34 NY2d 843). This is so because a defendant could not have appealed to the Appellate Division from the denial of a motion to dismiss originally made in Supreme Court, there being no statutory authorization for such an appeal. In essence, the mere availability of an opportunity to move for dismissal directly in the Appellate Division does not alter the appealability of the resulting order.

If the present case involved a typical motion to dismiss granted by the Appellate Division pursuant to subdivision 2 of section 149, there would thus be no doubt as to its appealability. However, defendant improperly sought to utilize the device of a subdivision 2 of section 149 motion at the Appellate Division to obtain a remedy which may not be obtained through such a motion. Even more unfortunate is the fact that the Appellate Division granted the improper remedy of prohibition. Subdivision 2 of section 149 of the Judiciary Law speaks only to motions which could have been made in an existing criminal proceeding directly at the Extraordinary Trial or Special Term of Supreme Court. The extraordinary writ of prohibition, however, may not be obtained by motion made in the course of a criminal proceeding. Prohibition is a civil remedy, available only via a civil proceeding brought pursuant to CPLR article 78. Simply stated, a writ of prohibition is not a remedy available by a subdivision 2 of section 149 motion.

That defendant sought and obtained an improper remedy, however, does not defeat the jurisdiction of this court. Such a conclusion would be irrational, for to adopt it would be to allow error compounded to become error invincible. To retain jurisdiction, we need only treat this so-called order of prohibition as what in fact it should have been, an order of dismissal. Since the defendant, in his moving papers, sought either prohibition or any other appropriate remedy, including, of course, dismissal, it cannot be said that the motion was improperly brought, for at least a part of the relief sought was the type available by a subdivision 2 of section 149 motion. The problem, therefore, lies in the fact that the Appellate Division exceeded its powers by purporting to grant relief which it lacked the authority to provide in the particular proceeding before it. Such an error in the form of relief given will not serve to preclude review by this court of an order which will result in termination of prosecution.

Were we to conclude that the Appellate Division were correct in determining that the Special Prosecutor lacked jurisdiction to prosecute this indictment, we would modify the order appealed from to provide for dismissal of the indictment, and remit the case to the Appellate Division for that court to determine whether to exercise its discretionary authority to transfer the matter, albeit not the indictment, to the local District Attorney (see People v Di Falco, 44 NY2d 482, 488, supra). As it is, however, a simple reversal and denial of the motion is appropriate, for the Special Prosecutor does indeed have the authority to prosecute this indictment.

The Special Prosecutor derives his authority from Executive Order No. 58 (9 NYCRR 1.58), which gives him jurisdiction to conduct prosecutions resulting from, inter alia, "any and all acts and omissions * * * by any person * * * in violation of any provision of state or local law and arising out of, relating to or in any way connected with corrupt acts or omissions by a public servant * * * arising out of, relating to or in any way connected with the enforcement of law or administration of criminal justice in the City of New York”.

The instant investigation, indictment, and prosecution, unlike the proceedings challenged in Matter of Dondi v Jones (40 NY2d 8), clearly fall within the ambit of this jurisdictional grant. Defendant contends that he may not be prosecuted by the Special Prosecutor because he is not accused of actually corrupting or attempting to corrupt a public official involved in the administration of the criminal justice system. He would dismiss the involvement of the law secretary in his scheme by suggesting that the law secretary acted only as a conduit of money, as a private individual, and not in his capacity as a public official involved in the administration of the criminal justice system. Defendant argues that in Dondi we held that the crime charged must constitute an actual corruption of the criminal justice system, not merely the appearance of corruption, and that the involvement of a law enforcement official in a scheme connected to the corruption of the criminal justice system will not serve to support an assertion of jurisdiction by the Special Prosecutor to prosecute an indictment which does not charge an actual corruption of that system. So narrow an interpretation of the Special Prosecutor’s jurisdiction has never been suggested by this court, and defendant’s reliance on Dondi is totally misplaced.

In Dondi, we held that the Special Prosecutor lacked jurisdiction to prosecute an attorney who had allegedly offered a police officer a bribe to give perjured testimony at the trial of a civil action. We rejected the theory propounded by the Special Prosecutor that jurisdiction could be founded solely on the fact that the person to be bribed was a public servant involved in the law enforcement system. Rather, we required that the particular act charged as well as a person involved in that act, be sufficiently connected to the administration of criminal justice. In the instant case, there exists a sufficient nexus between the criminal justice system and the crime charged in the indictment to support jurisdiction.

