
    Anthony Della Pietra et al., Respondents, v State of New York, Appellant.
    Argued April 21, 1988;
    decided June 9, 1988
    
      POINTS OF COUNSEL
    
      Robert Abrams, Attorney-General (Michael S. Buskus, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.
    I. The decision of the court below impermissibly chilled prosecutorial conduct, even though the Task Force may and does perform mixed "prosecutorial” and "investigatory” functions. (Imbler v Pachtman, 424 US 409; Lerwill v Joslin, 712 F2d 435; Ybarra v Reno Thunderbird Mobile Home Vil. 723 F2d 675; Hawkins v Steward, 653 F Supp 868; Goldschmidt v Patchett, 686 F2d 582; Atkins v Lanning, 556 F2d 485; McSurely v McClellan, 697 F2d 309, 474 US 1005; Freeman v Blair, 793 F2d 166; Barbera v Smith, 654 F Supp 386.) II. At the very least, prosecutorial cooperation with State Police in applying for warrants prior to Matter of B. T. Prods., should entitle the Task Force to receive qualified immunity. (Butz v Economou, 438 US 478; Harlow v Fitzgerald, 457 US 800; Martin v D. C. Metropolitan Police Dept., 812 F2d 1425, 817 F2d 144, 824 F2d 1240; Malley v Briggs, 475 US 335.) III. Claimants are not entitled to recover damages for lost profits or net worth. (Lloyd v Town of Wheatfield, 67 NY2d 809; Kenford Co. v County of Erie, 67 NY2d 257.)
    
      James M. Hartman and Philip G. Spellane for respondents.
    I. The court below correctly held that the State was not entitled to absolute immunity. This court has twice held that the prosecutorial power necessary to apply for and execute a search warrant is expressly contingent upon the requisite approvals which the Organized Crime Task Force concededly never obtained. (Imbler v Pachtman, 424 US 409; Powers v Coe, 728 F2d 97; Taylor v Kavanagh, 640 F2d 450; Matter of B. T. Prods. v Barr, 44 NY2d 226; People v Rallo, 39 NY2d 217; Lee v Willins, 617 F2d 320, 449 US 861; Barbera v Smith, 654 F Supp 386; Marrero v City of Hialeah, 625 F2d 499, cert denied sub nom. Rashkind v Marrero, 450 US 913; McSurely v McClellan, 697 F2d 309.) II. The Organized Crime Task Force enjoys no qualified immunity because, in failing to obtain the necessary approvals, it violated law which was clearly established by statute and this court. (Harlow v Fitzgerald, 457 US 800; Matter of B. T. Prods. v Barr, 44 NY2d 226; People v Rallo, 39 NY2d 217; Broughton v City of New York, 91 Misc 2d 543, 95 Misc 2d 807; Jones v Johnson, 402 F Supp 992.) III. The Organized Crime Task Force’s conduct was tortious in several respects. In addition to negligence, the State was guilty of malicious prosecution and conversion as a result of which claimants suffered substantial damages. (Parvi v City of Kingston, 41 NY2d 553; Frady v State of New York, 19 AD2d 783; Herman v State of New York, 78 Misc 2d 1025; Martin v Herzog, 228 NY 164; Beauchamp v New York City Hous. Auth., 12 NY2d 400; Sanchez v Village of Liberty, 49 AD2d 507, 38 NY2d 835; Coolidge v New Hampshire, 403 US 443; Matter of B. T. Prods. v Barr, 44 NY2d 226; Palsgraf v Long Is. R. R. Co., 248 NY 339.) IV. Claimants are entitled to damages for the destruction of their business. The State offered no proof to rebut the damages proven by claimants. (Woodson v New York City Hous. Auth., 10 NY2d 30; Hull v Littauer, 162 NY 569; Donovan v Burkowski, 51 AD2d 878; Kenford Co. v County of Erie, 67 NY2d 257; Lloyd v Town of Wheatfield, 67 NY2d 809; Steitz v Gifford, 280 NY 15; Contemporary Mission v Famous Music Corp., 557 F2d 918; Story Parchment Co. v Paterson Co., 282 US 555; Taylor v Bradley, 39 NY 129.)
   OPINION OF THE COURT

Hancock, Jr., J.

