Introduction

In People v. Callara, the New York Court of Appeals resolved a recurring and practically consequential question for criminal prosecutions when a local District Attorney (DA) is disqualified: is the statutory residency requirement for a court-appointed Special District Attorney under County Law § 701(1)(a) a waivable irregularity, or a jurisdictional prerequisite that cannot be forfeited by a defendant’s failure to object? The Court answered unequivocally that it is the latter.

The case arose in Orleans County, where the elected District Attorney sought disqualification due to a relationship with the alleged victim in a larceny case against defendant Dino J. Callara. County Court appointed a Special District Attorney under County Law § 701(1)(a). It was undisputed that the appointee neither resided nor maintained an office in Orleans County or any adjoining county—a direct clash with the statute’s plain terms.

Callara did not raise the defect at trial. After conviction, he argued on appeal that the appointment exceeded the court’s authority. The Appellate Division agreed and dismissed the indictment. On further appeal by the People, with the District Attorneys Association of the State of New York appearing as amicus, the Court of Appeals affirmed. The decision squarely holds that compliance with the § 701 residency requirement is a nonwaivable condition of valid prosecutorial authority when the judiciary replaces an elected DA in a particular case.

Summary of the Opinion

• County Law § 701(1)(a) limits judicial appointments of Special District Attorneys to “some attorney at law having an office in or residing in the county, or any adjoining county.” Because the appointee here had no office in and did not reside in Orleans County or any adjoining county, the appointment violated the statute.
• The court’s authority to displace an elected DA derives solely from § 701. Given separation-of-powers concerns and the statute’s “exceptional superseder” function, courts must adhere strictly to its plain terms.
• The residency requirement is not a mere procedural irregularity—it is a jurisdictional prerequisite to a valid appointment and prosecution under § 701. The defect is not subject to waiver or forfeiture; it may be raised on appeal even if not preserved at trial.
• Distinguishing precedents involving assistant district attorneys (appointed by an elected DA), the Court emphasized that when the judiciary appoints a substitute prosecutor, strict statutory compliance is essential.
• Policy concerns about the difficulty of finding eligible special prosecutors in rural counties cannot justify judicial departure from the statute; any fix must come from the legislature.
• Remedy: The indictment must be dismissed to preserve the integrity of § 701’s carefully cabined displacement of an elected constitutional officer.

Analytical Commentary

Precedents Cited and Their Role

The Court’s analysis is anchored in People v. Leahy, 72 N.Y.2d 510 (1988), and it carefully distinguishes Matter of Haggerty v. Himelein, 89 N.Y.2d 431 (1997), as well as People v. Dunbar, 53 N.Y.2d 868 (1981), and People v. Carter, 77 N.Y.2d 95 (1990).

People v. Leahy (1988)

• In Leahy, a court-appointed Special DA presented charges to a grand jury before a valid appointment order covered that defendant. A later order did not validate the earlier acts or state nunc pro tunc effect. The Court dismissed the indictment, insisting on strict adherence to § 701 in light of the “exceptional superseder” authority that displaces an elected DA.
• Key quotations carried forward here: the judiciary’s supersession of an elected, executive-branch officer through § 701 is “exceptional,” should not be “expansively interpreted,” and must hew to the statute’s “plain language” because it touches the separation of powers.
• Leahy’s core teaching—that judicial power to appoint in place of the elected DA is strictly limited by § 701—supplies the decisive frame for Callara.

Matter of Haggerty v. Himelein (1997), People v. Dunbar (1981), and People v. Carter (1990)

• Each involved assistant district attorneys appointed by an elected DA. In Haggerty, the attorney general and assistants acted as ADAs to assist, while the elected DA retained ultimate authority; the Court held no legal barrier prevented such assistance absent a governor’s supersession under Executive Law § 63(2).
• Haggerty’s footnote, citing Dunbar and Carter, observed that ADA eligibility requirements (such as residency under Public Officers Law § 3(1)) are not “jurisdictional in nature,” and thus defects might be subject to waiver or harmless error principles in that context.
• Callara distinguishes these cases on a structural ground: assistant DAs appointed by an elected DA involve intra-executive appointments and do not displace the elected DA’s constitutional role. By contrast, § 701 empowers a court—another branch—to substitute a prosecutor for the elected DA in a particular case, triggering separation-of-powers sensitivities that require strict statutory compliance.
• Thus, ADA cases do not control when the judiciary invokes § 701 to supplant the elected DA’s prosecutorial authority.