The scheme which defendant is alleged to have participated in reeks of the very type of corruption which led to the appointment of the Special Prosecutor. The use of a law secretary to a Judge to collect money supposedly intended to corrupt the administration of criminal justice is certainly "an act * * * connected with corrupt acts * * * by a public servant * * * arising out of, relating to or in any way connected with the enforcement of law or administration of criminal justice” (9 NYCRR 1.58). Upon this unassailable view, for the Special Prosecutor to retain jurisdiction, it is not necessary that the crime charged must itself constitute a corruption of the public official involved in the criminal justice system. Finally we note that the prosecution of this indictment arising from a crime allegedly committed in 1973 has been scandalously delayed, in part because of the defendant’s procedural maneuvers. The prosecution should be expedited.

Accordingly, the order of the Appellate Division should be reversed and the motion denied.

Fuchsberg, J.

(concurring). We are called upon to determine whether the Attorney-General, acting through a deputy appointed by him as Special Prosecutor by virtue of the authority vested by Executive Order No. 58 (9 NYCRR 1.58), may prosecute an indictment obtained against a lawyer, who, while representing a defendant in a criminal case, is charged with having attempted, with the apparent aid of a law secretary to a Supreme Court Justice, to obtain a sum of money from his client by falsely representing that he could corruptly influence the outcome of the case.

The Appellate Division, Second Department, entertaining defendant’s motion pursuant to subdivision 2 of section 149 of the Judiciary Law, "prohibited” the Special Prosecutor "from taking any further proceedings with respect to the * * * indictment” (58 AD2d 819). Leave to appeal was granted to the Special Prosecutor by a Judge of this court (42 NY2d 1094, 1097).

The threshold question is whether the Appellate Division’s order is appealable. Unlike Matter of Dondi v Jones (40 NY2d 8), where the Special Prosecutor was prohibited from proceeding under an indictment by means of an article 78 proceeding in the nature of prohibition, the defendant here has moved in the pending criminal action.

In noncapital criminal cases, the right of appeal is strictly statutory (NY Const, art VI, § 3, subd b; Matter of Santangello v People, 38 NY2d 536); no appeal lies from any determination in such a case unless there is express statutory authority (Matter of Alphonso C., 38 NY2d 923; People v Reed, 276 NY 5, 10; People v Zerillo, 200 NY 443). But, while we are therefore powerless to fill a void in our appellate statutes (People v Gersewitz, 294 NY 163, 169; cf. People v Mackell, 40 NY2d 59), we are not confined to a "mechanical, literal” reading of the applicable statute (People v Brooks, 34 NY2d 475, 477-478; cf. New York State Bankers Assn. v Albright, 38 NY2d 430, 436-437).

Thus, although the literal language of the Criminal Procedure Law allows an appeal to this court from an order of the Appellate Division only if it was "entered upon an appeal taken to such intermediate appellate court” (CPL 450.90, subd 1), we have held that an order entered by the Appellate Division acting as a court of original instance under subdivision 2 of section 149 of the Judiciary Law is appealable to this court if it would have been appealable had it issued after an appeal to the Appellate Division (People v Di Falco, 44 NY2d 482, 485; People v Rinaldi, 34 NY2d 846; People v Hattemer, 3 NY2d 939). In so deciding, we were impelled by the dictates of history and logic to eschew a formalistic reading of the statute.

That history tells us that prior to 1953 a motion to dismiss an indictment returned at an Extraordinary Term of the Supreme Court could be brought before a regular term of that court anywhere in the State (see, e.g., People v Harris, 182 Misc 787, revd 268 App Div 731, revd 294 NY 424). The opportunity thus presented to engage in forum shopping to obtain dilatory or other tactical advantage had apparently been abused to a point where the State Crime Commission and the Governor recommended the adoption of what was to become subdivision 2 of section 149 of the Executive Law (Third Report of New York State Crime Commission, NY Legis Doc, 1953, No. 68, p 14; NY Legis Ann, 1953, pp 479-480). Enacted at a special session of the Legislature, it provides that such a motion can be made only at either the Extraordinary Term or, at the option of the moving party, before the Appellate Division, by permission of a Justice thereof, in the department in which the Extraordinary Term has been convened (L 1953, ch 890).

Unquestionably, until then the People could appeal a dismissal of an indictment as of right to the Appellate Division and, upon that court’s affirmance, if leave were granted, could then appeal to this court (former Code Crim Pro, § 519); accordingly, the litigation did not necessarily terminate at the Appellate Division level. The Appellate Division was henceforth to replace the other terms as an alternative forum before which the motion could be returnable. That is the only change the amendment was to effect. Certainly, neither the report of the commission nor the Governor’s message gave the slightest hint that the new legislation they were sponsoring was intended to empower a defendant, simply by choosing to move in the first instance in the Appellate Division, to thereby deprive the People of their right to appeal. Such a reading would have confounded the purpose behind subdivision 2 by, counterproductively and unrelatedly, restricting the People’s recognized right of appeal when the announced design of the statutory change was to move in just the opposite direction — to eliminate a ready avenue by which defendants could too easily engage in maneuvers to frustrate the expeditious handling of special prosecutions.