Claimants have recovered a judgment against the State for damages to their business resulting from actions of the New York State Organized Crime Task Force in illegally entering and searching their premises; seizing books, records and other property; and retaining them for a prolonged period of time. The conduct of the State agents in invading these claimants’ rights, we have previously held, was without any statutory or other authority (see, Matter of B. T. Prods. v Barr, 44 NY2d 226, 236). The principal issue presented by the State in its appeal is whether, notwithstanding this lack of authority, it may assert absolute prosecutorial or quasi-judicial immunity for the acts of its agents. For the reasons which follow, we hold that it may not. Moreover, in view of the undisturbed findings of bad faith, we also conclude that the State’s assertion of qualified immunity here is unavailing.

I

Barry Tuttle and claimant Anthony Della Pietra were co-owners of claimant B. T. Productions, Inc., which operated a dinner theater in East Rochester, New York. Although the business was doing well, the partners had a falling out over how it should be run. When Della Pietra took over sole operation of the business and tried to make Tuttle sell him his interest, Tuttle, apparently out of spite, went to the Task Force and reported that the business was engaged in organized crime.

Based in part on an affidavit signed by Tuttle, the Task Force obtained a search warrant and seized the bulk of the theater’s books and records. After trying repeatedly to recover them, Della Pietra and B. T. Productions commenced a CPLR article 78 proceeding seeking a writ of prohibition vacating the search warrant and compelling return of the items seized. The Appellate Division granted the petition and issued the writ (Matter of B. T. Prods. v Barr, 54 AD2d 315). We affirmed, holding that due to "the absence of any statutory authority to obtain a search warrant, it is clear that the Task Force lacked the power to make such an application, and thus the court exceeded its jurisdiction in issuing the warrant” (44 NY2d 226, 236, supra). Nearly two years after the seizure of claimants’ property, it was returned to them. They were never indicted or prosecuted. No evidence against them was ever presented to a Grand Jury or other accusatory authority.

In the Court of Claims, claimants presented proof that the illegal search and seizure and the surrounding adverse publicity caused their customers to stay away and ultimately forced B. T. Productions into bankruptcy. The court found the State responsible and assessed damages in the amount of $777,000. The Appellate Division modified, adding interest from the date the claim was filed, and otherwise affirmed. We now affirm.

II

The State contends that no recovery should have been allowed because, contrary to the holdings of the lower courts, the Task Force’s conduct in obtaining and executing the search warrant was either prosecutorial or quasi-judicial in nature and, therefore, entitled to absolute immunity (see, Imbler v Pachtman, 424 US 409; Tarter v State of New York, 68 NY2d 511; Tango v Tulevech, 61 NY2d 34; Schanbarger v Kellogg, 35 AD2d 902, appeal dismissed 29 NY2d 649, cert denied 405 US 919). We disagree.

In the usual case where the government professes entitlement to absolute sovereign immunity, no question arises concerning the authority of its officials to act (see, e.g., Arteaga v State of New York, 72 NY2d 212, 218; Tango v Tulevech, supra, at 41-42). The sole question, ordinarily, is whether the official actions constitute discretionary conduct which sufficiently manifests the attributes of judicial decision-making to merit full immunity (Arteaga v State of New York, supra, at 217; Tarter v State of New York, supra, at 518-519; Santangelo v State of New York, 101 AD2d 20, 28-29). Where, however, the official "has stepped outside the scope of his authority” (Teddy’s Drive In v Cohen, 47 NY2d 79, 82) and acted in the clear absence of all jurisdiction or without a colorable claim of authority, there is plainly no entitlement to absolute immunity, even if the underlying acts are prosecutorial or quasi-judicial in nature (see, Rudow v City of New York, 822 F2d 324, 327-328 [2d Cir]; Ybarra v Reno Thunderbird Mobile Home Vil., 723 F2d 675,678 [9th Cir]; Prosser and Keeton, Torts § 132, at 1058-1059 [5th ed]). Thus, if, as claimants contend, the Task Force acted without any colorable claim of authority, the State would not be entitled to absolute immunity, even if its acts would otherwise have been considered quasi-judicial in nature and for that reason deserving of full protection.

