Does a New York district attorney have to prosecute every violation of a village's local laws, or can the DA delegate that work to village officials, especially when there's a conflict of interest?

Plain-English summary

The Village of Watkins Glen had a disagreement with the Schuyler County District Attorney. The village attorney took the position that County Law § 700 makes it the DA's mandatory duty to conduct all prosecutions for crimes and offenses cognizable in the county, including violations of village local laws. The village attorney argued that when the DA has a conflict of interest, the proper response is the appointment of a special district attorney under § 701, not delegation to the village attorney or village officials. The DA had previously offered to authorize the village to handle a case where the DA had a conflict.

The AG sided with the DA on the framework.

The AG cited People v Van Sickle, 13 NY2d 61 (1963), and People v Czajka, 11 NY2d 253 (1962), for the rule that the district attorney's office is not required to prosecute every offense in the county. The DA exercises broad prosecutorial discretion and can fulfill the statutory responsibilities of County Law § 700 by making arrangements that ensure the DA knows about and consents to local prosecutions. Under those arrangements, petty offenses and local-law violations can be prosecuted by municipal attorneys, police officers, code enforcement officers, and other local officials, with the DA's consent.

The AG had reached the same conclusion in Op Atty Gen (Inf) No. 96-31. Resource constraints can require the DA to focus on serious offenses, leaving local-law enforcement to local officials. That is a legitimate exercise of prosecutorial discretion, not an abandonment of statutory duty.

Village Law § 20-2006(2) provides the affirmative authority on the village side. The board of trustees may give the village attorney responsibility to prosecute violations of village local laws and regulations, and may provide reasonable compensation for that service. The opinion says the DA may arrange for local officials to prosecute with the DA’s knowledge and consent, and the village board may authorize its attorney to prosecute village-law violations.

The Watkins Glen DA's specific posture (continuing to prosecute most matters but declining one case due to conflict) was consistent with the cases and prior AG opinion. For the particular conflict described, the AG approved the DA’s decision to authorize village officials to prosecute on his behalf. The opinion does not analyze the separate § 701 special-district-attorney procedure.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the AG require appointment of a special district attorney under § 701?

No. The village attorney proposed that procedure, but the AG concluded the DA could instead authorize village officials to prosecute the particular conflict case on his behalf. The opinion does not explain the § 701 appointment process or compare its appropriate uses with village prosecution. See the original opinion.

Is the DA's duty under § 700 absolute?

No. The AG cited People v Van Sickle and People v Czajka for the rule that § 700 leaves the DA with wide discretion in how to fulfill the responsibility. The DA may fulfill prosecutorial duties through arrangements under which the DA knows of the local prosecutions and consents to appearances on the DA’s behalf. The opinion also notes limited resources may lead the DA to concentrate on serious offenses.

Why can village attorneys prosecute violations?

Two reasons combine. First, the case law treats the DA's discretion as broad enough to authorize delegation of petty offenses, with the DA's knowledge and consent. Second, Village Law § 20-2006(2) is express affirmative authority for the village board to give the village attorney prosecution responsibility. In the arrangements described by the AG, the DA knows of and consents to appearances on the DA’s behalf.

Does the village have to compensate the village attorney for prosecution work?

Village Law § 20-2006(2) provides that the board "may provide reasonable compensation" for the service. The compensation is at the board's discretion, but it must be reasonable. The opinion does not discuss particular fee arrangements.

Background and statutory framework

County Law § 700 imposes on the DA the duty to conduct all prosecutions for crimes and offenses cognizable by the county's courts. The village attorney cited § 701 as a proposed response to the DA’s conflict. The AG did not analyze that procedure.

Village Law § 20-2006(2) authorizes the village board to grant the village attorney responsibility to prosecute violations of village local laws and regulations and to compensate the attorney for that work.

The leading cases on prosecutorial discretion under § 700 are People v Van Sickle, 13 NY2d 61 (1963), and People v Czajka, 11 NY2d 253 (1962). The Court of Appeals held that the DA satisfies § 700 by arranging for local prosecutions with the DA's knowledge and consent; the statutory duty does not require personal handling of every matter in the county.

The AG cited Op Atty Gen (Inf) No. 96-31 for the DA’s discretion and Op Atty Gen (Inf) No. 86-61 for village-board authority under Village Law § 20-2006(2).