Di Falco, Rinaldi and Hattemer, in resolving any possible outstanding doubt on this question, do not, however, completely dispose of the appealability issue. Each of these cases involved an order dismissing an indictment, from which appeal to an intermediate appellate court is directly authorized by CPL 450.20 (subd 1). In the case before us now, neither the relief sought nor that which was granted expressly included dismissal. Instead, what was explicitly demanded and obtained was an order barring the Special Prosecutor from proceeding. But, while the Criminal Procedure Law makes no provision for appeal from an order precluding a particular prosecutor from acting under a specific indictment, since, in the present case, insofar as the Special Prosecutor is concerned it terminates the prosecution, for purposes of our jurisdiction we treat the disposition below as the functional equivalent of a dismissal of the indictment (cf. People v Coppa, 45 NY2d 244).

However, this is not to say from a substantive point of view, that, the relief granted by the Appellate Division was available by motion in the pending criminal action. It was not. Nothing in the Criminal Procedure Law authorizes a court to oust a prosecutor from conducting proceedings on a particular indictment. It follows that, if the Special Prosecutor lacks authority to appear before the Grand Jury, the only remedy available under the Criminal Procedure Law is dismissal of the indictment (see People v Di Falco, 44 NY2d 482, supra).

Furthermore, if an indictment is validly obtained, a subsequent conviction will not be reversed on appeal solely because a prosecutor improperly acted ultra vires in prosecuting the case (see People v Van Sickle, 13 NY2d 61; People v Kramer, 33 Misc 209, 220; cf. People v Citadel Mgt. Co., 78 Misc 2d 626, revd on other grounds 80 Misc 2d 668; contra, People v Vlasto, 78 Misc 2d 419). The only method by which such official may be disqualified ab initio is via an article 78 proceeding in the nature of prohibition, in which the issuance of a writ lies in the discretion of the court (Matter of Dondi v Jones, 40 NY2d 8, 15, supra).

In any event, even if the defendant had pursued one of the two indicated procedural paths open to him — a motion to dismiss or an article 78 proceeding — under the facts here his contention that the Special Prosecutor was without authority would be unavailing.

Defendant’s prosecution may be said to have had its genesis in an indictment of one Giovanni Reyes for the attempted murder of two women. Reyes, who had learned through his work as a registered informer for the Department of Investigation of the City of New York that a woman named Loretta Errico claimed to be in a position to influence the outcome of matters pending in that city’s criminal courts, successfully solicited her help. Errico then, in turn, enlisted the aid of Frank Giudice, law secretary to a Supreme Court Justice in Kings County, where the case was pending. In the course of carrying out their undertaking, Errico and Giudice recommended that Reyes retain the defendant as his lawyer. Before this, however, first Reyes and later Errico, presumably to serve their own purposes, had agreed to co-operate clandestinely with the office of the Special Prosecutor in this affair. Subsequently, upon being confronted with electronic and wiretap evidence against him, the law secretary also decided to throw in his lot with the investigating forces.

The investigation originally led to an indictment charging the defendant and one of his law partners with conspiracy to commit bribery, attempted bribery and attempted grand larceny. That indictment was dismissed because of various irregularities, including, notedly, that the Special Prosecutor’s predecessor in office had failed to reveal to the Grand Jury that a key prosecutorial witness (the law secretary) had been granted immunity. Leave to represent the case to another Grand Jury was granted, and the new indictment with which we are now concerned followed. It alleges only the crime of attempted grand larceny and that solely against the defendant, with the unindicted law secretary named as a participant. The minutes of the Grand Jury reveal that, whatever representations the defendant and Giudice may have made to Reyes, there is no evidence that any attempt was in fact made to exert influence on court personnel in his behalf.

It is defendant’s position, therefore, that prosecution of the offense as currently charged is beyond the ambit of the Special Prosecutor’s authority. Defendant concedes that, at the outset, the investigation could reasonably have been expected to produce evidence bearing on specific acts of corruption in the criminal justice system. Nonetheless, he argues that, since the case as it has now emerged is not one in which he is accused of bribery or of any other specific act of corruption, but is essentially one for defrauding his client by falsely pretending that he could corruptly influence the attempted murder prosecution, the pendency of the client’s criminal case was no more than the occasion for the larceny. He further asserts that the role the law secretary played in the transacr tion was not qua law secretary, but was in the private capacity of intermediary between the defendant and Reyes. From all this, he would have us conclude that there was here no alleged act or omission "relating to or in any way connected with the * * * administration of criminal justice” (Executive Order No. 58, 9 NYCRR 1.58 [emphasis added]). We cannot agree with that analysis.

