Can a county attorney prosecute violators of a county's electrical and mechanical trade licensing laws, instead of the district attorney?

Plain-English summary

Putnam County's Deputy County Attorney asked whether the county attorney's office could prosecute violations of the county's mechanical trade laws (electrical, plumbing, and similar trade licensing offenses). The violations were classified as either misdemeanors or violations and were subject to fines and possible imprisonment.

The AG said yes, with conditions.

Under County Law § 700(1), the district attorney has the statutory responsibility to conduct all prosecutions of crimes and offenses in the county. That is the default. But the rule is not absolute.

The Court of Appeals has long recognized that the district attorney and assistants need not personally handle every offense. People v Soddano, People v Van Sickle, and People v Czajka hold that petty crimes and offenses can be prosecuted by administrative officers of a local government, and even by private attorneys, where the district attorney has effectively delegated that responsibility. A series of earlier AG opinions (Op Atty Gen (Inf) No. 92-70, No. 90-11, 1989 Op (Inf) 167, 1986 Op (Inf) 123, 1983 Op (Inf) 167, 1979 Op (Inf) 245) reach the same conclusion.

The two-part condition:

1. District attorney's consent and notice system. The district attorney must "set up a system whereby he or she knows of all criminal prosecutions in the county and consents to appearances on his/her behalf." This is the Van Sickle requirement. The district attorney retains ultimate responsibility for criminal prosecution; the delegated prosecutor acts on the district attorney's behalf, and the district attorney must have visibility and consent rights.

2. County attorney's authority. County Law § 501 enumerates the county attorney's duties. § 501(3) provides that the county attorney may also "perform additional duties as may be prescribed by law and directed by the board of supervisors." The county attorney can take on prosecution duty only if the board of supervisors (or modern functional equivalent, the county legislature) directs it.

Both conditions must be met. Without the district attorney's system and consent, the county attorney has no legal authority to appear. Without the board of supervisors' direction, the county attorney's office lacks internal authorization to undertake the work.

The opinion is administrative rather than novel. It explains how to lawfully assign trade-law prosecutions to the county attorney's office without running afoul of the district attorney's primary responsibility under County Law § 700(1). The framework leaves the district attorney in charge: he or she designs the notice system and grants or denies consent in any given case. The county attorney's office simply provides the on-the-ground prosecutorial labor.

Currency note

This opinion was issued in 1998. 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

Why doesn't the district attorney just handle these cases directly?

Trade-law violations are typically high-volume, low-stakes prosecutions that consume time without serving the core district attorney function of prosecuting felonies and major crimes. Many county district attorneys consent to delegating these prosecutions to county attorneys, town attorneys, or other administrative-side counsel so the district attorney can focus prosecutorial resources where they matter most.

Does the county attorney need a separate appointment?

Not as a prosecutor per se. The county attorney remains the county attorney; the district attorney's consent system authorizes appearances "on the district attorney's behalf." Functionally the county attorney acts as the prosecutor for the limited matters consented to. The arrangement is typically documented in a memorandum or standing order from the district attorney.

Can the district attorney withdraw consent in a specific case?

Yes. The consent is the district attorney's; he or she can decline to consent to a county attorney appearance in any particular case. The county attorney is acting on the district attorney's authority, and the district attorney retains the power to take any case back.

What's the difference between this and a Special District Attorney appointment?

A Special District Attorney is appointed by the court (under County Law § 701) to handle a specific case or class of cases when the regular district attorney has a conflict or otherwise cannot act. A delegated county attorney handling routine offense prosecutions is operating under the district attorney's general consent system, not under a § 701 appointment. The two are different statutory routes.

Are misdemeanors "petty"?

The 1998 opinion uses the Soddano / Van Sickle / Czajka line, which has been read to cover misdemeanors and violations as "petty" in the relevant sense (i.e., not the kind of serious offense the district attorney has to handle personally). The Court of Appeals has not always drawn a precise line; the case law treats delegation to administrative or private counsel as acceptable for these categories, with district attorney oversight.

Does this same framework apply to villages and towns?

Yes, broadly speaking. Town and village attorneys can also handle prosecutions for local ordinance violations under the same delegation framework, provided the district attorney has set up a notice and consent system. The 1998 opinion focuses on the county-attorney scenario but the underlying Van Sickle doctrine applies more generally.

