2 No. 49
   The People &c.,
   Appellant,
   v.
   Thomas Gilmour,
   Respondent.
     _________________________________________________________________

   2002 NY Int. 52

   May 2, 2002

   This opinion is uncorrected and subject to revision before publication
   in the New York Reports.

   Robin A. Forshaw, for appellant.
   Michelle Fox, for respondent.
     _________________________________________________________________

   ROSENBLATT, J.:

   On this appeal, we must determine when the Attorney General may
   undertake prosecution of a criminal case pursuant to Executive Law
   63(3). Most criminal prosecutions are conducted by District Attorneys,
   who are authorized to prosecute "crimes and defenses cognizable by the
   courts of the count(ies)" in which they serve (County Law §  700). The
   District Attorney's prosecutorial power, however, is not exclusive.
   The Legislature has authorized the Attorney General to prosecute
   crimes upon the request of certain officials, including "the head of
   any * * * department, authority, division or agency of the state"
   (Executive Law §  63(3) (emphasis added)). In the case before us, the
   request to prosecute was made not by the department head but by the
   department's counsel. The Appellate Division concluded that
   defendant's resulting conviction was a nullity because it was not
   clear that the head of the department (the Superintendent of State
   Police) authorized the request or even knew of it. We hold that the
   prosecutorial request did not conform to Executive Law §  63(3), and
   therefore affirm the order of the Appellate Division reversing
   defendant's conviction and dismissing the indictment.

I.

   Based on a tip from defendant's former girlfriend, the Attorney
   General's office and the State Police conducted an investigation that
   gave rise to a search warrant for defendant's home. Executing that
   warrant, investigators found 44 images of child pornography on