While a Special Prosecutor, acting pursuant to an order issued under subdivision 2 of section 63 of the Executive Law may not operate beyond the grant of authority (Matter of Dondi v Jones, 40 NY2d 8, 19, supra), only a sterile reading of Order No. 58 would fail to place the new indictment within its parameters, both because of the way in which the defendant’s alleged scheme was implemented and because of the effect which, by its inherent nature, that scheme could be expected to have on the appearance of corruption in the administration of criminal justice (see Matter of Dondi v Jones, supra, p 16).

It is irrelevant that neither the law secretary nor the defendant engaged in a specifically determinable act of corruption. The false representation appears to have had an equally efficient potential for inducing payment. More important, in the context of this case, the mantle of the secretary’s office could not be so conveniently discarded as the defendant might wish. Indeed, it is to be doubted that the client, once guided to the secretary and then to the lawyer in order to have his case "fixed”, would have taken a disclaimer as more than mere pretense; the very fact that the courier who delivered the $50,000 in cash which constituted the consideration for the alleged act of corruption held the position of secretary to a Justice of the Supreme Court had to lend an aura of credibility to the impressions and representations on which the client would rely. Less dramatic episodes also figured in the imagery; for instance, the defendant had the secretary keep him posted on the court’s schedule, not so much to help him "maneuver” the case as to have it appear that he could. In all, there were created permissible, if not compelling, inferences that the defendant assigned these tasks to the secretary because he perceived that the exploitation of Giudice’s official status would bolster the pretense of corruption.

More broadly, the permeating influence of conduct which undermines the appearance of the freedom from corruption which is so essential to a viable criminal justice system may indeed be more pernicious in its effect than would a discrete, and therefore perhaps confined, act of corruption itself. In institutions, as with men and women, a good name is the "immediate jewel of their souls” (Shakespeare, Othello, act III, scene 3, line 155).

For the reasons stated, the order of the Appellate Division should be reversed and the motion denied.

Chief Judge Breitel and Judges Jones and Wachtler concur with Judge Gabrielli; Judge Fuchsberg concurs in a separate opinion in which Judges Jasen and Cooke concur.

Order reversed, etc. 
      
      .The Executive Order, in pertinent part, requires the Attorney-General by his assistants or deputies to attend before an Extraordinary Special and Trial Term of the Supreme Court in the County of Kings and its drawn Grand Juries,
      "for the purpose of managing and conducting in said court and before said grand jury and said other grand juries any and all proceedings, examinations and inquiries and any and all criminal actions and proceedings which may be had or taken by or before said grand jury and grand juries concerning or relating to:
      "(a) any and all corrupt acts and omissions by a public servant or former public servant occurring heretofore or hereafter in the County of Kings in violation of any provision of state or local law and arising out of, relating to or in any way connected with the enforcement of law or administration of criminal justice in the City of New York;
      "(b) any and all acts and omissions and alleged acts and omissions by any person occurring heretofore or hereafter in the County of Kings in violation of any provision of state or local law and arising out of, relating to, or in any way connected with corrupt acts or omissions by a public servant or former public servant arising out of, relating to or in any way connected with the enforcement of law or administration of criminal justice in the City of New York”.
     
      
      .Section 149 of the Judiciary Law authorizes the appointment of Extraordinary Special or Trial Terms by the Governor. Subdivision 2 provides: "A motion involving a matter pending before such extraordinary special or trial term shall be made returnable at such term, except that, in the exercise of discretion, a justice of the appellate division of the supreme court in the department in which such extraordinary special or trial term is being held may grant permission for such motion to be heard at a term of such appellate division.”
     
      
      .The Appellate Division’s memorandum describes the motion as one to "prohibit the Special Prosecutor from conducting any further proceedings on this indictment or, alternatively, for dismissal of the indictment”. But the moving papers, aside from a broad request for omnibus relief, specifically ask merely that the Special Prosecutor be barred from further prosecution of the indictment.
     
      
      . An article 78 proceeding, even though it seeks relief in relation to a criminal proceeding, is classified as civil. Appeals therein are governed by the broad provisions of CPLR 5601 and 5602. (See Cohen and Karger, Powers of the New York Court of Appeals, § 189, subd [d], p 711.)
     
      
      . The record shows that the defendant told the secretary to keep $12,500 for himself.
     