Mount Vernon Mayor Richard Thomas. Photo: Facebook/City of Mount Vernon

A state Supreme Court justice in Manhattan denied a petition to throw out a felony complaint filed by former New York Attorney General Eric Schneiderman against Mount Vernon Mayor Richard Thomas, but agreed that the former AG overstepped his authority.

New York State Supreme Court Justice Arthur Engoron, in a decision issued on Friday, denied the Article 78 petition in Thomas v. Underwood, Index No. 154456/2018, that had asked the court to declare the felony complaint filed by Schneiderman on March 11 was issued in violation of lawful procedure.

The complaint charged Thomas with grand larceny for allegedly stealing campaign and inauguration funds for personal use. The petition also had challenged the authority of the acting attorney general to pursue the case, and asked the court to issue a preliminary injunction against acting Attorney General Barbara Underwood ordering her to cease enforcement actions against Thomas.

Engoron's decision stated that “in the final analysis, if this Court were forced to decide whether or not the AG had the authority to investigate the matters at hand, it would decide that it did not.” Engoron wrote: “Finally, applying [People v.] Cuttita … the AG simply didn't have the power here claimed.”

But, Engoron wrote further, when the Westchester County grand jury indicted Thomas for fraud on May 16, “as a result of the indictment, what had been an attempt to prevent an investigation is now a collateral attack on a criminal case pending in another county.” He wrote that case law precludes Thomas from “seeking injunctive relief in this Court to quash an ongoing criminal prosecution or other proceeding elsewhere.” He denied the petition and dismissed the proceeding.

Engoron said that Thomas would have to challenge the criminal proceeding in the Westchester County court, and secondarily challenge the authority of Underwood in the other court as well. But, he noted “in passing that whatever are the rules of succession for the NYS Attorney General, the idea that the office would not be able to function at all based simply on a vacancy is, to say the least, counter-intuitive.”

Randall W. Jackson, a partner at Boies Schiller Flexner, who represents Thomas, issued a statement Monday saying: “We appreciate the Court's careful consideration of the matter and its sound conclusion that the Attorney General has been engaged in an illegal investigation, in violation of New York's laws and Constitution. We look forward to addressing this issue and other serious problems with this case in the appropriate courts.”

Amy Spitalnick, spokeswoman for Underwood said, “We welcome the court's decision and look forward to proving our case in court.”

Thomas will be arraigned on the indictment on May 25 at 9:30 a.m. before Judge Barry Warhit in White Plains. The case will then be assigned to Judge Anne E. Minihan, according to the Attorney General's Office.