| Matter of Murray v Hudson |
| 2007 NY Slip Op 06691 [43 AD3d 936] |
| September 11, 2007 |
| Appellate Division, Second Department |
| In the Matter of Camille Murray, Petitioner, v JamesHudson, as Judge of the Suffolk County Court, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Charles F. Sanders of counsel), forrespondent James Hudson. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Steven A. Hovani and Linda A.Ruggieri of counsel), respondent pro se.
Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibitJames Hudson, a Judge of the County Court, County of Suffolk, from enforcing an order datedFebruary 21, 2007, in a criminal action entitled People v Murray, pending underindictment No. I-1805-06, which directed the petitioner's attorney to produce certain records inhis possession which were subpoenaed by the People from a nonparty, and disqualified thepetitioner's attorney as defense counsel in that criminal action, and in the nature of mandamus tocompel James Hudson to grant certain motions, or alternatively, to render a decision on motionspending before him in that criminal action.
Adjudged that the petition is denied and the proceeding is dismissed, without costs ordisbursements; and it is further,
Ordered that the temporary restraining order contained in the order to show cause datedMarch 7, 2007 is vacated.[*2]
The petitioner commenced this CPLR article 78proceeding in the nature of prohibition seeking, inter alia, to prohibit enforcement of an orderdated February 21, 2007 in a criminal action pending against her in the County Court, SuffolkCounty, before Judge James Hudson, which directed her counsel to forward all records hereceived from the petitioner's employer to the subpoena records clerk's office of that court, anddisqualified her counsel from representing her in the underlying criminal action, and in the natureof mandamus to compel Judge James Hudson to grant certain motions, or alternatively, to rendera decision on motions pending before him in that criminal action.
According to the petitioner, before the People served a subpoena on her employer for therecords at issue, her employer gave her possession of them. She contends that the order directingher attorney to deliver the records to the subpoena records clerk's office improperly granted thePeople discovery from her which exceeded that to which they are statutorily entitled. We rejectthe premise underlying the petitioner's argument, which is that by getting possession of thethird-party records before the subpoena was served upon her employer, she was entitled to shieldthem from the People, even if the records were the proper subject of a subpoena from the People.
In general, "a subpoena duces tecum may not be used for the purpose of discovery or toascertain the existence of evidence (People v Gissendanner, 48 NY2d 543, 551). 'Rather,its purpose is "to compel the production of specific documents that are relevant and material tofacts at issue in a pending judicial proceeding" ' (Matter of Constantine v Leto, 157AD2d 376, 378, affd for reasons stated 77 NY2d 975)" (Matter of Terry D., 81NY2d 1042, 1044 [1993]). In this case, the People had a right to subpoena the records from thepetitioner's employer, as the records are relevant and material to her alibi defense. Because thePeople had a right to subpoena these documents from a nonparty to the criminal action, and theydid not thereby seek improper discovery from the petitioner, the County Court did not act withoutjurisdiction or in excess of its authorized powers when it directed the petitioner's counsel todeliver the documents to the subpoena records clerk's office (see People v Parker, 307AD2d 538 [2003]), and the petitioner has no clear legal right to prevent the People fromobtaining the documents. Hence, prohibition does not lie (see Matter of Holtzman vGoldman, 71 NY2d 564, 569 [1988]).
Moreover, the extraordinary remedy of a writ of prohibition does not lie to seek collateralreview of the issue of disqualification of the petitioner's attorney (see Matter of Lipari vOwens, 70 NY2d 731, 733 [1987]; Matter of Kavanagh v Vogt, 58 NY2d 678[1982]; Matter of Newell v Demakos, 232 AD2d 564 [1996]; Matter of Cambria vAdams, 161 AD2d 1180 [1990]).
So much of the petition as seeks a writ of mandamus compelling Judge Hudson to render aparticular decision granting the petitioner's pending motions to dismiss the indictment must bedismissed on the ground that mandamus does not lie to direct a subordinate judicial tribunal todecide a matter pending before it in a particular manner, where the decision that is soughtinvolves the exercise of discretion or judgment, and is not merely ministerial in nature (seeMatter of Crain Communications v Hughes, 74 NY2d 626, 628 [1989]; Klostermann vCuomo, 61 NY2d 525, 540-541 [1984]; Matter of Legal Aid Socy. of Sullivan County vScheinman, 53 NY2d 12, 22 [1981]; Matter of DeCintio v Cohalan, 18 AD3d 872 [2005]; Matter ofDyno v Rose, 260 AD2d 694, 698 [1999]; Matter of Giordano v Mackston, 240AD2d 578 [1997]).
While mandamus may sometimes lie to compel a court to decide a motion in the firstinstance (see Matter of Law Offs. ofRussell I. Marnell, P.C. v Blydenburgh, 26 AD3d 495 [2006]), in this [*3]case the petitioner did not establish a clear right to that relief, as theCounty Court acted within its authority in deferring decision on the pending motions until thepetitioner retained new counsel. Mastro, J.P., Covello, Angiolillo and Dickerson, JJ., concur.