They were found guilty of violating the Racketeer Influenced and Corrupt Organizations statute ( 18 U.S.C. § 1962), and their state indictments were dismissed. The Appellate Division, concluding the appeals were not moot, unanimously affirmed Supreme Court's dismissal of both petitions ( 229 A.D.2d 242). Finding that this case fell considerably short of the possible justiciable controversies reserved in Mulroy v Carey ( 43 N.Y.2d 819, 821), the court applied the traditional test for determining the validity of a superseder order — whether the Governor had acted within constitutional or statutory authority — and concluded that appellants had not made this requisite showing.
August 27, 1997. Reported below, 229 A.D.2d 242, 655 N.Y.S.2d 463. Motion to dismiss appeals denied.
August 27, 1997. Reported below, 229 A.D.2d 242, 655 N.Y.S.2d 463. Motion by appellant Johnson for leave to appeal denied as unnecessary upon the ground that the appeal lies as of right.
Despite the fact that the prosecutor's decision renders the aspects of the decision relating to capital cases inapplicable to this particular case, the issues will be addressed here due to their likelihood of recurrence. ( See, Matter of Johnson v. Pataki, 229 A.D.2d 242, 245, n 1 [1st Dept. 1997].) Although a trial court is usually not in a position to advance such a rationale for ruling on issues which have become "moot", the fact that this court is one of only seven in this judicial district designated to handle capital cases compels the conclusion that these issues will recur before this court and can profitably be addressed at this time.