Executive Law § 63(2)

• Leahy emphasized, and Callara reiterates, that gubernatorial supersession under § 63(2) is internal to the executive branch, whereas § 701 appointments are judicial acts displacing an executive officer. This executive-versus-judicial distinction justifies treating § 701’s text as a hard limit, not a flexible guideline.

Legal Reasoning and Doctrinal Moves

The Court’s reasoning proceeds in three interlocking steps: textual fidelity, separation-of-powers constraints, and the consequence of noncompliance.

1) Textual fidelity to § 701(1)(a)

• The statute authorizes a court to appoint “some attorney at law having an office in or residing in the county, or any adjoining county” as a Special DA when the elected DA is disqualified (as well as in cases of absence or inability).
• That qualifying language is not hortatory; it expresses a condition on the court’s power. The court has no authority to appoint an attorney who lacks both an office in and residency within the specified geographic bounds.

2) Separation of powers: the “exceptional superseder” lens

• Displacing an elected district attorney—a constitutional officer of the executive branch—by judicial appointment is a delicate exercise the legislature authorized only in a narrow way. Strict compliance is needed “to preserve the integrity of a statute designed narrowly by its terms and by its purpose to fill emergency gaps in an elected prosecutorial official’s responsibility” (quoting Leahy).
• Reading the residency requirement as a mere irregularity would “change the character of the statutory limitation” on this exceptional authority. The “exceptional superseder authority should not be expansively interpreted.”

3) Consequence of noncompliance: jurisdictional defect, not waivable

• Because the judiciary’s appointment power exists solely by virtue of § 701, any appointment that contravenes § 701’s residency terms is ultra vires. The prosecution led by an ultra vires appointee is void, not voidable.
• As a result, the defect is nonwaivable. A defendant’s failure to object before or during trial does not validate the unauthorized appointment. The issue may be raised for the first time on appeal, and the appropriate remedy is dismissal of the indictment.
• The Court’s approach implicitly forecloses harmless-error analysis and aligns the defect with structural errors that undermine the lawful exercise of prosecutorial power at its source.

Legislative context and restraint

• The Court notes the legislature has calibrated § 701’s geographic limits before: the “adjoining county” language was first adopted in 1983 specifically for Orleans County and expanded statewide in 1991. That history confirms the residency/office-location limitation is a considered policy choice, not a mere default.
• Practical difficulties in rural counties do not justify judicial revision; the “remedy… lies in amendment of the statute by the legislature, not disregard of the plain statutory text by the courts.”

Practical and Systemic Impact

The decision has immediate and far-reaching consequences for courts, prosecutors, defense counsel, and the legislature:

For trial courts

• Courts must verify and make a record of the appointee’s qualifying office location or residency before issuing a § 701 appointment. Orders should clearly identify the statutory basis, specify the case, and confirm compliance with the geographic requirement.
• Where compliance under § 701(1)(a) is untenable, courts should consider § 701(1)(b), which allows appointment of a sitting district attorney from another county within the judicial department, or from any adjoining county, provided the DA accepts.

For prosecutors

• District Attorneys seeking recusal or disqualification must coordinate with courts to ensure any proposed special appointee satisfies § 701’s qualifications. Papering the record (e.g., affidavit attesting office location/residency) is prudent.
• Rural offices facing limited pools should plan ahead—e.g., cultivating reciprocity with neighboring DAs for § 701(1)(b) appointments pending any legislative changes.

For defense counsel

• While Callara makes clear that noncompliance is nonwaivable, defense counsel should raise § 701 defects immediately to avoid unnecessary proceedings and to preserve related arguments (e.g., scope of authority, timing of appointment versus grand jury presentation).
• Counsel should request and review the appointment order and any supporting materials establishing residency or office location, especially when correspondence reflects non-adjoining county addresses.

For ongoing and concluded cases

• Convictions or indictments secured by § 701 appointees who did not meet the residency/office requirement are vulnerable to dismissal on direct appeal. The Court’s rationale is not limited to indictments; it concerns the validity of the prosecution itself under an ultra vires appointment.
• As a general matter, a dismissal on this ground is not a merits-based adjudication and typically does not bar reprosecution, provided the People proceed with a duly authorized prosecutor and other bars (double jeopardy, limitations) do not apply. Parties should evaluate those collateral constraints case-by-case.

For the legislature

• If the current residency/office-location limitation unduly strains rural counties, the legislature may consider calibrated adjustments—e.g., broadening eligible geography for private attorneys under § 701(1)(a) (such as to “within the judicial department” or statewide), facilitating inter-county DA appointments, or providing resources for cross-county prosecutorial assistance.
• The opinion’s historical review underscores that the legislature has already tailored § 701 once for Orleans County and later statewide; further tailoring is a policy choice for Albany, not for courts.

