Brown v. Abrams

Appeal from a judgment of the Supreme Court at Special Term (Harvey, J.), entered August 20, 1980 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to prohibit respondents from conducting a criminal investigation of petitioner pursuant to Executive Order No. 78 (9 NYCRR 3.78). Petitioner learned that his employment practices as Vice-Chairman of the Temporary State Commission on Child Welfare were being investigated. Petitioner sought a writ of prohibition to enjoin the investigation on the grounds that it was conducted outside the scope of authority granted respondents under Executive Order No. 78. Special Term dismissed petitioner’s application after an in camera examination of the Grand Jury proceedings. The decision and the record of the in camera proceedings were sealed on September 17, 1980 and ordered preserved for appellate review. Respondents subsequently moved to dismiss petitioner’s appeal for failure of prosecution. This motion was granted unless petitioner perfected his appeal by January 26, 1981 which was done. Since the initiation of these proceedings, the investigation has been completed and defendant has been indicted, tried and convicted. *741The relief sought by petitioner, in the present posture of the proceeding, has been rendered moot. We note that petitioner’s challenges to the authority of the Special Prosecutor have been adequately safeguarded by the action of Special Term in preserving the record for appellate review. Any error in the proceedings can be heard and disposed of in the ordinary course of petitioner’s appeal from the judgment of conviction (La Rocca v Lane, 37 NY2d 575, 579, cert den 424 US 968). We note, as well, that the jurisdictional challenge to the authority of the Special Prosecutor has also been preserved for appeal by defense counsel’s motion to dismiss the indictment made before the inception of the trial. Judgment affirmed, without costs. Main, J.P., Casey, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.