With few exceptions, the Legislature has delegated the responsibility for prosecuting persons accused of crime solely to the District Attorney, the public officer entrusted with the general prosecutorial authority for all crimes occurring in the county where elected (see, County Law §§ 700, 927; Matter of Darvin M. v Jacobs, 69 NY2d 957, 959; see also, Matter of Turecamo Contr. Co., 260 App Div 253, 257). The Attorney-General, by contrast, is given no general prosecutorial authority and, except where specifically- permitted by statute (see, e.g., General Business Law §§ 358, 692; Executive Law § 70-a), has no power to prosecute criminal actions (see, Matter of B. T. Prods. v Barr, 44 NY2d 226, 236, supra; People v Di Falco, 44 NY2d 482, 485-486; People v Rallo, 39 NY2d 217, 221-223). Similarly, the Task Force, as an arm of the Attorney-General and a creature of the State, "has no power other than that given it by the Legislature” (Matter of B. T. Prods. v Barr, supra, at 236; see, People v Di Falco, supra, at 486; Governor’s Mem in support of Executive Law § 70-a, reprinted in 1970 McKinney’s Session Laws of NY, at 3142).

The Legislature enacted Executive Law § 70-a for the specific purpose of creating an agency capable of investigating and prosecuting multicounty organized criminal activity, a duty which local prosecutors were unable to perform satisfactorily "because of their limited resources and restricted geographical jurisdiction” (see, Legislative Findings, L 1970, ch 1003, §1 [3]). This exceptional grant of prosecutorial authority to the Task Force was not self-executing and it was subject to specific limitations and conditions (see, Executive Law § 70-a [7]; cf., Matter of Additional Jan. 1979 Grand Jury v Doe, 50 NY2d 14, 18 [evaluating Attorney-General’s power under similar provision in Executive Law § 63 (2)]). Thus, in Matter of B. T. Prods. v Barr (supra) we held that, without prior authorization by the Governor and approval by the local District Attorney, "it is clear that the Task Force lacked the power” to apply for and execute the search warrant here in question (Matter of B. T. Prods. v Barr, supra, at 236; see, Governor’s Mem in support of legislation, op. cit., at 3143; but see, n below).

Notwithstanding the import of our decision in Matter of B. T. Prods. v Barr (supra), the State maintains that its Task Force agents, as representatives of the Attorney-General’s office, were acting under some colorable authority in obtaining the search warrant; that they were merely operating under a mistaken assumption as to the scope of their jurisdiction. The argument, however, simply overlooks the essential point that the Attorney-General is without any prosecutorial power except when specifically authorized by statute. Here, the agents and the Attorney-General were not prosecutors acting illegally or in excess of their authority; they were not prosecutors at all (cf., Rudow v City of New York, supra, at 329 [Human Rights Commission staff attorney acting without "the bureaucratic boundaries of her position” but, nevertheless, within the general jurisdiction of the agency]; Lerwill v Joslin, 712 F2d 435, 439-440 [10th Cir] [city attorney having prosecutorial authority for misdemeanors mistakenly presenting complaint involving felony charge]; see also, Barr v Abrams, 810 F2d 358, 361-362 [2d Cir]). We conclude, then, that because the Task Force agents had no colorable claim of authority, the State has no basis for asserting absolute immunity.

Ill

Defendant argues, nevertheless, that even if the actions of its Task Force agents were performed in the clear absence of jurisdiction or authority, it would be entitled to qualified immunity. On these facts, however, any claim of qualified immunity would not shield the State from liability.

Qualified immunity does not shield the State from liability where its officials acted in bad faith or without a reasonable basis (see, Arteaga v State of New York, supra, at 216; Matter of Friedman v State of New York, 67 NY2d 271, 283-285; cf., Tango v Tulevech, supra, at 42). The undisturbed findings support the Court of Claim’s conclusions that "the Task Force was careless, was grossly negligent and recklessly exercised a power over claimant which it did not rightly have”, and that its conduct in procuring and executing the search warrant "was unconscionable, to phrase it in the most charitable light” (emphasis added). These factual findings, which are fully dispositive of the legal issue concerning qualified immunity under established New York law, have support in the record and, therefore, are beyond our review.

We have considered the State’s other contentions and find them to be either unpreserved or without merit.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order affirmed, with costs. 
      
       Executive Law § 70-a was amended after the execution of the warrant and our decision in Matter of B. T. Prods. v Barr (44 NY2d 226). The law as it existed at the time the action arose applies to this case.
     