Complex Concepts, Simplified

• Jurisdictional prerequisite: A condition that must be satisfied for a court or official to have lawful power to act. If unsatisfied, the resulting action is void—not merely erroneous—and cannot be cured by waiver.
• Separation of powers: The constitutional principle dividing governmental authority among the legislative, executive, and judicial branches. Replacing an elected executive officer (the DA) with a court-appointed substitute heightens separation-of-powers concerns, so the enabling statute (§ 701) is read strictly.
• Exceptional superseder authority: The limited, exceptional authority granted to courts by § 701 to appoint a prosecutor in place of the elected DA for a particular case. Because it displaces a constitutional officer, courts must follow the statute’s requirements to the letter.
• Waiver vs. nonwaivable defect: Many trial errors can be forfeited or deemed harmless if not timely raised. A nonwaivable, jurisdictional defect—like an ultra vires § 701 appointment—can be raised at any time, including for the first time on appeal.
• Nunc pro tunc: Latin for “now for then”—an order that retroactively corrects or validates a prior act. In Leahy, a later order did not state nunc pro tunc effect and could not cure the earlier lack of authority. Callara reinforces that the authority must exist at the time it is exercised under § 701.
• Adjoining county: A county that shares a border with the county where the case is triable. Under § 701(1)(a), the appointee must either reside or maintain an office in the county or in an adjoining county.
• Assistant District Attorney (ADA) versus Special District Attorney: An ADA is appointed by and serves under the elected DA (intra-executive). A Special DA under § 701 is appointed by a court to act in place of the DA in a particular case (inter-branch), making statutory limits far more exacting.

Guidance for Practitioners

Check the appointment instrument

• Obtain and scrutinize the § 701 appointment order. Confirm it identifies the specific case, cites the correct subdivision, and states facts establishing office location or residency within the county or an adjoining county.
• Align all correspondence and filings with the appointment record. Discrepancies (e.g., stationary listing an address in a non-adjoining county) should be reconciled or corrected on the record.

Use § 701(1)(b) where appropriate

• If no qualifying private attorney is available under § 701(1)(a), ask whether a DA from within the judicial department or from an adjoining county can serve under § 701(1)(b), subject to consent.

Anticipate and avoid nullification

• Prosecutorial actions taken by an unqualified § 701 appointee—including grand jury presentations—are vulnerable to invalidation. Early verification averts waste and downstream dismissal.

Appellate posture

• Because Callara treats the defect as nonwaivable, defendants can raise § 701 noncompliance for the first time on appeal. Prosecutors should evaluate records in pending appeals and consider whether a concession and re-presentation strategy is warranted in clear noncompliance cases.

Legislative engagement

• Offices in rural regions may consider advocating for legislative clarification or expansion of eligible appointees under § 701(1)(a), especially given the Court’s emphasis that any fix must come from the legislature.

Conclusion

People v. Callara cements a clear rule: the residency/office-location requirement in County Law § 701(1)(a) is a jurisdictional prerequisite to a valid judicial appointment of a Special District Attorney and, therefore, to a valid prosecution by that appointee. The defect is nonwaivable; it can be raised for the first time on appeal; and the remedy is dismissal of the indictment to safeguard “the integrity of a statute designed narrowly by its terms and by its purpose to fill emergency gaps in an elected prosecutorial official’s responsibility.”

By reaffirming Leahy’s strict construction of § 701 and distinguishing ADA cases like Haggerty, Dunbar, and Carter, the Court underscores the constitutional stakes when the judiciary displaces an elected executive officer. The opinion will recalibrate practices in trial courts and prosecutor’s offices statewide, with immediate implications for pending cases and a likely spur toward legislative reassessment of § 701’s geographic limits—especially for rural jurisdictions. Until then, Callara’s message is unmistakable: appointment authority ends at the county line unless the statute expressly says otherwise, and statutory exceptions must be scrupulously honored.

Key Citations

• County Law § 701(1)(a), (b)
• People v. Leahy, 72 N.Y.2d 510 (1988)
• Matter of Haggerty v. Himelein, 89 N.Y.2d 431 (1997)
• People v. Dunbar, 53 N.Y.2d 868 (1981)
• People v. Carter, 77 N.Y.2d 95 (1990)
• Executive Law § 63(2)
• Public Officers Law § 3(1)