Citations

• County Law § 700 (DA's general prosecutorial duty).
• County Law § 701 (special district attorney appointment).
• Village Law § 20-2006(2) (village board may grant village attorney prosecution authority with reasonable compensation).
• People v Van Sickle, 13 NY2d 61 (1963) (DA's wide prosecutorial discretion; arrangement-based fulfillment of § 700).
• People v Czajka, 11 NY2d 253 (1962) (same).
• Op Atty Gen (Inf) No. 96-31 (DA not required to prosecute every village local law violation; delegation authority).
• Op Atty Gen (Inf) No. 86-61 (village attorney prosecution authority under Village Law).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_97-52_pw.pdf

Original opinion text

COUNTY LAW §§ 700, 701; VILLAGE LAW § 20-2006(2). The district attorney has wide discretion as to whether to prosecute violations of village local laws. He may perform that prosecutorial function or, in his discretion, delegate that responsibility to the municipal attorney or to other village officials.

November 19, 1997
Connie Fern Miller, Esq.
Village Attorney
Village of Watkins Glen
601 North Decatur Street
Watkins Glen, NY 14891

Informal Opinion
No. 97-52

Dear Ms. Miller:
You have asked whether a district attorney, citing a conflict of interests, may refuse to prosecute violations of a village's local law, thereby forcing the village either to hire outside counsel or have its own enforcement officer prosecute the case. You have attached correspondence which further defines the issue. In your April 25, 1997 letter to the district attorney, you cite section 700 of the County Law, which provides that the district attorney has the duty to conduct all prosecutions for crimes and offenses cognizable by the courts of the county. Based on this provision you conclude that the prosecution of a violation of a village local law is a required duty of the office of district attorney. You state that as village attorney you have no authority to prosecute any case and suggest that if the district attorney has a conflict of interests the proper procedure is appointment of a special district attorney, as prescribed by County Law § 701. The district attorney, in an April 14, 1997 letter to the mayor of the village, explains that as a courtesy his office has prosecuted violations of village local laws but for various reasons, including a conflict of interests, he may not be able to perform this service. In the April 14 letter the district attorney explains that in the case at hand his office has a conflict of interests and, therefore, he is permitting village officials to prosecute this matter. The district attorney concludes his letter by indicating his willingness to continue prosecuting violations of local laws on behalf of the village in the future, where there is no conflict.

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In an April 29, 1997 letter to you, the district attorney cites an opinion of this office and decisions of the Court of Appeals for the proposition that section 700 of the County Law has been construed to allow the district attorney to delegate authority to prosecute violations of local laws to municipal attorneys and other local officials. In a recently issued informal opinion (No. 96-31) the issue was whether the district attorney is required to prosecute violations of village local laws and regulations. As you will see, it has been long established that the district attorney's office need not prosecute every offense committed within the county. Id., citing, People v Van Sickle, 13 NY2d 61 (1963); People v Czajka, 11 NY2d 253 (1962). The district attorney can fulfill his prosecutorial responsibilities by making arrangements whereby he knows of all prosecutions in the county and consents to appearances on his behalf. Op Atty Gen (Inf) No. 96-31. Under these arrangements, petty crimes and offenses may be prosecuted by local officers, municipal attorneys, police officers and other local enforcement officials. Id. We note that under section 20-2006(2) of the Village Law the board of trustees of a village may grant to a village's attorney responsibility to prosecute violations of village local laws and regulations and may provide reasonable compensation for this service. See, Op Atty Gen (Inf) Nos. 96-31, 86-61. In our recent opinion, we reasoned that prosecutions by local officials and other local enforcement officers of violations of local regulations may be necessitated by the limited resources of the district attorney's office. Op Atty Gen (Inf) No. 96-31. We noted that the district attorney has wide discretion in the prosecution of offenses and may determine that effective use of his office's resources does not permit prosecution of local regulations by his office's personnel. Id. The resources of the district attorney's office may be fully required in the investigation and prosecution of serious offenses occurring within the county. Under these circumstances, it may be necessary to rely upon local officials, such as municipal attorneys, to prosecute violations of local regulations of a particular municipality. Id. We concluded in our 1996 opinion that the district attorney is not required to prosecute violations of village local laws and

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regulations. The district attorney may determine, in consideration of the available resources of his office, that it is necessary to concentrate on prosecution of serious crimes occurring within the county. Therefore, we believe that the view of the district attorney of your county is consistent with our prior opinions and decisions of the Court of Appeals. The district attorney has indicated his willingness to continue prosecuting violations of village local laws on behalf of the village in that his assistant district attorneys are conveniently present in the village court. The district attorney's judgment that in a particular case his office has a conflict of interests and is not able to prosecute on behalf of the village is consistent with established case law recognizing his broad prosecutorial discretion. In this situation, the district attorney has agreed to authorize officials of the village to prosecute on his behalf, a decision which clearly is authorized under the above-cited decisions of the Court of Appeals and the 1996 opinion of the Attorney General. The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office. Very truly yours,

JAMES D. COLE
Assistant Attorney General
In Charge of Opinions