People v. Cuttita

the State Welfare Inspector General was not statutorily authorized to prosecute him for knowingly operating an adult care facility without a license in violation of Social Services Law § 461-b (2) (c). Under the circumstances of this case, we agree that the Welfare Inspector General (WIG) lacked jurisdiction under the relevant statutes.

Since the mid-1980s, defendant has been engaged in a dispute with state authorities regarding several properties in the Town of Liberty, Sullivan County, that defendant operated as communal residences for adults (see Perales v Cuttita, 127 AD2d 960 [3d Dept 1987]). The State has maintained that the residences are unlicensed adult care facilities for persons who have “physical or other limitations associated with age, physical or mental disabilities or other factors” and are therefore “unable or substantially unable to live independently” (Social Services Law § 2 [21]). An adult care facility that offers long-term care to fewer than five adults unrelated to the operator is categorized as a “family type home for adults” (Social Services Law § 2 [22]) and must be licensed by the State Office of Children and Family Services (OCFS) (see Social Services Law § 460-b ^[1]; § 461-b [2] [a]; L 1997, ch 436, part B, § 122 [d]). A facility that provides similar care to five or more adults unrelated to the operator is designated as a “residence for adults” (Social Services Law § 2 [24]) or, if direct or indirect personal care is provided, an “adult home” (Social Services Law § 2 [25]), both of which must be licensed by the State Department of Health (DOH) (see Social Services Law § 460-b ^[1]; § 461-b [2] [a]; L 1997, ch 436, part B, § 122 [e]).^[1]

Defendant has objected to applying for licenses from either DOH or OCFS on the basis that the properties are merely boarding houses not subject to state oversight and accreditation requirements. For a time, he successfully avoided the State’s efforts to regulate the homes and his activities (see Perales v Cuttita, 127 AD2d at 961 ). In 1999, however, DOH received a complaint about defendant’s operations and subsequently

obtained a court order granting access to the residences. As a result of these inspections, DOH determined that defendant was operating adult care facilities without a license. After a hearing, an Administrative Law Judge substantially agreed with DOH’s assessment and concluded that defendant had violated Social Services Law § 460-b (1) and § 461-b (2) by failing to obtain a license from DOH for the operation of an adult home.^[2] Defendant was ordered to close the facility and pay a civil penalty of $1,000 per day of unlicensed operation after notification of DOH’s decision. Also, in 1999, the WIG issued a written request to the Attorney General asking for an investigation of “any indictable offense or offenses in violation of the law which the Welfare Inspector General is especially required to execute.”

Two judicial proceedings — one civil and one criminal — were then initiated against defendant. The Attorney General commenced a civil action seeking, among other relief, a permanent injunction to prohibit defendant from operating an adult care facility. Supreme Court found that the conclusions of the Administrative Law Judge were supported by substantial evidence and permanently enjoined defendant from operating an unlicensed adult care facility (People v Cuttita, 1 Misc 3d 904 [A], 2003 NY Slip Op 51506 [U] [2003]). The Appellate Division affirmed Supreme Court’s order (see Matter of People v Cuttita, 12 AD3d 881 [3d Dept 2004], lv denied 4 NY3d 706 [2005]).

Defendant was also charged in the Town of Liberty Justice Court with one misdemeanor count of knowingly operating an adult care facility between June 1992 and October 2001 without written approval in violation of Social Services Law § 461-b (2) (c). The case was prosecuted primarily by an attorney affiliated with the office of the WIG, who was also designated a Special Assistant Attorney General.^[3] On the eve of trial, defendant moved to dismiss the accusatory instrument, claiming that the WIG lacked jurisdiction to prosecute him under Executive Law § 74 (3) (d), which allows the WIG to initiate criminal actions

fendant failed to comply with the regulations that apply to programs operated by DOH and OCFS.

The current structure and scope of authority of the office of the WIG is described in section 74, which was enacted as part of a comprehensive legislative package designed “[t]o implement cost containment initiatives and other cost, reduction measures which will control Medicaid expenditure growth and produce savings for the State and local governments” (Mem in Support, Bill Jacket, L 1992, ch 41, at 9). Although the office of the WIG is empowered “to conduct and supervise investigations relating to the programs of the department of social services” (Executive Law § 74 [3] [b]), the statute limits the nature of its “investigations” to “fraud, abuse, or illegal acts perpetrated within the department of social services or local social services districts, or by contractees or recipients of public assistance services” (Executive Law § 74 [1] [b]). The WIG’s authority to initiate criminal prosecutions is similarly restricted in section 74 (3) (d) to matters involving “fraud, abuse or illegal acts perpetrated within the department of social services or local social services districts, or by contractees or recipients of public assistance services” (Executive Law § 74 [3] [d]).^[4]

Rather than vesting the WIG with a wide-ranging mandate to investigate and prosecute any programs or matters regulated by DOH or OCFS, the Legislature chose to confine the WIG’s prosecutorial authority to fraud and illegality occurring “within the department of social services or local social services districts” (see Executive Law § 74 [3] [d]). Thus, the WIG’s efforts, under this provision, must be limited to exposing fraudulent or criminal acts committed inside those governmental entities. The statute contemplates enforcement authority against, for example, illegal activities by state employees in connection with government-run programs, individuals who improperly obtain government benefits and, perhaps, those who seek to obtain a required license by making fraudulent statements or submitting false documents. But defendant was neither a state employee nor a contractee or recipient of government assistance services. And since he has steadfastly maintained that his facility was

Here, the WIG contends that his 1999 letter requesting that the Attorney General investigate and prosecute certain matters was sufficient to invoke the Attorney General’s section 63 (3) prosecutorial powers, which the WIG could then exercise because his office is subsumed within the Department of Law (see Executive Law § 74 [2] [a]). We disagree. Even assuming that the WIG is the “head” of a “department, authority, division or agency of the state” who is authorized under Executive Law § 63 (3) to submit a written request for prosecution to the Attorney General, the correspondence requested the Attorney General to:

“investigate the alleged commission of any indictable offense or offenses in violation of the law which the Welfare Inspector General is especially required to execute or in relation to any matters connected to the Office of the Welfare Inspector General and that you prosecute the person or persons believed to have committed the same and any crime or offense arising from such investigation or prosecution” (emphasis added).

Investigating adult care facilities and ensuring compliance with Social Services Law § 461-b (2) (c) and other licensing requirements are the responsibility of DOH and OCFS (see Social Services Law § 460-b [1]; § 461-b [2] [a]; L 1997, ch 436, part B, § 122 [d], [e]). Thus, it follows that the operation of an unlicensed adult care facility neither involves a law that the WIG is required to execute nor pertains to a “matter[ ] connected with” the WIG (Executive Law § 63 [3]).^[5] Hence, the WIG cannot trigger the Attorney General’s authority under Executive Law § 63 (3) to prosecute a matter that is not encompassed within the WIG’s statutory powers. Consequently, defendant’s conviction cannot stand and the complaint must be dismissed (see People v Gilmour, 98 NY2d at 132 ).