Background and statutory framework

County Law § 700(1) is the district attorney's general prosecution authority statute. It assigns the district attorney responsibility for all crimes and offenses in the county. The breadth of the assignment is what makes the Van Sickle delegation doctrine necessary: without delegation, the district attorney would personally have to handle every traffic ticket, every code violation, every trade-licensing offense. The Court of Appeals long ago recognized that result would be unworkable and read § 700(1) to permit consent-based delegation.

County Law § 501 sets the county attorney's duties. The principal duty is to act as the county's civil legal counsel (representing the county in litigation, advising county officials). Subdivision (3) allows additional duties prescribed by law and directed by the board of supervisors. The 1998 opinion treats trade-law prosecution as the kind of "additional duties" that the board of supervisors can assign.

People v Van Sickle, 13 NY2d 61 (1963), is the foundational Court of Appeals case on prosecution delegation. People v Czajka, 11 NY2d 253 (1962), addressed delegation in the context of private prosecutors. People v Soddano, 86 NY2d 727 (1995), confirmed the principle. The string of cited AG opinions (1979-1992) is the administrative trail of this doctrine being applied to specific local-government settings.

Citations

• County Law § 501 (county attorney duties).
• County Law § 501(3) (additional duties directed by board of supervisors).
• County Law § 700(1) (district attorney general prosecution authority).
• People v Soddano, 86 NY2d 727 (1995) (district attorney delegation principle).
• People v Van Sickle, 13 NY2d 61 (1963) (foundational delegation case; consent system requirement).
• People v Czajka, 11 NY2d 253 (1962) (delegation to private attorneys for petty matters).
• Op Atty Gen (Inf) No. 92-70 (same).
• Op Atty Gen (Inf) No. 90-11 (same).
• 1989 Op Atty Gen (Inf) 167 (same).
• 1986 Op Atty Gen (Inf) 123 (same).
• 1983 Op Atty Gen (Inf) 167 (same).
• 1979 Op Atty Gen (Inf) 245 (same).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_98-14_pw.pdf

Original opinion text

OPINIONS OF THE ATTORNEY GENERAL

Page 1 of 2

Opn. No. 98-14
COUNTY LAW §§ 501, 700(1).
A county attorney, with the proper grant of authority, may prosecute violators of Putnam County's
mechanical trade laws, provided that the district attorney has set up a system whereby he or she knows
of all criminal prosecutions in the county and consents to appearances on his or her behalf by the county
attorney.
April 3, 1998
Informal Opinion
No. 98-14

John Carmody, Esq.
Deputy County Attorney
County of Putnam
40 Gleneida Avenue
Carmel, New York 10512
Dear Mr. Carmody:
You have requested our opinion as to who has responsibility for prosecuting violators of Putnam
County's mechanical trade laws. You have explained that violations of these trade laws have been
designated as either misdemeanors or violations and are subject to a fine and/or imprisonment.
Under section 700(1) of the County Law, the district attorney has responsibility to conduct all
prosecutions of crimes and offenses cognizable by the courts of the county. It has long been recognized,
however, that the district attorney and his/her assistants need not personally prosecute every offense
committed within their jurisdiction. People v Soddano, 86 NY2d 727 (1995); People v Van Sickle, 13
NY2d 61 (1963); People v Czajka, 11 NY2d 253 (1962). Petty crimes and offenses may be prosecuted
by administrative officers of a local government and even by private attorneys. Id. The district attorney,
however, by law has the responsibility for prosecution of all crimes and offenses and, therefore, must set
up a system whereby he or she knows of all criminal prosecutions in the county and consents to
appearances on his/her behalf. People v Van Sickle, supra; Op Atty Gen (Inf) No. 92-70; Op Atty Gen
(Inf) No. 90-11; 1989 Op Atty Gen (Inf) 167; 1986 Op Atty Gen (Inf) 123; 1983 Op Atty Gen (Inf) 167;
1979 Op Atty Gen (Inf) 245. Accordingly, a county attorney may act as the prosecuting attorney under a
system established by the district attorney.1 However, it should be noted that the duties of a county
attorney are enumerated in County Law § 501 and that the county attorney may only perform additional
duties "as may be prescribed by law and directed by the board of supervisors." County Law § 501(3).
We conclude that a county attorney, with the proper grant of authority, may prosecute violators of
Putnam County's mechanical trade laws, provided that the district attorney has set up a system whereby
he or she knows of all criminal prosecutions in the county and consents to appearances on his or her
behalf by the county attorney.
The Attorney General renders formal opinions only to officers and departments of the State government.
This perforce is an informal and unofficial expression of the views of this office.
Very truly yours,

YVONNE M. HOVE
Assistant Attorney General